Compensation; Exculpation; Indemnity. (a) Except as set forth in Section 14.1 and any agreement among the Stockholders’ Representative and the Stockholders, the Stockholders’ Representative shall not be entitled to any fee, commission or other compensation for the performance of its service hereunder. (b) In dealing with this Agreement, the Escrow Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative hereunder or thereunder, (i) the Stockholders’ Representative shall not assume any, and shall incur no, responsibility whatsoever to any Stockholder by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, the Escrow Agreement or any other Transaction Document, except in the event of liability directly resulting from the Stockholders’ Representative’s Fraud, gross negligence or willful misconduct, and (ii) the Stockholders’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Representative pursuant to such advice shall in no event subject the Stockholders’ Representative to liability to any Stockholder except in the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. Except as set forth in the previous sentence, in the absence of Fraud and other than in respect of breach or non-fulfillment of any covenants or agreements hereunder, the Stockholders’ Representative, in its role as Stockholders’ Representative, shall have no liability whatsoever to the Company, the Parent, Merger Sub or any other Person. (c) Each Stockholder, severally (but not jointly), shall indemnify, defend and hold harmless the Stockholders’ Representative, which indemnification shall be paid by such Stockholders pro rata in accordance with the portion of the aggregate amounts received by such Person under Article IV, against all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and all expenses of document location, duplication and shipment and the amount of any judgment against it, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”), arising out of or in connection with the execution or the acts or omissions of the Stockholders’ Representative hereunder, or under the Escrow Agreement, in each case as such Stockholders’ Representative Loss is suffered or incurred; provided that Stockholders’ Representative Losses shall not include special, indirect, punitive or consequential damages of any kind whatsoever (including but not limited to lost profits of the Stockholders’ Representative), but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders the amount of such indemnified Stockholders’ Representative Loss to the extent attributable to such Fraud, gross negligence or willful misconduct. In no event will the Stockholders’ Representative be required to advance its own funds on behalf of the Stockholders or otherwise. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Representative may be entitled apart from the provisions hereof. In the event of any indemnification under this Section 14.2(c), each Stockholder shall promptly deliver to the Stockholders’ Representative full payment of his, her or its ratable share of such indemnification claim. (d) All of the indemnities, immunities and powers granted to the Stockholders’ Representative under this Agreement shall survive the Closing or any termination of this Agreement and the Escrow Agreement, and the foregoing indemnities and immunities will survive the resignation or removal of the Stockholders’ Representative.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (C&J Energy Services, Inc.)
Compensation; Exculpation; Indemnity. (a) Except as set forth in Section 14.1 and any agreement among the Stockholders’ Representative and the Stockholders, the Stockholders’ Representative The Agent shall not be entitled to any fee, commission or other compensation for the performance of its service hereunderservices as such, but shall be entitled to the payment of all of its expenses incurred as Agent, and in furtherance of the foregoing, may pay or cause to be paid or reimburse itself for the payment of any and all such expenses out of amounts payable from the Escrow Fund or the Expense Escrow Fund to the Company Shareholders (other than any holder of Dissenting Shares).
(b) In dealing with this Agreement, the Escrow Agreement and the Expense Escrow Fund, and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative hereunder or thereunderAgent hereunder, (i) the Stockholders’ Representative shall not assume any, Agent assumes and shall incur no, no responsibility whatsoever to any Stockholder Company Shareholder by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, the Escrow Agreement or the Expense Escrow Agreement or any such other Transaction Documentagreement, except in the event of liability directly resulting from the Stockholders’ Representative’s Fraudinstrument or document, excepting only responsibility for any act or failure to act which represents gross negligence or willful misconduct, and (ii) the Stockholders’ Representative Agent shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Representative Agent pursuant to such advice shall in no event subject the Stockholders’ Representative Agent to liability to any Stockholder except in the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. Except as set forth in the previous sentence, in the absence of Fraud and other than in respect of breach or non-fulfillment of any covenants or agreements hereunder, the Stockholders’ Representative, in its role as Stockholders’ Representative, shall have no liability whatsoever to the Company, the Parent, Merger Sub or any other PersonCompany Shareholder.
(c) Each StockholderCompany Shareholder (other than any holder of Dissenting Shares), severally severally, shall indemnify the Agent (up to, but not jointly)exceeding, shall indemnify, defend and hold harmless an amount equal to the Stockholders’ Representative, which indemnification shall be paid by distributions due to such Stockholders pro rata in accordance with Company Shareholder from the portion of the aggregate amounts received by such Person under Article IV, Escrow Fund) against all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’', accountants’ ' and other experts’ ' fees and all expenses of document location, duplication and shipment and the amount of any judgment against itthem, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”)whatsoever, arising out of or in connection with the execution any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Stockholders’ Representative hereunderAgent under this Agreement, or under the Escrow Agreement, in each case as such Stockholders’ Representative Loss is suffered Agreement or incurred; provided that Stockholders’ Representative Losses shall not include special, indirect, punitive or consequential damages of any kind whatsoever (including but not limited to lost profits of the Stockholders’ Representative), but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders the amount of such indemnified Stockholders’ Representative Loss to the extent attributable to such Fraud, gross negligence or willful misconduct. In no event will the Stockholders’ Representative be required to advance its own funds on behalf of the Stockholders Expense Escrow Agreement or otherwise. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Representative Agent may be entitled apart from the provisions hereof. In The foregoing indemnification shall not apply in the event of any indemnification under this Section 14.2(c), each Stockholder shall promptly deliver to action or proceeding which finally adjudicates the Stockholders’ Representative full payment liability of his, her the Agent for its gross negligence or its ratable share of such indemnification claimwillful misconduct.
(d) All of the indemnities, immunities and powers granted to the Stockholders’ Representative Agent under this Agreement shall survive the Closing or and/or any termination of this Agreement and Agreement, the Escrow Agreement and/or the Expense Escrow Agreement, and the foregoing indemnities and immunities will survive the resignation or removal of the Stockholders’ Representative.
Appears in 1 contract
Samples: Merger Agreement (Andal Corp)
Compensation; Exculpation; Indemnity. (a) Except as set forth in Section 14.1 and any agreement among the Stockholders’ Representative and the Stockholders, the Stockholders’ The Representative shall not be entitled to any fee, commission or other compensation for the performance of its service services hereunder., but shall be authorized to be reimbursed from the Representative Holdback Amount for any costs, expenses or other fees that may be paid or borne by the Representative in acting as the Representative of the Sellers pursuant to this Article X.
(b) In dealing with this Agreement, the Escrow Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative hereunder or thereunder, (i) the Stockholders’ Representative shall not assume any, and shall incur no, responsibility whatsoever to any Stockholder Seller by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or the Escrow Agreement, unless by the Escrow Agreement or any other Transaction Document, except in the event of liability directly resulting from the Stockholders’ Representative’s Fraud, gross negligence or willful misconduct, and (ii) the Stockholders’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Representative pursuant to such advice shall in no event subject the Stockholders’ Representative to liability to any Stockholder except in Seller, unless by the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. Except as set forth in the previous sentence, in notwithstanding anything to the absence of Fraud and other than in respect of breach or non-fulfillment of any covenants or agreements hereundercontrary contained herein, the Stockholders’ Representative, in its role as Stockholders’ RepresentativeRepresentative of the Sellers, shall have no liability whatsoever to the any Acquired Company, Buyer, the Parent, Merger Sub Sellers or any other Person.
(c) Each StockholderSeller, severally (severally, shall indemnify the Representative up to, but not jointly)exceeding, shall indemnify, defend and hold harmless the Stockholders’ Representative, which indemnification shall be paid by an amount equal to such Stockholders Seller’s pro rata portion of the total amount, as determined in accordance with such Seller’s Percentage Interest and in no event exceeding the net portion of the aggregate amounts Purchase Price actually received by such Person under Article IVSeller, against of all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and all expenses of document location, duplication and shipment and the amount of any judgment against it, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”)whatsoever, arising out of or in connection with the execution any claim or in connection with any appeal thereof, relating to the acts or omissions of the Stockholders’ Representative hereunder, hereunder or under relating to the Escrow Agreement, in each case as except for such Stockholdersdamages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ Representative Loss is suffered or incurred; provided that Stockholdersand other experts’ Representative Losses shall not include special, indirect, punitive or consequential damages of any kind whatsoever (including but not limited to lost profits of the Stockholders’ Representative), but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders fees and the amount of such indemnified Stockholders’ any judgment against the Representative Loss to that arise from the extent attributable to such Fraud, gross negligence or Representative’s willful misconduct. In no event will , including the Stockholders’ Representative be required to advance its own funds on behalf willful breach of the Stockholders or otherwisethis Agreement. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Representative may be entitled apart from the provisions hereof. In the event of any indemnification under this Section 14.2(c)10.02, each Stockholder Seller shall promptly deliver to the Stockholders’ Representative full payment of his, her or its ratable share of such indemnification claim.
(d) At such time as the remaining amount of the Escrow Account is distributed to the Representative on behalf of the Sellers pursuant to Section 2.03(b), the Representative shall distribute to the Sellers in accordance with their respective Percentage Interests the remaining amount, if any, of the Representative Holdback Amount.
(e) All of the indemnities, immunities and powers granted to the Stockholders’ Representative under this Agreement shall survive the Closing or and/or any termination of this Agreement and the Escrow Agreement, and the foregoing indemnities and immunities will survive the resignation or removal of the Stockholders’ Representative.
Appears in 1 contract
Samples: Stock Purchase Agreement (Amc Entertainment Holdings, Inc.)
Compensation; Exculpation; Indemnity. (a) Except as set forth in Section 14.1 and any agreement among the 10.5.1 Company Stockholders’ Representative and the Stockholders, the Stockholders’ Representative shall Representatives will not be entitled to any fee, commission commission, or other compensation for the performance of its service their services hereunder, but will be entitled to the payment of all of their out-of-pocket expenses incurred as Company Stockholders’ Representatives, and in furtherance of the foregoing, may pay or cause to be paid or reimburse itself for the payment of any and all such expenses out of any amounts released from the Escrow Account for Company Stockholders’ benefit.
(b) 10.5.2 In dealing with this Agreement, the Escrow Agreement Agreement, and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Company Stockholders’ Representative Representatives hereunder or thereunder, (i) the Company Stockholders’ Representative shall Representatives will not assume any, and shall will incur no, responsibility liability whatsoever to any Company Stockholder by reason because of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, Agreement or the Escrow Agreement or any other Transaction Document, except in the event of liability directly resulting from the Stockholders’ Representative’s Fraud, gross negligence or willful misconduct, Agreement; and (ii) the Company Stockholders’ Representative shall Representatives will be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Company Stockholders’ Representative Representatives pursuant to such advice shall in no event will not subject the Company Stockholders’ Representative Representatives to liability to any Stockholder except in the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. Except as set forth in the previous sentence, in the absence of Fraud and other than in respect of breach or non-fulfillment of any covenants or agreements hereunder, the Stockholders’ Representative, in its role as Stockholders’ Representative, shall have no liability whatsoever to the Company, the Parent, Merger Sub or any other PersonCompany Stockholder.
(c) Each Stockholder10.5.3 Losses suffered, severally (but not jointly), shall indemnify, defend and hold harmless the Stockholders’ Representative, which indemnification shall be paid sustained or incurred by such Stockholders pro rata in accordance with the portion of the aggregate amounts received by such Person under Article IV, against all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and all expenses of document location, duplication and shipment and the amount of any judgment against it, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”), arising out of or in connection with the execution or the acts or omissions of the Stockholders’ Representative hereunder, or under the Escrow Agreement, in each case as such Stockholders’ Representative Loss is suffered or incurred; provided that Stockholders’ Representative Losses Company Stockholder shall not include specialany costs or expenses incurred by Company Stockholders’ Representatives in exercising their rights or fulfilling their obligations hereunder. Notwithstanding anything to the contrary in this Agreement, indirect, punitive or consequential damages of any kind whatsoever (including but not limited to lost profits none of the Parent Parties shall be liable for such costs or expenses incurred by the Company Stockholders’ Representative), but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders the amount of such indemnified Stockholders’ Representative Loss to the extent attributable to such Fraud, gross negligence or willful misconduct. In no event will the Stockholders’ Representative be required to advance its own funds on behalf of the Stockholders or otherwise. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Representative may be entitled apart from the provisions hereof. In the event of any indemnification under this Section 14.2(c), each Stockholder shall promptly deliver to the Stockholders’ Representative full payment of his, her or its ratable share of such indemnification claimRepresentatives.
(d) All of the indemnities, immunities and powers granted to the Stockholders’ Representative under this Agreement shall survive the Closing or any termination of this Agreement and the Escrow Agreement, and the foregoing indemnities and immunities will survive the resignation or removal of the Stockholders’ Representative.
Appears in 1 contract
Samples: Merger Agreement (Wellpoint Inc)
Compensation; Exculpation; Indemnity. (a) Except as set forth in Section 14.1 and any agreement among the Stockholders’ The Representative and the Stockholders, the Stockholders’ Representative shall will not be entitled to any fee, commission or other compensation for the performance of its service hereunder.
(b) In dealing with this Agreement, the Escrow Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative hereunder or thereunder, as between the Representative and Seller Parties, (i) the Stockholders’ Representative shall will not assume any, and shall will incur no, responsibility whatsoever to any Stockholder Seller Parties by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, the Escrow Agreement or any other Transaction DocumentAncillary Agreement, except in unless by the event of liability directly resulting from the Stockholders’ Representative’s Fraud, gross negligence or willful misconduct, and (ii) the Stockholders’ Representative shall will be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Representative pursuant to such advice shall will in no event subject the Stockholders’ Representative to liability to any Stockholder except in Seller Party unless by the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. Except as set forth in the previous sentence, in the absence of Fraud and other than in respect of breach or non-fulfillment of any covenants or agreements hereunder, the Stockholders’ Representative, in its role as Stockholders’ Representative, shall have no liability whatsoever to the Company, the Parent, Merger Sub or any other Person.
(c) Each StockholderSellers shall indemnify the Representative up to, severally (but not jointly)exceeding, shall indemnify, defend and hold harmless an amount equal to the Stockholders’ Representative, which indemnification shall be paid by such Stockholders pro rata in accordance with the aggregate portion of the aggregate cash amounts received by such Person Sellers under Article IV2 of this Agreement, against all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and all expenses of document location, duplication and shipment and the amount of any judgment against it, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”)whatsoever, arising out of or in connection with the execution any claim or in connection with any appeal thereof, relating to the acts or omissions of the Stockholders’ Representative hereunder, under an Ancillary Agreement or under the Escrow Agreementotherwise, in each case as except for such Stockholdersdamages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ Representative Loss is suffered or incurred; provided that Stockholdersand other experts’ Representative Losses shall not include special, indirect, punitive or consequential damages of any kind whatsoever (including but not limited to lost profits of the Stockholders’ Representative), but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders fees and the amount of such indemnified Stockholders’ any judgment against the Representative Loss to that arise from the extent attributable to such Fraud, Representative’s gross negligence or willful misconduct. In no event will , including the Stockholders’ Representative be required to advance its own funds on behalf willful breach of the Stockholders this Agreement or otherwisean Ancillary Agreement. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Representative may be entitled with respect to Sellers apart from the provisions hereof. In the event of any indemnification under this Section 14.2(c10.2(c), each Stockholder Sellers shall promptly deliver to the Stockholders’ Representative full payment of his, her or its ratable share of such indemnification claim.
(d) All of the indemnities, immunities and powers granted to the Stockholders’ Representative under this Agreement shall will survive the Closing or and/or any termination of this Agreement and the Escrow Agreement, and the foregoing indemnities and immunities will survive the resignation or removal of the Stockholders’ Representative.
Appears in 1 contract
Compensation; Exculpation; Indemnity. (a) Except as set forth in Section 14.1 and any agreement among the Stockholders’ Representative and the Stockholders, the Stockholders’ Representative The ZSPN Representatives shall not be entitled to any fee, commission or other compensation for the performance of its service their services hereunder, but shall be entitled to the payment of all of their out-of-pocket expenses incurred as ZSPN Representatives, and in furtherance of the foregoing, may pay or cause to be paid or reimburse themselves for the payment of any and all such expenses.
(b) In dealing with this Agreement, the Escrow Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative ZSPN Representatives hereunder or thereunder, (i) the Stockholders’ Representative ZSPN Representatives shall not assume any, and shall incur no, responsibility whatsoever to any Major Stockholder by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, the Escrow Agreement or any such other Transaction Documentagreement, except in the event of liability directly resulting from the Stockholders’ Representative’s Fraud, gross negligence instrument or willful misconduct, document and (iiiii) the Stockholders’ Representative ZSPN Representatives shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Representative ZSPN Representatives pursuant to such advice shall in no event subject the Stockholders’ Representative ZSPN Representatives to liability to any Stockholder except in the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. Except as set forth in the previous sentence, in the absence of Fraud and other than in respect of breach or non-fulfillment of any covenants or agreements hereunder, the Stockholders’ Representative, in its role as Stockholders’ Representative, shall have no liability whatsoever to the Company, the Parent, Merger Sub or any other PersonMajor Stockholder.
(c) Each Major Stockholder, severally (jointly and severally, shall indemnify the ZSPN Representatives up to, but not jointly)exceeding, shall indemnify, defend and hold harmless the Stockholders’ Representative, which indemnification shall be paid by such Stockholders pro rata in accordance with the portion of an amount equal to the aggregate amounts Share Merger Consideration received by such Person under Article IV, hereunder against any and all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ accountants and other experts’ experts fees and all expenses of document location, duplication and shipment and in the amount of any judgment against itthem, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”)whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with the execution or appeal thereof, relating to the acts or omissions of the Stockholders’ Representative ZSPN Representatives hereunder, or under the Escrow Agreement, in each case as such Stockholders’ Representative Loss is suffered or incurred; provided that Stockholders’ Representative Losses shall not include special, indirect, punitive or consequential damages of any kind whatsoever (including but not limited to lost profits of the Stockholders’ Representative), but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders the amount of such indemnified Stockholders’ Representative Loss to the extent attributable to such Fraud, gross negligence or willful misconduct. In no event will the Stockholders’ Representative be required to advance its own funds on behalf of the Stockholders or otherwise. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Representative may be entitled apart from the provisions hereof. In the event of any indemnification under this Section 14.2(c), each Stockholder shall promptly deliver to the Stockholders’ Representative full payment of his, her or its ratable share of such indemnification claim.
(d) All of the exculpations, indemnities, immunities and powers granted to the Stockholders’ Representative ZSPN Representatives under this Agreement shall survive the Closing or and/or any termination of this Agreement Agreement.
(d) Entravision and the Escrow AgreementSurviving Corporation shall have the right to rely upon all actions taken or omitted to be taken by the ZSPN Representatives pursuant to this Agreement or any applicable ancillary document, and notwithstanding anything herein to the foregoing indemnities and immunities will survive contrary, neither Entravision, Acquisition Co., ZSPN nor the resignation Surviving Corporation shall have any responsibility or removal obligation whatsoever to any Major Stockholder or to any other party with respect to or arising out of any actions taken or any inaction by the Stockholders’ RepresentativeZSPN Representatives.
Appears in 1 contract
Samples: Acquisition Agreement (Entravision Communications Corp)
Compensation; Exculpation; Indemnity. (a) Except as set forth in Section 14.1 and any agreement among the The Stockholders’ Representative and the Stockholders, the Stockholders’ Representative Agent shall not be entitled to any fee, commission or other compensation for the performance of its his service hereunder.
(b) In dealing with this Agreement, the Escrow Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative Agent hereunder or thereunder, (i) the Stockholders’ Representative Agent shall not assume any, and shall incur no, responsibility whatsoever to any Merger Stockholder by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, the Escrow Agreement or any other Transaction Documentinstruments, except in the event of liability directly resulting from agreements or documents relating thereto, unless by the Stockholders’ RepresentativeAgent’s Fraud, gross negligence or willful misconduct, and (ii) the Stockholders’ Representative Agent shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Representative Agent pursuant to such advice shall in no event subject the Stockholders’ Representative Agent to liability to any Stockholder except in Merger Stockholder, the event of liability directly resulting from Company, Parent, Merger Sub, the Surviving Corporation or any other Person, unless by the Stockholders’ RepresentativeAgent’s gross negligence or willful misconduct. Except as set forth in the previous sentence, in the absence of Fraud and other than in respect of breach or non-fulfillment of any covenants or agreements hereunder, the Stockholders’ Representative, in its role as Stockholders’ Representative, shall have no liability whatsoever to the Company, the Parent, Merger Sub or any other Person.
(c) Each Merger Stockholder, severally (but not jointly)severally, shall indemnify, defend and hold harmless indemnify the Stockholders’ RepresentativeAgent up to, but not exceeding, an amount equal to the applicable portion of the Merger Consideration received by such Merger Stockholder under Article II of this Agreement, which indemnification shall be paid by such Stockholders pro rata in accordance with the portion Merger Stockholder based upon such Merger Stockholder’s Pro Rata Share of the aggregate amounts received by such Person under Article IVamount, against all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and all expenses of document location, duplication and shipment and the amount of any judgment against ithim, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”)whatsoever, arising out of or in connection with the execution any claim or in connection with any appeal thereof, relating to the acts or omissions of the Stockholders’ Representative Agent hereunder, or under the Escrow AgreementAgreement or otherwise, in each case as except for such Stockholdersdamages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ Representative Loss is suffered or incurred; provided that Stockholdersand other experts’ Representative Losses shall not include special, indirect, punitive or consequential damages fees and the amount of any kind whatsoever (including but not limited to lost profits of judgment against the Stockholders’ Representative), but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event Agent that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraud, gross negligence or willful misconduct of arise from the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders the amount of such indemnified Stockholders’ Representative Loss to the extent attributable to such Fraud, Agent’s gross negligence or willful misconduct. In no event will , including the Stockholders’ Representative be required to advance its own funds on behalf willful breach of this Agreement or the Stockholders or otherwiseEscrow Agreement. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Representative Agent may be entitled apart from the provisions hereof. In the event of any indemnification under this Section 14.2(c12.2(c), each Merger Stockholder shall promptly deliver to the Stockholders’ Representative Agent full payment of his, her or its ratable share of such indemnification claim.
(d) All of the indemnities, immunities and powers granted to the Stockholders’ Representative Agent under this Agreement shall survive the Closing or and/or any termination of this Agreement and the Escrow Agreement, and the foregoing indemnities and immunities will survive the resignation or removal of the Stockholders’ Representative.. [Signature Page Follows]
Appears in 1 contract
Compensation; Exculpation; Indemnity. (a) Except as set forth in Section 14.1 and any agreement among the Stockholders’ The Representative and the Stockholders, the Stockholders’ Representative shall will not be entitled to any fee, commission or other compensation for the performance of its service hereunder.
(b) In dealing with this Agreement, the Escrow Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative hereunder or thereunder, (i) the Stockholders’ Representative shall will not assume any, and shall will incur no, responsibility whatsoever to any Stockholder Indemnifying Parties by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, the Escrow Agreement or any other Transaction Document, except in unless by the event of liability directly resulting from the Stockholders’ Representative’s Fraudgross negligence, gross negligence willful misconduct, fraud or willful misconductbreach of fiduciary duty, and (ii) the Stockholders’ Representative shall will be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Representative pursuant to such advice shall will in no event subject the Stockholders’ Representative to liability to any Stockholder except in Indemnifying Party unless by the event of liability directly resulting from the Stockholders’ Representative’s gross negligence negligence, willful misconduct, fraud or willful misconduct. Except as set forth in the previous sentence, in the absence breach of Fraud and other than in respect of breach or non-fulfillment of any covenants or agreements hereunder, the Stockholders’ Representative, in its role as Stockholders’ Representative, shall have no liability whatsoever to the Company, the Parent, Merger Sub or any other Personfiduciary duty.
(c) Each StockholderIndemnifying Party, severally (severally, shall indemnify the Representative up to, but not jointlyexceeding, an amount equal to the aggregate portion of the amounts received by such Person under ARTICLE II and ARTICLE XIII of this Agreement (including amounts received upon disbursement, if any, from the Escrow Account), shall indemnify, defend and hold harmless the Stockholders’ Representative, which indemnification shall be paid by such Stockholders Indemnifying Parties pro rata in accordance with the portion of the aggregate amounts received by such Person under Article IVARTICLE II and ARTICLE XIII of this Agreement (including amounts received upon disbursement, if any, from the Escrow Account), against all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and all expenses of document location, duplication and shipment and the amount of any judgment against it, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”)whatsoever, arising out of or in connection with the execution any claim or in connection with any appeal thereof, relating to the acts or omissions of the Stockholders’ Representative hereunder, under a Transaction Document or under the Escrow Agreementotherwise, in each case as except for such Stockholdersdamages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ Representative Loss is suffered or incurred; provided that Stockholdersand other experts’ Representative Losses shall not include special, indirect, punitive or consequential damages of any kind whatsoever (including but not limited to lost profits of the Stockholders’ Representative), but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders fees and the amount of such indemnified Stockholders’ any judgment against the Representative Loss to that arise from the extent attributable to such Fraud, Representative’s gross negligence or willful misconduct. In no event will , including the Stockholders’ Representative be required to advance its own funds on behalf willful breach of the Stockholders this Agreement or otherwisea Transaction Document. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Representative may be entitled apart from the provisions hereof. In the event of any indemnification under this Section 14.2(c), each Stockholder Indemnifying Party shall promptly deliver to the Stockholders’ Representative full payment of his, her or its ratable share of such indemnification claim. The Representative shall have the right to offset any amounts due and payable to it under this Section 14.2 against any portion of any disbursement, if any, the Representative is otherwise obligated to make to the Indemnifying Parties from the Escrow Account.
(d) All of the indemnities, immunities and powers granted to the Stockholders’ Representative under this Agreement shall will survive the Closing or and/or any termination of this Agreement and the Escrow Agreement, and the foregoing indemnities and immunities will survive the resignation or removal of the Stockholders’ Representative.
Appears in 1 contract
Samples: Merger Agreement (SolarWinds, Inc.)
Compensation; Exculpation; Indemnity. (a) Except as set forth in Section 14.1 and any agreement among the Stockholders’ Representative and the Stockholders, the Stockholders’ The Representative shall not be entitled to any fee, commission or other compensation for the performance of its service hereunder, but shall be entitled to the payment of all of its out-of-pocket expenses incurred as Representative, and in furtherance of the foregoing, may pay or cause to be paid or reimburse itself for the payment of any and all such expenses.
(b) In dealing with this Agreement, the Indemnification Escrow Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative hereunder or thereunder, (i) the Stockholders’ Representative shall not assume any, and shall incur no, responsibility whatsoever to any Stockholder Securityholder Party by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, the Indemnification Escrow Agreement or any other Transaction Document, except in the event of liability directly resulting from the Stockholders’ Representative’s Fraud, gross negligence or willful misconduct, Document and (ii) the Stockholders’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Representative pursuant to such advice shall in no event subject the Stockholders’ Representative to liability to any Stockholder except in the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. Except as set forth in the previous sentenceSecurityholder Party, in the absence of Fraud and other than in respect of breach or non-fulfillment of any covenants or agreements hereunder, the Stockholders’ Representative, in its role as Stockholders’ Representative, shall have no liability whatsoever to the Company, the Parent, Merger Sub Sub, the Surviving Corporation or any other Personperson.
(c) Each StockholderSecurityholder Party, severally (severally, shall indemnify the Representative up to, but not jointly)exceeding, shall indemnify, defend and hold harmless an amount equal to the Stockholders’ Representativeaggregate portion of the Merger Consideration received by such Person hereunder, which indemnification shall be paid by such Stockholders Securityholder Party pro rata in accordance with the portion of the aggregate amounts Merger Consideration received by such Person under Article IVperson hereunder, against all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and all expenses of document location, duplication and shipment and the amount of any judgment against it, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”)whatsoever, arising out of or in connection with the execution any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Stockholders’ Representative hereunder, or under the Indemnification Escrow AgreementAgreement or otherwise, in each case as except for such Stockholdersdamages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ Representative Loss is suffered or incurred; provided that Stockholdersand other experts’ Representative Losses shall not include special, indirect, punitive or consequential damages of any kind whatsoever (including but not limited to lost profits of the Stockholders’ Representative), but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders fees and the amount of such indemnified Stockholders’ any judgment against the Representative Loss to that arise from the extent attributable to such Fraud, Representative’s gross negligence or willful misconduct. In no event will , including the Stockholders’ Representative be required to advance its own funds on behalf willful breach of this Agreement or the Stockholders or otherwiseIndemnification Escrow Agreement. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Representative may be entitled apart from the provisions hereof. In the event of any indemnification under this Section 14.2(c12.5(c), the Representative shall first proceed against any distributions to the Representative on behalf of the Securityholder Parties. Thereafter, upon written notice from the Representative to the Securityholder Parties as to the existence of a deficiency toward the payment of any such indemnification amount, each Stockholder Securityholder Party shall promptly deliver to the Stockholders’ Representative full payment of his, her or its ratable share of such indemnification claimdeficiency.
(d) All of the indemnities, immunities and powers granted to the Stockholders’ Representative under this Agreement shall survive the Closing or and/or any termination of this Agreement and the Indemnification Escrow Agreement, and the foregoing indemnities and immunities will survive the resignation or removal of the Stockholders’ Representative.
Appears in 1 contract
Compensation; Exculpation; Indemnity. (a) Except as set forth in Section 14.1 and any agreement among the Stockholders’ Representative and the Stockholders, the Stockholders’ The Representative shall not be entitled to any fee, commission or other compensation for the performance of its service hereunder, but shall be entitled to the payment of all of its out-of-pocket expenses incurred as Representative, and in furtherance of the foregoing, may pay or cause to be paid or reimburse itself for the payment of any and all such expenses.
(b) In dealing with this Agreement, the Indemnification Escrow Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative hereunder or thereunder, (i) the Stockholders’ Representative shall not assume any, and shall incur no, responsibility whatsoever to any Stockholder Securityholder by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, the Indemnification Escrow Agreement or any other Transaction Document, except in the event of liability directly resulting from the Stockholders’ Representative’s Fraud, gross negligence or willful misconduct, Document and (ii) the Stockholders’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Representative pursuant to such advice shall in no event subject the Stockholders’ Representative to liability to any Stockholder except in the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. Except as set forth in the previous sentenceSecurityholder, in the absence of Fraud and other than in respect of breach or non-fulfillment of any covenants or agreements hereunder, the Stockholders’ Representative, in its role as Stockholders’ Representative, shall have no liability whatsoever to the Company, the Parent, Merger Sub Sub, the Surviving Corporation or any other Personperson.
(c) Each StockholderSecurityholder, severally (severally, shall indemnify the Representative up to, but not jointly)exceeding, shall indemnify, defend and hold harmless an amount equal to the Stockholders’ Representativeaggregate portion of the Merger Consideration received by such Person hereunder, which indemnification shall be paid by such Stockholders Securityholder pro rata in accordance with the portion of the aggregate amounts Merger Consideration received by such Person under Article IVperson hereunder, against all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’', accountants’ ' and other experts’ ' fees and all expenses of document location, duplication and shipment and the amount of any judgment against it, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”)whatsoever, arising out of or in connection with the execution any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Stockholders’ Representative hereunder, or under the Indemnification Escrow AgreementAgreement or otherwise, in each case as except for such Stockholders’ Representative Loss is suffered or incurred; provided that Stockholders’ Representative Losses shall not include specialdamages, indirectliabilities, punitive or consequential damages of any kind whatsoever (claims, obligations, costs and expenses, including but not limited to lost profits of the Stockholders’ Representative)reasonable attorneys', but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders accountants' and other experts' fees and the amount of such indemnified Stockholders’ any judgment against the Representative Loss to that arise from the extent attributable to such Fraud, Representative's gross negligence or willful misconduct. In no event will , including the Stockholders’ Representative be required to advance its own funds on behalf willful breach of this Agreement or the Stockholders or otherwiseIndemnification Escrow Agreement. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Representative may be entitled apart from the provisions hereof. In the event of any indemnification under this Section 14.2(c12.5(c), the Representative shall first proceed against any distributions to the Representative on behalf of the Securityholders. Thereafter, upon written notice from the Representative to the Securityholders as to the existence of a deficiency toward the payment of any such indemnification amount, each Stockholder Securityholder shall promptly deliver to the Stockholders’ Representative full payment of his, her or its ratable share of such indemnification claimdeficiency.
(d) All of the indemnities, immunities and powers granted to the Stockholders’ Representative under this Agreement shall survive the Closing or and/or any termination of this Agreement and the Indemnification Escrow Agreement, and the foregoing indemnities and immunities will survive the resignation or removal of the Stockholders’ Representative.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Atrium Companies Inc)
Compensation; Exculpation; Indemnity. (a) Except as set forth in Section 14.1 and any agreement among the Stockholders’ Representative and the Stockholders, the Stockholders’ The Representative shall not be entitled to any fee, commission or other compensation for the performance of its service hereunder.
(b) In dealing with this Agreement, the Escrow Agreement and any instruments, agreements or documents relating related thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative hereunder or thereunder, (i) the Stockholders’ Representative shall not assume any, and shall incur no, responsibility whatsoever to any Stockholder Securityholder by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, the Escrow Agreement or any other Transaction Document, except in unless by the event of liability directly resulting from the Stockholders’ Representative’s Fraud, 's gross negligence or willful misconduct, and (ii) the Stockholders’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Representative pursuant to such advice shall in no event subject the Stockholders’ Representative to liability to any Stockholder except in Securityholder unless by the event of liability directly resulting from the Stockholders’ Representative’s 's gross negligence or willful misconduct. Except as set forth in the previous sentence, in notwithstanding anything to the absence of Fraud and other than in respect of breach or non-fulfillment of any covenants or agreements hereundercontrary contained herein, the Stockholders’ Representative, in its role as Stockholders’ Representative, shall have no liability whatsoever to the Company, the ParentPrincipals, Securityholders, Parent or Merger Sub or any other Person.
(c) Each StockholderSecurityholder, severally (severally, shall indemnify the Representative up to, but not jointly)exceeding, shall indemnify, defend and hold harmless an amount equal to the Stockholders’ Representativeaggregate portion of the amounts received by such Person under ARTICLE II of this Agreement, which indemnification shall be paid by such Stockholders Securityholders pro rata in accordance with the portion of the aggregate amounts received by such Person under Article IVARTICLE II of this Agreement, against all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’', accountants’ ' and other experts’ ' fees and all expenses of document location, duplication and shipment and the amount of any judgment against it, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”)whatsoever, arising out of or in connection with the execution any claim or in connection with any appeal thereof, relating to the acts or omissions of the Stockholders’ Representative hereunder, or under the Escrow AgreementAgreement or otherwise, in each case as except for such Stockholders’ Representative Loss is suffered or incurred; provided that Stockholders’ Representative Losses shall not include specialdamages, indirectliabilities, punitive or consequential damages of any kind whatsoever (claims, obligations, costs and expenses, including but not limited to lost profits of the Stockholders’ Representative)reasonable attorneys', but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders accountants' and other experts' fees and the amount of such indemnified Stockholders’ any judgment against the Representative Loss to that arise from the extent attributable to such Fraud, Representative's gross negligence or willful misconduct. In no event will , including the Stockholders’ Representative be required to advance its own funds on behalf willful breach of this Agreement or the Stockholders or otherwiseEscrow Agreement. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Representative may be entitled apart from the provisions hereof. In the event of any indemnification under this Section 14.2(c7.02(c), each Stockholder Securityholder shall promptly deliver to the Stockholders’ Representative full payment of his, her or its ratable share of such indemnification claim.
(d) All of the indemnities, immunities and powers granted to the Stockholders’ Representative under this Agreement shall survive the Closing or and/or any termination of this Agreement and the Escrow Agreement, and the foregoing indemnities and immunities will survive the resignation or removal of the Stockholders’ Representative.
Appears in 1 contract
Samples: Merger Agreement (Perficient Inc)
Compensation; Exculpation; Indemnity. (a) Except The Representative will hold the Expense Fund Amount separate from its corporate funds and will not voluntarily make it available to its creditors in the event of bankruptcy. The Equityholders acknowledge that the Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Expense Fund Amount other than as set forth a result of its gross negligence or willful breach. The Representative is not acting as a withholding agent or in Section 14.1 any similar capacity in connection with the Expense Fund Account, and any agreement among the Stockholders’ Representative and the Stockholdershas no tax reporting or income distribution obligations hereunder. Subject to Advisory Group approval, the Stockholders’ Representative may contribute funds to the Expense Fund Amount from any consideration otherwise distributable to the Equityholders. Upon final payment of the expenses incurred by the Representative, the Representative shall not distribute the remaining Expense Fund Amount (if any) to the Paying Agent for further distribution to the Equityholders in proportion to their respective Applicable Holdback Percentages. For Tax purposes, the Expense Fund Amount will be entitled to any fee, commission or other compensation for treated as having been received and voluntarily set aside by the performance Equityholders at the time of its service hereunderClosing.
(b) Certain Equityholders have entered into an engagement agreement (the “Representative Engagement Agreement”) with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Representative Engagement Agreement (such Equityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). In dealing with this Agreement, the Escrow Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative hereunder or thereunder, as between the Representative and the Equityholders, (i) neither the Stockholders’ Representative shall not nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Representative Group”) will assume any, and shall or incur no, any responsibility whatsoever to any Stockholder Equityholders by reason of any error in judgment or other act or omission performed or omitted hereunder hereunder, under the Representative Engagement Agreement or in connection with this Agreement, the Escrow Representative Engagement Agreement or any other Transaction Document, except in unless by the event of liability directly resulting from the Stockholders’ Representative’s Fraud, gross negligence or willful misconductbreach, and (ii) the Stockholders’ Representative shall will be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Representative pursuant to such advice shall will in no event subject the Stockholders’ Representative Group to liability to any Stockholder except in Equityholder unless by the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. Except as set forth in the previous sentence, in the absence of Fraud and other than in respect of breach or non-fulfillment of any covenants or agreements hereunder, the Stockholders’ Representative, in its role as Stockholders’ Representative, shall have no liability whatsoever to the Company, the Parent, Merger Sub or any other Personbreach.
(c) Each StockholderEquityholder, severally (but not jointly)severally, shall indemnify, defend and hold harmless the Stockholders’ RepresentativeRepresentative Group up to, but not exceeding, an amount equal to the aggregate portion of the cash amounts received by such Person under Article II of this Agreement, which indemnification shall be paid by such Stockholders Equityholders pro rata in accordance with the portion of the aggregate amounts received by such Person under Article IVEquityholder’s respective Applicable Holdback Percentage, against all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs costs, losses, fees, fine, judgments, amounts paid in settlement and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and all expenses of document location, duplication and shipment and the amount of any judgment against itit and in connection with seeking recovery from insurers, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”)whatsoever, arising out of or in connection with the execution any claim or in connection with any appeal thereof, relating to the acts or omissions of the Stockholders’ Representative hereunder, under a Transaction Document or under otherwise (collectively, the Escrow Agreement, in each case as such Stockholders’ “Representative Loss is suffered or incurred; provided that Stockholders’ Representative Losses shall not include special, indirect, punitive or consequential damages of any kind whatsoever (including but not limited to lost profits of the Stockholders’ RepresentativeExpenses”), but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in except for such Representative Expenses that arise from the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders the amount of such indemnified Stockholders’ Representative Loss to the extent attributable to such Fraud, ’s gross negligence or willful misconduct. In no event will , including the Stockholders’ Representative be required to advance its own funds on behalf willful breach of the Stockholders this Agreement or otherwisea Transaction Document. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Representative may be entitled with respect to an Equityholder apart from the provisions hereof. In the event of any indemnification under this Section 14.2(c)11.2(c) and/or any Representative Expenses, each Stockholder Equityholder shall promptly deliver to the Stockholders’ Representative full payment of his, her or its ratable share of such indemnification claimclaim or Representative Expenses if not first recovered from the Expense Fund Amount or from any distribution of the Holdback Cash Consideration otherwise distributable to the Equityholders at the time of distribution. The Equityholders acknowledge that the Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Representative Engagement Agreement or the transactions contemplated hereby or thereby. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions.
(d) All of the indemnities, immunities and powers granted to the Stockholders’ Representative under this Agreement shall survive the Closing or any termination of this Agreement and the Escrow Agreement, and the foregoing indemnities and immunities will survive the resignation or removal of the Stockholders’ RepresentativeRepresentative and the Closing and/or any termination of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Realpage Inc)
Compensation; Exculpation; Indemnity. (a) Except as set forth in Section 14.1 and any agreement among the Stockholders’ Representative and the StockholdersSecurityholders, the Stockholders’ Representative shall not be entitled to any fee, commission or other compensation for the performance of its service hereunder.
(b) In dealing with this Agreement, the Escrow Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative hereunder or thereunder, (i) the Stockholders’ Representative shall not assume any, and shall incur no, responsibility whatsoever to any Stockholder Securityholder by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, the Escrow Agreement or any other Transaction Document, except in the event of liability directly resulting from the Stockholders’ Representative’s Fraudfraud, gross negligence or willful misconduct, and (ii) the Stockholders’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Representative pursuant to such advice shall in no event subject the Stockholders’ Representative to liability to any Stockholder Securityholder except in the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. Except as set forth in the previous sentence, in the absence of Fraud fraud and other than in respect of a breach or non-fulfillment of any covenants or agreements hereunder, the Stockholders’ Representative, in its role as Stockholders’ Representative, shall have no liability whatsoever to the Company, Parent or the Parent, Merger Sub Company or any other Person. Confidential Portions of this Exhibit marked as [***] have been omitted pursuant to a request for confidential treatment and have been filed separately with the Securities and Exchange Commission.
(c) Each StockholderSecurityholder, severally (but not jointly), shall indemnify, defend and hold harmless the Stockholders’ Representative, which indemnification shall be paid by such Stockholders pro rata in accordance with the portion of the aggregate amounts received by such Person under Article IVSecurityholders based on their respective Pro Rata Share, against all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and all expenses of document location, duplication and shipment and the amount of any judgment against it, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”), arising out of or in connection with the execution or the acts or omissions of the Stockholders’ Representative hereunder, or under the Escrow Agreement, in each case as such Stockholders’ Representative Loss is suffered or incurred; provided that Stockholders’ Representative Losses shall not include special, indirect, punitive or consequential damages of any kind whatsoever (including but not limited to lost profits of the Stockholders’ Representative), but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraudfraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders Securityholders the amount of such indemnified Stockholders’ Representative Loss to the extent attributable to such Fraudfraud, gross negligence or willful misconduct. If not paid directly to the Representative by the Securityholders, any such Representative Losses may be recovered by the Representative from (i) the funds in the Representative Holdback and (ii) subject to any Parent Indemnification Claims which shall be satisfied prior to any recovery by the Representative, the Escrow Amount at such time immediately prior to the time that any remaining amounts would otherwise be distributable to the Securityholders; provided, that while this Section 10.2 allows the Representative to be paid from the Representative Holdback and the Escrow Amount, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholders’ Representative be required to advance its own funds on behalf of the Stockholders Securityholders or otherwise. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Representative may be entitled apart from the provisions hereof. In the event of any indemnification under this Section 14.2(c10.2(c), each Stockholder Securityholder shall promptly deliver to the Stockholders’ Representative full payment of his, her or its ratable share of such indemnification claimIndemnification Claim.
(d) All of the indemnities, immunities and powers granted to the Stockholders’ Representative under this Agreement shall survive the Closing or any termination of this Agreement and the Escrow Agreement, and the foregoing indemnities and immunities will survive the resignation or removal of the Stockholders’ Representative. Confidential Portions of this Exhibit marked as [***] have been omitted pursuant to a request for confidential treatment and have been filed separately with the Securities and Exchange Commission.
(e) The Representative Holdback will be used for the purposes of paying directly, or reimbursing the Representative for, any third party expenses pursuant to this Agreement and the Escrow Agreement. The Securityholders will not receive any interest or earnings on the Representative Holdback and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Holdback other than as a result of its gross negligence or willful misconduct. Contemporaneous with or as soon as practicable following the release in full of the Escrow Amount and the termination or expiration of the obligations of the Representative, the Representative shall disburse the balance of the Representative Holdback to the Securityholders, except in the case of payments to employees or, to the extent practical, former employees of the Company for which employment tax withholding is required, which such amounts shall be delivered to Parent or the Surviving Corporation and paid through Parent’s or Surviving Corporation’s payroll processing service or system. For tax purposes, the Representative Holdback shall be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing. The parties agree that the Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Holdback. If any tax reporting is required with respect to the ultimate distribution of any balance of the Representative Holdback, then the Representative will provide to Parent or its designated agent, upon request, information regarding the amounts distributed to each Securityholder, to be used by Parent or its agent in completing any required tax reporting. Any portion of the Representative Holdback that remains undeliverable or unclaimed after 12 months of the initial delivery attempt shall promptly be paid to Parent and handled in the same manner as other unclaimed funds as provided in this Agreement.
Appears in 1 contract
Compensation; Exculpation; Indemnity. .
(a) Except as set forth in Section 14.1 and any agreement among the Stockholders’ Representative and the Stockholders, the Stockholders’ The Representative shall not be entitled to any fee, commission or other compensation for the performance of its his service hereunder. Notwithstanding the foregoing, at the Closing, the Buyer Parties will wire to the Representative an amount of $100,000 (the “Expense Fund”), which will be used for the purposes of paying directly, or reimbursing Representative for, any third party expenses pursuant to this Agreement and the Transaction Documents ancillary hereto. The Shareholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Expense Fund other than as a result of his gross negligence or willful misconduct. The Representative will hold these funds separate from his funds, will not use these funds for his operating expenses or any other corporate purposes and will not voluntarily make these funds available to his creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative shall disburse any remaining balance of the Expense Fund to the Shareholders, based on such Shareholders’ respective Shareholder Percentage; and none of the Buyer Parties, the Company nor any of their post-Closing Affiliates shall be liable for any losses to any Person, including any Seller for any inaccuracy, error or omission in such disbursement. For tax purposes, the Expense Fund shall be treated as having been received and voluntarily set aside by the Shareholders at the time of Closing. The Representative is not acting as a withholding agent or in any similar capacity in connection with the distribution of the Expense Fund and is not responsible for any tax reporting or withholding with respect thereto.
(b) In dealing with this Agreement, the Escrow Agreement and any instruments, agreements or documents relating related thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative hereunder or thereunder, (i) the Stockholders’ Representative shall not assume any, and shall incur no, responsibility whatsoever to any Stockholder Shareholder by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, the Escrow Agreement or any other Transaction Document, except in unless by the event of liability directly resulting from the Stockholders’ Representative’s Fraud, gross negligence or willful misconduct, and (ii) the Stockholders’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Representative pursuant to such advice shall in no event subject the Stockholders’ Representative to liability to any Stockholder except in Shareholder unless by the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. Except as set forth in the previous sentence, in notwithstanding anything to the absence of Fraud and other than in respect of breach or non-fulfillment of any covenants or agreements hereundercontrary contained herein, the Stockholders’ Representative, in its his role as Stockholders’ Representative, shall have no liability whatsoever to the CompanySeller Parties, the Parent, Merger Sub Buyer Parties or any other Person.
(c) Each StockholderShareholder, severally (severally, shall indemnify the Representative up to, but not jointly)exceeding, shall indemnify, defend and hold harmless an amount equal to the Stockholders’ Representativeaggregate portion of the amounts received by such Person under Article II of this Agreement, which indemnification shall be paid by such Stockholders Shareholders pro rata in accordance with the portion of the aggregate amounts received by such Person under Article IVII of this Agreement, against all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and all expenses of document location, duplication and shipment and the amount of any judgment against it, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”)whatsoever, arising out of or in connection with the execution any claim or in connection with any appeal thereof, relating to the acts or omissions of the Stockholders’ Representative hereunder, or under the Escrow AgreementAgreement or otherwise, in each case as except for such Stockholdersdamages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ Representative Loss is suffered or incurred; provided that Stockholdersand other experts’ Representative Losses shall not include special, indirect, punitive or consequential damages of any kind whatsoever (including but not limited to lost profits of the Stockholders’ Representative), but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders fees and the amount of such indemnified Stockholders’ any judgment against the Representative Loss to that arise from the extent attributable to such Fraud, Representative’s gross negligence or willful misconduct. In no event will , including the Stockholders’ Representative be required to advance its own funds on behalf willful breach of this Agreement or the Stockholders or otherwiseEscrow Agreement. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Representative may be entitled apart from the provisions hereof. In the event of any indemnification under this Section 14.2(c9.02(c), each Stockholder Shareholder shall promptly deliver to the Stockholders’ Representative full payment of his, her or its ratable share of such indemnification claim, and if not paid directly to the Representative by the Shareholders, any such Representative losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) from any other amounts of cash or shares that may become payable to the Shareholders in connection with this Agreement at such time as any such amounts would otherwise be distributable to the Shareholders; provided, that while this Section 9.02(c) allows the Representative to be paid from the aforementioned sources, this does not relieve the Shareholders from their obligation to promptly pay such Representative losses as they are suffered or incurred, nor does it prevent the Representative from seeking any remedies available to it at law or otherwise. In no event will the Representative be required to advance his own funds on behalf of the Shareholders or otherwise.
(d) All of the indemnities, immunities and powers granted to the Stockholders’ Representative under this Agreement shall survive the Closing or and/or any termination of this Agreement and the Escrow Agreement, and the foregoing indemnities and immunities will survive the resignation or removal of the Stockholders’ Representative.
Appears in 1 contract
Compensation; Exculpation; Indemnity. (a) Except as set forth in Section 14.1 and any agreement among the Stockholders’ Representative and the Stockholders, the Stockholders’ The Representative shall not be entitled to any fee, commission or other compensation for the performance of its his service hereunder.
(b) In dealing with this Agreement, the Escrow Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative hereunder or thereunder, (i) the Stockholders’ Representative shall not assume any, and shall incur no, responsibility whatsoever to any Stockholder Securityholder by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, the Escrow Agreement or any other Transaction Documenttransaction document, except in unless by the event of liability directly resulting from the Stockholders’ Representative’s Fraud, gross negligence or willful misconduct, and (ii) the Stockholders’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Representative pursuant to such advice shall in no event subject the Stockholders’ Representative to liability to any Stockholder except in Securityholder unless by the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. Except as set forth in the previous sentence, in notwithstanding anything to the absence of Fraud and other than in respect of breach or non-fulfillment of any covenants or agreements hereundercontrary contained herein, the Stockholders’ Representative, in its his role as Stockholders’ Representative, shall have no liability whatsoever to Xxxxxx, Parent or the Company, the Parent, Merger Sub Surviving Corporation or any other Person.
(c) Each StockholderSecurityholder, severally (severally, shall indemnify the Representative up to, but not jointly)exceeding, shall indemnify, defend and hold harmless an amount equal to the Stockholders’ Representativeaggregate portion of the amounts received by such Person under Article 2 of this Agreement, which indemnification shall be paid by such Stockholders Securityholder pro rata in accordance with the portion of the aggregate amounts received by such Person under Article IV2 of this Agreement, against all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and all expenses of document location, duplication and shipment and the amount of any judgment against itthe Representative, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”)whatsoever, arising out of or in connection with the execution any claim or in connection with any appeal thereof, relating to the acts or omissions of the StockholdersRepresentative hereunder or otherwise, except for such damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ Representative hereunder, or under the Escrow Agreement, in each case as such Stockholdersand other experts’ Representative Loss is suffered or incurred; provided that Stockholders’ Representative Losses shall not include special, indirect, punitive or consequential damages of any kind whatsoever (including but not limited to lost profits of the Stockholders’ Representative), but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders fees and the amount of such indemnified Stockholders’ any judgment against the Representative Loss to that arise from the extent attributable to such Fraud, Representative’s gross negligence or willful misconduct. In no event will , including the Stockholders’ Representative be required to advance its own funds on behalf willful breach of the Stockholders or otherwisethis Agreement. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Representative may be entitled apart from the provisions hereofhereof and is intended to provide the Representative indemnity for his own negligence. In the event of any indemnification under this Section 14.2(c9.2(c), Representative may recover the indemnification claim (i) by written demand to the Securityholders, in which event, each Stockholder such Securityholder shall promptly deliver to the Stockholders’ Representative full payment of his, her or its ratable share Proportionate Share of such indemnification claim, and/or (ii) by offset against any Future Payment otherwise payable to the Securityholders, which offset and payment the Parent and Surviving Corporation are hereby authorized to make upon receipt of written instruction therefor by Representative.
(d) All of the indemnities, immunities and powers granted to the Stockholders’ Representative under this Agreement shall survive the Closing or and/or any termination of this Agreement.
(e) The approval of this Agreement by the requisite vote or written consent of Stockholders and the Escrow Agreementexecution of this Agreement by the Stockholders shall also be deemed to constitute approval of all arrangements relating to the transactions contemplated hereby and to the provisions hereof binding upon the Securityholders, and the foregoing indemnities and immunities will survive the resignation or removal of the Stockholders’ Representativeincluding, without limitation, Section 9.2.
Appears in 1 contract
Samples: Merger Agreement (Jl Halsey Corp)
Compensation; Exculpation; Indemnity. (a) Except as set forth in Section 14.1 and any agreement among the Stockholders’ Representative and the Stockholders, the Stockholders’ The Representative shall not be entitled to any fee, commission or other compensation for the performance of its service hereunder.
(b) In dealing with this Agreement, the Escrow Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative hereunder or thereunder, (i) the Stockholders’ Representative shall not assume any, and shall incur no, responsibility whatsoever to any Stockholder Securityholder by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, the Escrow Agreement or any other Transaction Document, except in unless by the event of liability directly resulting from the Stockholders’ Representative’s Fraud, gross negligence or willful misconduct, and (ii) the Stockholders’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Representative pursuant to such advice shall in no event subject the Stockholders’ Representative to liability to any Stockholder except in Securityholder unless by the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. Except as set forth in the previous sentence, in notwithstanding anything to the absence of Fraud and other than in respect of breach or non-fulfillment of any covenants or agreements hereundercontrary contained herein, the Stockholders’ Representative, in its role as Stockholders’ Representative, shall have no liability whatsoever to the Company, the Parent, Merger Sub Parent or any of its Subsidiaries or any other Person.
(c) Each StockholderSecurityholder, severally (severally, shall indemnify the Representative up to, but not jointly)exceeding, shall indemnify, defend and hold harmless an amount equal to the Stockholders’ Representativeaggregate portion of the amounts received by such Person under Article II of this Agreement, which indemnification shall be paid by such Stockholders Securityholder pro rata in accordance with the portion of the aggregate amounts received by such Person under Article IVII of this Agreement, against all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and all expenses of document location, duplication and shipment and the amount of any judgment against it, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”)whatsoever, arising out of or in connection with the execution any claim or in connection with any appeal thereof, relating to the acts or omissions of the Stockholders’ Representative hereunder, or under the Escrow Agreementother Transaction Documents or otherwise, in each case as except for such Stockholdersdamages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ Representative Loss is suffered or incurred; provided that Stockholdersand other experts’ Representative Losses shall not include special, indirect, punitive or consequential damages of any kind whatsoever (including but not limited to lost profits of the Stockholders’ Representative), but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders fees and the amount of such indemnified Stockholders’ any judgment against or settlement by the Representative Loss due solely to the extent attributable to such Fraud, Representative’s gross negligence or willful misconduct. In no event will , including the Stockholders’ Representative be required to advance its own funds on behalf willful breach of the Stockholders or otherwisethis Agreement. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Representative may be entitled apart from the provisions hereof. In the event of any indemnification under this Section 14.2(c11.2(c), each Stockholder Securityholder shall promptly deliver to the Stockholders’ Representative full payment of his, her or its ratable share of such indemnification claim.
(d) All of the indemnities, immunities and powers granted to the Stockholders’ Representative under this Agreement shall survive the Closing or and/or any termination of this Agreement and Agreement.
(e) Each Securityholder, severally, shall reimburse the Escrow Agreement, and the foregoing indemnities and immunities will survive the resignation or removal Representative for all of the Stockholders’ Representative’s reasonable out-of-pocket fees and expenses, which reimbursement shall be paid by such Securityholder pro rata in accordance with the portion of the aggregate amounts received by such Person under Article II of this Agreement. Notwithstanding anything in this Agreement to the contrary, under no circumstances shall a Securityholder’s indemnification and reimbursement obligations pursuant to Sections 11.2(c) and 11.2(e) exceed the aggregate amount received by such Person under Article II of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Medassets Inc)
Compensation; Exculpation; Indemnity. (a) Except as set forth in Section 14.1 and any agreement among the Stockholders’ Representative and the Stockholders, the Stockholders’ The Representative shall not be entitled to any fee, commission or other compensation for the performance of its service hereunder.
(b) In dealing with this Agreement, the Escrow Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative hereunder or thereunder, (i) the Stockholders’ Representative shall not assume any, and shall incur no, responsibility whatsoever to any Stockholder Securityholder by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, the Escrow Agreement or any other Transaction Document, except in unless by the event of liability directly resulting from the Stockholders’ Representative’s Fraud, gross negligence or willful misconduct, and (ii) the Stockholders’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Representative pursuant to such advice shall in no event subject the Stockholders’ Representative to liability to any Stockholder except in Securityholder unless by the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. Except as set forth in the previous sentence, in notwithstanding anything to the absence of Fraud and other than in respect of breach or non-fulfillment of any covenants or agreements hereundercontrary contained herein, the Stockholders’ Representative, in its role as Stockholders’ Representative, shall have no liability whatsoever to the Colorado Company, Delaware Company, Parent or the Parent, Merger Sub or any other Person.
(c) Each StockholderSecurityholder, severally (severally, shall indemnify the Representative up to, but not jointly)exceeding, shall indemnify, defend and hold harmless an amount equal to the Stockholders’ Representativeaggregate portion of the amounts received by such Person under ARTICLE II of this Agreement, which indemnification shall be paid by such Stockholders Securityholders pro rata in accordance with the portion of the aggregate amounts received by such Person under Article IVARTICLE II of this Agreement, against all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and all expenses of document location, duplication and shipment and the amount of any judgment against it, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”)whatsoever, arising out of or in connection with the execution any claim or in connection with any appeal thereof, relating to the acts or omissions of the Stockholders’ Representative hereunder, or under the Escrow AgreementAgreement or otherwise, in each case as except for such Stockholdersdamages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ Representative Loss is suffered or incurred; provided that Stockholdersand other experts’ Representative Losses shall not include special, indirect, punitive or consequential damages of any kind whatsoever (including but not limited to lost profits of the Stockholders’ Representative), but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders fees and the amount of such indemnified Stockholders’ any judgment against the Representative Loss to that arise from the extent attributable to such Fraud, Representative’s gross negligence or willful misconduct. In no event will , including the Stockholders’ Representative be required to advance its own funds on behalf willful breach of this Agreement or the Stockholders or otherwiseEscrow Agreement. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Representative may be entitled apart from the provisions hereof. In the event of any indemnification under this Section 14.2(c10.02(c), each Stockholder Securityholder shall promptly deliver to the Stockholders’ Representative full payment of his, her or its ratable share of such indemnification claim.
(d) All of the indemnities, immunities and powers granted to the Stockholders’ Representative under this Agreement shall survive the Closing or and/or any termination of this Agreement and the Escrow Agreement, and the foregoing indemnities and immunities will survive the resignation or removal of the Stockholders’ Representative.
Appears in 1 contract
Samples: Merger Agreement (Perficient Inc)
Compensation; Exculpation; Indemnity. (a) Except as set forth in Section 14.1 and any agreement among the Stockholders’ Representative and the Stockholders, the Stockholders’ The Representative shall not be entitled to any fee, commission or other compensation for the performance of its his service hereunder. Notwithstanding the foregoing, the Representative is not required to use his own funds in connection with the performance of his obligations, and the Representative shall not be required to expend funds or to engage counsel, public accountants or other advisors unless the Securityholders have made adequate provision for the out of pocket cost thereof. Without limiting the generality of the foregoing, the Securityholders agree that the Representative may use the proceeds otherwise payable to them from the Escrow Account to pay third party costs and expenses incurred by the Representative in furtherance of fulfilling the Representative's obligations under this Agreement; provided that the Representative shall from time to time provide a reasonable accounting of such costs and expenses to the Securityholders.
(b) In dealing with this Agreement, the Escrow Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative hereunder or thereunder, (i) the Stockholders’ Representative shall not assume any, and shall incur no, responsibility whatsoever to any Stockholder Securityholder by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, the Escrow Agreement or any other Transaction Document, except in unless by the event of liability directly resulting from the Stockholders’ Representative’s Fraud, 's gross negligence or willful misconduct, and (ii) the Stockholders’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Representative pursuant to such advice shall in no event subject the Stockholders’ Representative to liability to any Stockholder except in Securityholder unless by the event of liability directly resulting from the Stockholders’ Representative’s 's gross negligence or willful misconduct. Except as set forth in the previous sentence, in notwithstanding anything to the absence of Fraud and other than in respect of breach or non-fulfillment of any covenants or agreements hereundercontrary contained herein, the Stockholders’ Representative, in its his role as Stockholders’ Representative, shall have no liability whatsoever to the Company, the ParentBuyer, Merger Sub or the Surviving Company or any other Person.
(c) Each StockholderSecurityholder, severally (severally, shall indemnify the Representative up to, but not jointly)exceeding, shall indemnify, defend and hold harmless an amount equal to the Stockholders’ Representativeaggregate portion of the amounts received by such Person under Article One, which indemnification shall be paid by such Stockholders Securityholder pro rata in accordance with the portion of the aggregate amounts received by such Person under Article IV, One against all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’', accountants’ ' and other experts’ ' fees and all expenses of document location, duplication and shipment and the amount of any judgment against it, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”)whatsoever, arising out of or in connection with the execution any claim or in connection with any appeal thereof, relating to the acts or omissions of the Stockholders’ Representative hereunder, or under the Escrow AgreementAgreement or otherwise, in each case as except for such Stockholders’ Representative Loss is suffered or incurred; provided that Stockholders’ Representative Losses shall not include specialdamages, indirectliabilities, punitive or consequential damages of any kind whatsoever (claims, obligations, costs and expenses, including but not limited to lost profits of the Stockholders’ Representative)reasonable attorneys', but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders accountants' and other experts' fees and the amount of such indemnified Stockholders’ any judgment against the Representative Loss to that arise from the extent attributable to such Fraud, Representative's gross negligence or willful misconduct. In no event will , including the Stockholders’ Representative be required to advance its own funds on behalf willful breach of this Agreement or the Stockholders or otherwiseEscrow Agreement. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Representative may be entitled apart from the provisions hereof. In the event of any indemnification under this Section 14.2(c9.01(c), each Stockholder Securityholder shall promptly as soon as reasonably practicable deliver to the Stockholders’ Representative full payment of his, her or its ratable share of such indemnification claimBuyer Indemnification Claim.
(d) All of the indemnities, immunities and powers granted to the Stockholders’ Representative under this Agreement shall survive the Closing or and/or any termination of this Agreement and the Escrow Agreement, and the foregoing indemnities and immunities will survive the resignation or removal . Executed as of the Stockholders’ Representativedate first written above. BUYER: CIRRUS LOGIC, INC. By: ____________________________________________ Name: ____________________________________________ Title: ____________________________________________ MERGER SUB: APEX ACQUISITION COMPANY By: ____________________________________________ Name: ____________________________________________ Title: ____________________________________________ COMPANY: APEX MICROTECHNOLOGY CORPORATION By: ____________________________________________ Name: ____________________________________________ Title: ____________________________________________ REPRESENTATIVE: _____________________________________________________ James A. Unruh, solely in his capacity as the Xxxxxxxxxxxxxe Signature Page for Agreement and Plan of Merger SELLERS: AMI GROUP, LLC By: ALERCAP, LLC, its Manager By:__________________________________________ Name:________________________________________ Title:_______________________________________ By:__________________________________________ Name:________________________________________ Title:_______________________________________ MIDWEST-APEX, LLC By: ABN AMRO MEZZANINE MANAGEMENT II, INC., its Manager By:__________________________________________ Name:________________________________________ Title:_______________________________________ _____________________________________________________ GREGORY L. BRENNAN _____________________________________________________ DAVID COX _____________________________________________________ DEBBIE DRYSDALE _____________________________________________________ DANIEL REID _____________________________________________________ JAMES THOMPSON Signature Page for Agreement and Plan of Merger EXHIBIT A DEFINITIONS
(a) The following terms will have the following meanings in this Agreement:
Appears in 1 contract
Samples: Merger Agreement (Cirrus Logic Inc)
Compensation; Exculpation; Indemnity. (a) Except as set forth in Section 14.1 and any agreement among the Stockholders’ The Stockholder Representative and the Stockholders, the Stockholders’ Representative shall will not be entitled to any fee, commission or other compensation for the performance of its service hereunder.
(b) In dealing with this Agreement, the Escrow Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Stockholder Representative hereunder or thereunder, (i) the Stockholders’ Stockholder Representative shall will not assume any, and shall will incur no, responsibility Liability whatsoever to any Stockholder by reason Security Holder because of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, Agreement or the Escrow Agreement or any other Transaction Document, except in the event of liability directly resulting from the Stockholders’ Representative’s Fraud, gross negligence or willful misconduct, Agreement; and (ii) the Stockholders’ Stockholder Representative shall will be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Stockholder Representative pursuant to such advice shall in no event will not subject the Stockholders’ Stockholder Representative to liability to any Stockholder except in the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. Except as set forth in the previous sentence, in the absence of Fraud and other than in respect of breach or non-fulfillment of any covenants or agreements hereunder, the Stockholders’ Representative, in its role as Stockholders’ Representative, shall have no liability whatsoever Liability to the Company, the Parent, Merger Sub or any other Person. No Security Holder will have any cause of action against the Stockholder Representative, the Company or any Parent Party for any action taken, decision made or instruction given by the Stockholder Representative under this Agreement or the Escrow Agreement, except for causes of action against the Stockholder Representative for fraud or willful Breach of this Agreement on the part of the Stockholder Representative.
(c) Each StockholderThe Stockholder Representative will be entitled to be indemnified and held harmless by the Security Holders against any loss, severally (but not jointly), shall indemnify, defend and hold harmless Liability or expense incurred without bad faith on the Stockholders’ Representative, which indemnification shall be paid by such Stockholders pro rata in accordance with the portion part of the aggregate amounts received by such Person under Article IV, against all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs Stockholder Representative and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and all expenses of document location, duplication and shipment and the amount of any judgment against it, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”), arising out of or in connection with the execution acceptance or the acts administration of his, her or omissions of the Stockholders’ Representative hereunder, its duties under this Agreement or under the Escrow Agreement, in each case as such Stockholders’ Representative Loss is suffered or incurred; provided that Stockholders’ Representative Losses shall not include special, indirect, punitive or consequential damages of any kind whatsoever (including but not limited to lost profits of the Stockholders’ Representative), but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders the amount of such indemnified Stockholders’ Representative Loss to the extent attributable to such Fraud, gross negligence or willful misconduct. In no event will the Stockholders’ Representative be required to advance its own funds on behalf of the Stockholders or otherwise. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Representative may be entitled apart from the provisions hereof. In the event of any indemnification under this Section 14.2(c), each Stockholder shall promptly deliver to the Stockholders’ Representative full payment of his, her or its ratable share of such indemnification claimapplicable.
(d) All of the indemnities, immunities and powers granted to the Stockholders’ Representative under this Agreement shall survive the Closing or any termination of this Agreement and the Escrow Agreement, and the foregoing indemnities and immunities will survive the resignation or removal of the Stockholders’ Representative.
Appears in 1 contract
Compensation; Exculpation; Indemnity. (a) Except as set forth in Section 14.1 and any agreement among the StockholdersThe Sellers’ Representative and the Stockholders, the Stockholders’ Representative shall will not be entitled to any fee, commission or other compensation for the performance of its service hereunderhereunder but will be entitled to reimbursement for any of its out-of-pocket expenses incurred as Sellers’ Representative pursuant to the undertaking provided by each Seller in Section 11.2(c).
(b) In dealing with this Agreement, the Escrow Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the StockholdersSellers’ Representative hereunder or thereunder, (i) the StockholdersSellers’ Representative shall will not assume any, and shall will incur no, responsibility Liability whatsoever to any Stockholder by reason Seller because of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, the Escrow Agreement or any other Transaction Document, except in the event of liability directly resulting from the Stockholders’ Representative’s Fraud, gross negligence or willful misconduct, and (ii) the StockholdersSellers’ Representative shall will be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the StockholdersSellers’ Representative pursuant to such advice shall in no event will not subject the StockholdersSellers’ Representative to liability Liability to any Stockholder except in the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. Except as set forth in the previous sentenceSeller, in the absence of Fraud and other than in respect of breach or non-fulfillment of any covenants or agreements hereunder, the Stockholders’ Representative, in its role as Stockholders’ Representative, shall have no liability whatsoever to the Company, the Parent, Merger Sub or any other Person.
(c) Each StockholderThe Sellers’ Representative will be indemnified by the Sellers, severally jointly and severally, from and against any and all claims, demands, liabilities, costs and expenses (but not jointlyincluding, without limitation, reasonable attorneys’ fees), shall indemnify, defend arising from or related to any acts undertaken (and hold harmless any omissions to act) in his capacity as the StockholdersSellers’ Representative, which indemnification shall be paid by such Stockholders pro rata in accordance with the portion of the aggregate amounts received by such Person under Article IV, against all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and all expenses of document location, duplication and shipment and the amount of any judgment against it, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”), arising out of or in connection with the execution or the acts or omissions of the Stockholders’ Representative hereunder, or under the Escrow Agreement, in each case as such Stockholders’ Representative Loss is suffered or incurred; provided that Stockholders’ Representative Losses shall not include special, indirect, punitive or consequential damages of any kind whatsoever (including but not limited to lost profits of the Stockholders’ Representative), but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders the amount of such indemnified Stockholders’ Representative Loss except to the extent attributable to such Fraud, gross negligence or the Sellers’ Representative’s willful misconduct. In no event will Each Seller, by the Stockholdersexecution and delivery of this Agreement, agrees (i) to reimburse the Sellers’ Representative be required for any and all fees, costs and expenses incurred by the Sellers’ Representative promptly following submission by the Sellers’ Representative of appropriate documentation substantiating the amount thereof and (ii) as among themselves, to advance its own funds on behalf bear their pro rata share of any such fees, costs and expenses of the Stockholders or otherwise. The foregoing indemnification shall not be deemed exclusive of any other right to which the StockholdersSellers’ Representative based on the number of Seller Shares they held immediately prior to the Equity Closing Date. For the avoidance of doubt, any claims by the Sellers’ Representative for indemnification may be entitled apart from asserted by the provisions hereof. In the event of Sellers’ Representative against any indemnification under individual Seller who shall then seek reimbursement for all other Sellers as contemplated in this Section 14.2(c), each Stockholder shall promptly deliver to the Stockholders’ Representative full payment of his, her or its ratable share of such indemnification claim11.2.
(d) All of the indemnities, immunities and powers granted to the Stockholders’ Representative under this Agreement shall survive the Closing or any termination of this Agreement and the Escrow Agreement, and the foregoing indemnities and immunities will survive the resignation or removal of the Stockholders’ Representative.
Appears in 1 contract
Compensation; Exculpation; Indemnity. (a) Except as set forth in Section 14.1 and any agreement among the The Stockholders’ Representative and the Stockholders, the Stockholders’ Representative ' Agent shall not be entitled to any fee, commission or other compensation for the performance of its his service hereunder.
(b) In dealing with this Agreement, the Escrow Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative ' Agent hereunder or thereunder, (i) the Stockholders’ Representative ' Agent shall not assume any, and shall incur no, responsibility whatsoever to any Merger Stockholder by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, the Escrow Agreement or any other Transaction Documentinstruments, except in the event of liability directly resulting from agreements or documents relating thereto, unless by the Stockholders’ Representative’s Fraud, ' Agent's gross negligence or willful misconduct, and (ii) the Stockholders’ Representative ' Agent shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Representative ' Agent pursuant to such advice shall in no event subject the Stockholders’ Representative ' Agent to liability to any Stockholder except in Merger Stockholder, the event of liability directly resulting from Company, Parent, Merger Sub, the Surviving Corporation or any other Person, unless by the Stockholders’ Representative’s ' Agent's gross negligence or willful misconduct. Except as set forth in the previous sentence, in the absence of Fraud and other than in respect of breach or non-fulfillment of any covenants or agreements hereunder, the Stockholders’ Representative, in its role as Stockholders’ Representative, shall have no liability whatsoever to the Company, the Parent, Merger Sub or any other Person.
(c) Each Merger Stockholder, severally (severally, shall indemnify the Stockholders' Agent up to, but not jointly)exceeding, shall indemnify, defend and hold harmless an amount equal to the Stockholders’ Representativeaggregate Per Share Merger Consideration received by such Merger Stockholder under Article II of this Agreement, which indemnification shall be paid by such Stockholders Merger Stockholder pro rata in accordance with the portion of the aggregate amounts Per Share Merger Consideration received by such Person Merger Stockholder under Article IVII of this Agreement, against all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’', accountants’ ' and other experts’ ' fees and all expenses of document location, duplication and shipment and the amount of any judgment against ithim, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”)whatsoever, arising out of or in connection with the execution any claim or in connection with any appeal thereof, relating to the acts or omissions of the Stockholders’ Representative ' Agent hereunder, or under the Escrow AgreementAgreement or otherwise, in each case as except for such Stockholders’ Representative Loss is suffered or incurred; provided that Stockholders’ Representative Losses shall not include specialdamages, indirectliabilities, punitive or consequential damages of any kind whatsoever (claims, obligations, costs and expenses, including but not limited to lost profits of the Stockholders’ Representative)reasonable attorneys', but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders accountants' and other experts' fees and the amount of such indemnified any judgment against the Stockholders’ Representative Loss to ' Agent that arise from the extent attributable to such Fraud, Stockholders' Agent's gross negligence or willful misconduct. In no event will , including the Stockholders’ Representative be required to advance its own funds on behalf willful breach of this Agreement or the Stockholders or otherwiseEscrow Agreement. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Representative ' Agent may be entitled apart from the provisions hereof. In the event of any indemnification under this Section 14.2(c12.2(c), each Merger Stockholder shall promptly deliver to the Stockholders’ Representative ' Agent full payment of his, her or its ratable share of such indemnification claim.
(d) All of the indemnities, immunities and powers granted to the Stockholders’ Representative ' Agent under this Agreement shall survive the Closing or and/or any termination of this Agreement and the Escrow Agreement, and the foregoing indemnities and immunities will survive the resignation or removal of the Stockholders’ Representative.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Select Medical Corp)
Compensation; Exculpation; Indemnity. (a) Except as set forth in Section 14.1 and any agreement among the Stockholders’ Representative and the Stockholders, the Stockholders’ The Representative shall not be entitled to any fee, commission or other compensation for the performance of its his service hereunder.
(b) In dealing with this Agreement, the Escrow Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative hereunder or thereunder, (i) the Stockholders’ Representative shall not assume any, and shall incur no, responsibility whatsoever to any Stockholder Securityholder by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, the Escrow Agreement or any other Transaction Documenttransaction document, except in unless by the event of liability directly resulting from the Stockholders’ Representative’s Fraud, gross negligence or willful misconduct, and (ii) the Stockholders’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Representative pursuant to such advice shall in no event subject the Stockholders’ Representative to liability to any Stockholder except in Securityholder unless by the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. Except as set forth in the previous sentence, in notwithstanding anything to the absence of Fraud and other than in respect of breach or non-fulfillment of any covenants or agreements hereundercontrary contained herein, the Stockholders’ Representative, in its his role as Stockholders’ Representative, shall have no liability whatsoever to Xxxxxx, Parent or the Company, the Parent, Merger Sub Surviving Corporation or any other Person.
(c) Each StockholderSecurityholder, severally (severally, shall indemnify the Representative up to, but not jointly)exceeding, shall indemnify, defend and hold harmless an amount equal to the Stockholders’ Representativeaggregate portion of the amounts received by such Person under Article 2 of this Agreement, which indemnification shall be paid by such Stockholders Securityholder pro rata in accordance with the portion of the aggregate amounts received by such Person under Article IV2 of this Agreement, against all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and all expenses of document location, duplication and shipment and the amount of any judgment against itthe Representative, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”)whatsoever, arising out of or in connection with the execution any claim or in connection with any appeal thereof, relating to the acts or omissions of the StockholdersRepresentative hereunder or otherwise, except for such damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ Representative hereunder, or under the Escrow Agreement, in each case as such Stockholdersand other experts’ Representative Loss is suffered or incurred; provided that Stockholders’ Representative Losses shall not include special, indirect, punitive or consequential damages of any kind whatsoever (including but not limited to lost profits of the Stockholders’ Representative), but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders fees and the amount of such indemnified Stockholders’ any judgment against the Representative Loss to that arise from the extent attributable to such Fraud, Representative’s gross negligence or willful misconduct. In no event will , including the Stockholders’ Representative be required to advance its own funds on behalf willful breach of the Stockholders or otherwisethis Agreement. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Representative may be entitled apart from the provisions hereofhereof and is intended to provide the Representative indemnity for his own negligence. In the event of any indemnification under this Section 14.2(c8.2(c), Representative may recover the indemnification claim (i) by written demand to the Securityholders, in which event, each Stockholder such Securityholder shall promptly deliver to the Stockholders’ Representative full payment of his, her or its ratable share Proportionate Share of such indemnification claim, and/or (ii) by offset against any Future Payment otherwise payable to the Securityholders, which offset and payment the Parent and Surviving Corporation are hereby authorized to make upon receipt of written instruction therefor by Representative.
(d) All of the indemnities, immunities and powers granted to the Stockholders’ Representative under this Agreement shall survive the Closing or and/or any termination of this Agreement.
(e) The approval of this Agreement by the requisite vote or written consent of Securityholders shall also be deemed to constitute approval of all arrangements relating to the transactions contemplated hereby and to the Escrow Agreementprovisions hereof binding upon the Securityholders, and the foregoing indemnities and immunities will survive the resignation or removal of the Stockholders’ Representativeincluding, without limitation, Section 8.2.
Appears in 1 contract
Samples: Merger Agreement (Jl Halsey Corp)
Compensation; Exculpation; Indemnity. (a) Except as set forth in Section 14.1 and any agreement among the Stockholders’ Representative and the Stockholders, the Stockholders’ The Seller Representative shall not be entitled to any fee, commission or other compensation for the performance of its service hereunder, but shall be entitled to the payment of all of its out-of-pocket expenses incurred as Seller Representative, and in furtherance of the foregoing, may pay or cause to be paid or reimburse itself for the payment of any and all such expenses out of any amounts to be released from the Escrow Account for the benefit of the Holders.
(b) In dealing with this Agreement, the Escrow Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Seller Representative hereunder or thereunder, (i) the Stockholders’ Seller Representative shall not assume any, and shall incur no, responsibility whatsoever to any Stockholder by reason Holder because of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, the Escrow Agreement or any other Transaction Document, except in the event of liability directly resulting from the Stockholders’ Representative’s Fraud, gross negligence or willful misconduct, Escrow Agreement; and (ii) the Stockholders’ Seller Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Seller Representative pursuant to such advice shall in no event subject the Stockholders’ Seller Representative to liability to any Stockholder except in the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. Except as set forth in the previous sentence, in the absence of Fraud and other than in respect of breach or non-fulfillment of any covenants or agreements hereunder, the Stockholders’ Representative, in its role as Stockholders’ Representative, shall have no liability whatsoever to the Company, any of the Holders, Parent, Merger Sub Sub, the Surviving Corporation or any other Person.
(c) Each Stockholder, The stockholders of the Company on whose behalf shares of Parent Common Stock will be contributed to the Escrow Fund shall jointly and severally (but not jointly), shall indemnify, defend indemnify the Seller Representative and hold the Seller Representative harmless against any loss, liability or expense incurred on the Stockholders’ Representative, which indemnification shall be paid by such Stockholders pro rata in accordance with the portion part of the aggregate amounts received by such Person under Article IV, against all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs Seller Representative and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and all expenses of document location, duplication and shipment and the amount of any judgment against it, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”), arising out of or in connection with the execution acceptance or the acts or omissions administration of the Stockholders’ Representative hereunder, or Seller Representative's duties hereunder and under the Escrow Agreement, in each case as such Stockholders’ Representative Loss is suffered or incurred; provided that Stockholders’ Representative Losses shall not include special, indirect, punitive or consequential damages including the reasonable fees and expenses of any kind whatsoever (including but not limited to lost profits of the Stockholders’ Representative), but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused legal counsel retained by the Fraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders the amount of such indemnified Stockholders’ Representative Loss to the extent attributable to such Fraud, gross negligence or willful misconduct. In no event will the Stockholders’ Representative be required to advance its own funds on behalf of the Stockholders or otherwise. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Representative may be entitled apart from the provisions hereof. In the event of any indemnification under this Section 14.2(c), each Stockholder shall promptly deliver to the Stockholders’ Representative full payment of his, her or its ratable share of such indemnification claim.
(d) All of the indemnities, immunities and powers granted to the Stockholders’ Representative under this Agreement shall survive the Closing or any termination of this Agreement and the Escrow Agreement, and the foregoing indemnities and immunities will survive the resignation or removal of the Stockholders’ Seller Representative.
Appears in 1 contract
Samples: Merger Agreement (Software Com Inc)
Compensation; Exculpation; Indemnity. (a) Except as set forth in Section 14.1 and any agreement among the Stockholders’ Representative and the Stockholders, the Stockholders’ Representative The LCG Representatives shall not be entitled to any fee, commission or other compensation for the performance of its service their services hereunder, but shall be entitled to the payment out of the Custodial Accounts of all of their out-of-pocket expenses incurred as LCG Representatives, and in furtherance of the foregoing, may pay or cause to be paid or reimburse themselves for the payment of any and all such expenses.
(b) In dealing with this Agreement, the Escrow Agreement Agreements and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative LCG Representatives hereunder or thereunder, (i) the Stockholders’ Representative LCG Representatives shall not assume any, and shall incur no, responsibility whatsoever to any Stockholder or Option Holder by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, the Escrow Agreement Agreements or any such other Transaction Documentagreement, except in the event of liability directly resulting from the Stockholders’ Representative’s Fraud, gross negligence instrument or willful misconduct, document and (ii) the Stockholders’ Representative LCG Representatives shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Representative LCG Representatives pursuant to such advice shall in no event subject the Stockholders’ Representative LCG Representatives to liability to any Stockholder except in the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. Except as set forth in the previous sentenceStockholder, in the absence of Fraud and other than in respect of breach or non-fulfillment of any covenants or agreements hereunderOption Holder, the Stockholders’ Representative, in its role as Stockholders’ Representative, shall have no liability whatsoever to the Company, Entravision, Acquisition Co., the Parent, Merger Sub Surviving Corporation or any other Person.
(c) Each StockholderStockholder and each Option Holder, severally (severally, shall indemnify the LCG Representatives up to, but not jointly)exceeding, shall indemnify, defend and hold harmless the Stockholders’ Representative, which indemnification shall be paid by such Stockholders pro rata in accordance with the portion of an amount equal to the aggregate amounts Per Share Merger Consideration received by such Person under Article IV, hereunder against all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’attorney's, accountants’ ' and other experts’ ' fees and all expenses of document location, duplication and shipment and the amount of any judgment against itthem, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”)whatsoever, arising out of or in connection with the execution any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Stockholders’ Representative LCG Representatives hereunder, or under the Escrow Agreement, in each case as such Stockholders’ Representative Loss is suffered or incurred; provided that Stockholders’ Representative Losses shall not include special, indirect, punitive or consequential damages of any kind whatsoever (including but not limited to lost profits of the Stockholders’ Representative), but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders the amount of such indemnified Stockholders’ Representative Loss to the extent attributable to such Fraud, gross negligence or willful misconduct. In no event will the Stockholders’ Representative be required to advance its own funds on behalf of the Stockholders Agreements or otherwise. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Representative LCG Representatives may be entitled apart from the provisions hereof. In the event of any indemnification under this Section 14.2(c12.5(c), the LCG Representatives shall first proceed against any distributions to the LCG Representatives on behalf of the Stockholders and the Option Holders. Thereafter, upon written notice from the LCG Representatives to the Stockholders and the Option Holders as to the existence of a deficiency toward the payment of any such indemnification amount, each Stockholder and Option Holder shall promptly deliver to the Stockholders’ Representative LCG Representatives full payment of his, her or its ratable share of the amount of such indemnification claimdeficiency, in accordance with such Stockholder's and Option Holder's Pro Forma Outstanding Shares.
(d) All of the indemnities, immunities and powers granted to the Stockholders’ Representative LCG Representatives under this Agreement shall survive the Closing or and/or any termination of this Agreement and the Escrow Agreement, Agreements.
(e) Entravision and the foregoing indemnities Surviving Corporation shall have the right to rely upon all actions taken or omitted to be taken by the LCG Representatives pursuant to this Agreement or any applicable ancillary document; provided, however, that Entravision and immunities will survive the resignation Surviving Corporation shall not have the right to rely upon any such written action taken by the LCG Representatives unless such written action is evidenced by a writing executed by all three LCG Representatives. Notwithstanding anything herein to the contrary, none of Entravision, Acquisition Co., LCG or removal the Surviving Corporation shall have any responsibility or obligation whatsoever to any Stockholder, Option Holder or to any other party with respect to or arising out of any actions taken or any inaction by the Stockholders’ RepresentativeLCG Representatives.
Appears in 1 contract
Compensation; Exculpation; Indemnity. (a) Except as set forth in Section 14.1 and any agreement to be entered into among the Stockholders’ Representative and certain of the StockholdersCompany Members, the Stockholders’ Representative shall not be entitled to any fee, commission or other compensation for the performance of its service hereunderhereunder other than a fee of $1,500.00 per month, which amount shall be paid exclusively from the Aggregate Representative Holdback Amount.
(b) In dealing with this Agreement, the Escrow Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative hereunder or thereunder, (i) the Stockholders’ Representative shall not assume any, and shall incur no, responsibility whatsoever to any Stockholder Company Member or UAR Holder by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, the Escrow Agreement or any other Transaction Document, except in the event of liability directly resulting from the Stockholders’ Representative’s Fraudfraud, gross negligence or willful misconduct, misconduct and (ii) the Stockholders’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Representative pursuant to such advice shall in no event subject the Stockholders’ Representative to liability to any Stockholder Company Member or UAR Holder except in the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. Except as set forth in the previous sentence, in the absence of Fraud and other than in respect of breach fraud, gross negligence or non-fulfillment of any covenants or agreements hereunderwillful misconduct, the Stockholders’ Representative, in its role as Stockholders’ Representative, shall have no liability whatsoever to the Company, the Pioneer Parent, Merger Sub Pioneer Investment or any other Person.
(c) Each StockholderCompany Member and UAR Holder, severally (but not jointly), shall indemnify, defend and hold harmless the Stockholders’ Representative, which indemnification shall be paid by such Stockholders pro rata Company Members and UAR Holders in accordance with the portion of the aggregate amounts received by with, as applicable, such Person under Article IVCompany Member’s or UAR Holder’s Escrow & Holdback Funding Percentage, against all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and all expenses of document location, duplication and shipment and the amount of any judgment against it, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”), arising out of or in connection with the execution or the acts or omissions of the Stockholders’ Representative hereunder, or under the Escrow Agreementother Transaction Documents, in each case as such Stockholders’ Representative Loss is suffered or incurred; provided provided, however, that Stockholders’ Representative Losses shall not include special, indirect, punitive or consequential damages of any kind whatsoever (including but not limited to lost profits of the Stockholders’ Representative), but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraudfraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders Company Members and UAR Holders the amount of such indemnified Stockholders’ Representative Loss to the extent attributable to such Fraudfraud, gross negligence or willful misconduct. If not paid directly to the Representative by the Company Members and UAR Holders, any such Representative Losses may be recovered by the Representative from (i) the funds in the Aggregate Representative Holdback Amount and (ii) the Aggregate Escrow Amount at such time as remaining amounts would otherwise be distributable to the Company Members and UAR Holders; provided, however, that while this Section 13.2(c) allows the Representative to be paid from the Aggregate Representative Holdback Amount and the Aggregate Escrow Amount, this does not relieve the Company Members and UAR Holders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholders’ Representative be required to advance its own funds on behalf of the Stockholders Company Members, UAR Holders or otherwise. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Representative may be entitled apart from the provisions hereof. In the event of any indemnification under this Section 14.2(c13.2(c), each Stockholder Company Member and UAR Holder shall promptly deliver to the Stockholders’ Representative full payment of his, her or its ratable share of such indemnification claim.
(d) All portion of the indemnitiesRepresentative Loss in accordance with his, immunities and powers granted to the Stockholders’ Representative under this Agreement shall survive the Closing her or any termination of this Agreement and the its Escrow Agreement, and the foregoing indemnities and immunities will survive the resignation or removal of the Stockholders’ Representative& Holdback Funding Percentage.
Appears in 1 contract
Compensation; Exculpation; Indemnity. (a) Except as set forth in Section 14.1 and any agreement among the Stockholders’ Representative and the Stockholders, the Stockholders’ The Stockholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its service hereunder.
(b) In dealing with this Agreement, the Escrow Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Stockholder Representative hereunder or thereunder, (i) the Stockholders’ Stockholder Representative shall not assume any, and shall incur no, responsibility whatsoever to any Stockholder Seller by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or the Escrow Agreement, unless by the Escrow Agreement or any other Transaction Document, except in the event of liability directly resulting from the Stockholders’ Stockholder Representative’s Fraud, gross negligence or willful misconduct, and (ii) the Stockholders’ Stockholder Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Stockholder Representative pursuant to such advice shall in no event subject the Stockholders’ Stockholder Representative to liability to any Seller unless by the Stockholder except in the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. Except as set forth in the previous sentence, in the absence of Fraud and other than in respect of breach or non-fulfillment of any covenants or agreements hereunder, the Stockholders’ Representative, in its role as Stockholders’ Representative, shall have no liability whatsoever to the Company, the Parent, Merger Sub or any other Person.
(c) Each StockholderSeller, severally (severally, shall indemnify the Stockholder Representative up to, but not jointly)exceeding, shall indemnify, defend and hold harmless the Stockholders’ Representative, which indemnification shall be paid by an amount equal to such Stockholders Seller’s pro rata portion of the total amount, as determined in accordance with the such Seller’s Percentage Interest and in no event exceeding such Seller’s pro rata portion of the aggregate amounts received by such Person under Article IVPurchase Price, against all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and all expenses of document location, duplication and shipment and the amount of any judgment against it, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”)whatsoever, arising out of or in connection with the execution any claim or in connection with any appeal thereof, relating to the acts or omissions of the Stockholders’ Stockholder Representative hereunder, or under the Escrow Agreementexcept for such damages, in each case as such Stockholdersliabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ Representative Loss is suffered or incurred; provided that Stockholdersand other experts’ Representative Losses shall not include special, indirect, punitive or consequential damages of any kind whatsoever (including but not limited to lost profits of the Stockholders’ Representative), but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders fees and the amount of such indemnified Stockholders’ any judgment against the Stockholder Representative Loss to that arise from the extent attributable to such Fraud, Stockholder Representative’s gross negligence or willful misconduct. In no event will , including the Stockholders’ Representative be required to advance its own funds on behalf willful breach of the Stockholders or otherwisethis Agreement. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Stockholder Representative may be entitled apart from the provisions hereof. In the event of any indemnification under this Section 14.2(c)10.02, each Stockholder Seller shall promptly deliver to the Stockholders’ Stockholder Representative full payment of his, her or its ratable share of such indemnification claim.
(d) All of the indemnities, immunities and powers granted to the Stockholders’ Stockholder Representative under this Agreement shall survive the Closing or and/or any termination of this Agreement and the Escrow Agreement, and the foregoing indemnities and immunities will survive the resignation or removal of the Stockholders’ Representative.
Appears in 1 contract
Compensation; Exculpation; Indemnity. (a) Except as set forth in Section 14.1 and any agreement among the Stockholders’ Representative and the Stockholders, the Stockholders’ The Seller Representative shall not be entitled to any fee, commission or other compensation for the performance of its service hereunder.
(b) In dealing with this Agreement, the Escrow Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Seller Representative hereunder or thereunder, (i) the Stockholders’ Seller Representative shall not assume any, and shall incur no, responsibility whatsoever to any Stockholder Seller by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or the Escrow Agreement, unless by the Escrow Agreement or any other Transaction Document, except in the event of liability directly resulting from the Stockholders’ Seller Representative’s Fraud, gross negligence or willful misconduct, and (ii) the Stockholders’ Seller Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Seller Representative pursuant to such advice shall in no event subject the Stockholders’ Seller Representative to liability to any Stockholder except in Seller unless by the event of liability directly resulting from the Stockholders’ Seller Representative’s gross negligence or willful misconduct. Except as set forth in the previous sentence, in notwithstanding anything to the absence of Fraud and other than in respect of breach or non-fulfillment of any covenants or agreements hereundercontrary contained herein, the Stockholders’ Seller Representative, in its role as Stockholders’ Seller Representative, shall have no liability whatsoever to the CompanyAcquired Companies, the Parent, Merger Sub Buyer or any other Person.
(c) Each StockholderSeller, severally (severally, shall indemnify the Seller Representative up to, but not jointly)exceeding, shall indemnify, defend and hold harmless the Stockholders’ Representative, which indemnification shall be paid by an amount equal to such Stockholders Seller’s pro rata portion of the total amount, as determined in accordance with such Seller’s percentage of the Purchase Price received and in no event exceeding such Seller’s pro rata portion of the aggregate amounts received by such Person under Article IVFinal Purchase Price, against all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and all expenses of document location, duplication and shipment and the amount of any judgment against it, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”)whatsoever, arising out of or in connection with the execution any claim or in connection with any appeal thereof, relating to the acts or omissions of the Stockholders’ Seller Representative hereunder, or under the Escrow Agreementexcept for such damages, in each case as such Stockholdersliabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ Representative Loss is suffered or incurred; provided that Stockholdersand other experts’ Representative Losses shall not include special, indirect, punitive or consequential damages of any kind whatsoever (including but not limited to lost profits of the Stockholders’ Representative), but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders fees and the amount of such indemnified Stockholders’ any judgment against the Seller Representative Loss to that arise from the extent attributable to such Fraud, Seller Representative’s gross negligence or willful misconduct. In no event will , including the Stockholders’ Representative be required to advance its own funds on behalf willful breach of the Stockholders or otherwisethis Agreement. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Seller Representative may be entitled apart from the provisions hereof. In the event of any indemnification under this Section 14.2(c)11.02, each Stockholder Seller shall promptly deliver to the Stockholders’ Seller Representative full payment of his, her or its ratable share of such indemnification claim.
(d) All of the indemnities, immunities and powers granted to the Stockholders’ Seller Representative under this Agreement shall survive the Closing or and/or any termination of this Agreement and the Escrow Agreement, and the foregoing indemnities and immunities will survive the resignation or removal of the Stockholders’ Representative.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (CPG Newco LLC)
Compensation; Exculpation; Indemnity. (a) Except as set forth in Section 14.1 and any agreement among the Stockholders’ Representative and the Stockholders, the Stockholders’ Representative The Joint Representatives shall not be entitled to any fee, commission or other compensation for the performance of its service services hereunder.
(b) In dealing with this Agreement, the Indemnification Escrow Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative Joint Representatives hereunder or thereunder, (i) the Stockholders’ Representative Joint Representatives shall not assume any, and shall incur no, responsibility whatsoever to any Stockholder Securityholder by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, the Indemnification Escrow Agreement or any other Transaction Document, except in unless by the event of liability directly resulting from the StockholdersJoint Representatives’ Representative’s Fraud, gross negligence or willful misconduct, and (ii) the Stockholders’ Representative Joint Representatives shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Representative Joint Representatives pursuant to such advice shall in no event subject the Stockholders’ Representative Joint Representatives to liability to any Stockholder except in Securityholder unless by the event of liability directly resulting from the StockholdersJoint Representatives’ Representative’s gross negligence or willful misconduct. Except as set forth in the previous sentence, in notwithstanding anything to the absence of Fraud and other than in respect of breach or non-fulfillment of any covenants or agreements hereundercontrary contained herein, the Stockholders’ RepresentativeJoint Representatives, in its their role as Stockholders’ RepresentativeJoint Representatives, shall have no liability whatsoever to the Company, the Parent, Merger Sub Subsidiary or the Surviving Corporation or any other Person.
(c) Each StockholderSecurityholder, severally (severally, shall indemnify the Joint Representatives up to, but not jointly)exceeding, shall indemnify, defend and hold harmless an amount equal to the Stockholders’ Representativeaggregate portion of the amounts received by such Person under Article II of this Agreement, which indemnification shall be paid by such Stockholders Securityholder pro rata in accordance with the portion of the aggregate amounts received by such Person under Article IVII of this Agreement, against all actual losses, penalties, fines, forfeitures, actions, fees, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and all expenses of document location, duplication and shipment and the amount of any judgment against iteither of them, of any nature whatsoever (collectively, the “Stockholders’ Representative Losses”)whatsoever, arising out of or in connection with the execution any claim or in connection with any appeal thereof, relating to the acts or omissions of the Stockholders’ Representative Joint Representatives hereunder, or under the Indemnification Escrow AgreementAgreement or otherwise, in each case as except for such Stockholdersdamages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ Representative Loss is suffered or incurred; provided that Stockholdersand other experts’ Representative Losses shall not include special, indirect, punitive or consequential damages of any kind whatsoever (including but not limited to lost profits of the Stockholders’ Representative), but excluding special, indirect, punitive or consequential damages of any kind required to be paid to a third party; provided, further, in the event that any such Stockholders’ Representative Loss is finally adjudicated to have been primarily caused by the Fraud, gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders fees and the amount of such indemnified Stockholdersany judgment against the Joint Representatives that arise from the Joint Representatives’ Representative Loss to the extent attributable to such Fraud, gross negligence or willful misconduct. In no event will , including the Stockholders’ Representative be required to advance its own funds on behalf willful breach of this Agreement or the Stockholders or otherwiseIndemnification Escrow Agreement. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Representative Joint Representatives may be entitled apart from the provisions hereofhereof and is intended to provide the Joint Representatives indemnity for their own negligence. In the event of any indemnification under this Section 14.2(c12.2(c), each Stockholder Securityholder shall promptly deliver to the Stockholders’ Representative Joint Representatives full payment of his, her or its ratable share of such indemnification claimIndemnification Claim.
(d) All of the indemnities, immunities and powers granted to the Stockholders’ Representative Joint Representatives under this Agreement shall survive the Closing or and/or any termination of this Agreement and the Indemnification Escrow Agreement.
(e) The Joint Representatives shall, from time to time, be entitled to request and the foregoing indemnities and immunities will survive the resignation or removal receive out of the Stockholders’ RepresentativeIndemnification Escrow Amount such amounts as may be necessary to reimburse the Joint Representatives for all reasonable out-of-pocket fees and expenses incurred by the Joint Representatives in the exercise of their rights or the performance of their duties hereunder, up to a maximum of $250,000 in the aggregate.
Appears in 1 contract
Samples: Merger Agreement (Zayo Group LLC)
