Resolution of Objections to Claims. (a) If the Stockholders’ Agent does not contest, by written notice to Acquirer, any claim or claims by Acquirer made in any Claim Certificate within 20 Business Days after any such Claim Certificate is received by the Stockholders’ Agent, then the Stockholders’ Agent will be conclusively deemed to have consented, on behalf of all Effective Time Holders, to the recovery by the Indemnified 54- Person of the full amount of Indemnifiable Damages specified in the Claim Certificate, including the forfeiture of such number of Escrow Shares from the Escrow Fund having a value sufficient to satisfy such Indemnifiable Damages and, without further notice, to have stipulated to the entry of a final judgment for Indemnifiable Damages against the Effective Time Holders for such amount in any court having jurisdiction over the matter where venue is proper. (b) If the Stockholders’ Agent objects in writing to any claim or claims by Acquirer made in any Claim Certificate within such 20 Business Day period, Acquirer and the Stockholders’ Agent shall attempt in good faith for 30 Business Days after Acquirer’s receipt of such written objection to resolve such objection. If Acquirer and the Stockholders’ Agent shall so agree, a memorandum setting forth such agreement shall be prepared and signed by both parties. The Escrow Agent shall be entitled to conclusively rely on any such memorandum and the Escrow Agent shall distribute such number of Escrow Shares from the Escrow Fund in accordance with the terms of such memorandum. (c) If no such agreement can be reached during the 30 Business Day period for good faith negotiation, but in any event upon the expiration of such 30 Business Day period, either Acquirer or the Stockholders’ Agent may bring suit in the courts of the State of California and the Federal courts of the United States of America, in each case, located within Santa Xxxxx county in the State of California to resolve the matter. The decision of the trial court as to the validity and amount of any claim in such Claim Certificate shall be nonappealable, binding and conclusive upon the parties to this Agreement. The Escrow Agent shall (i) be entitled to conclusively rely on and act in accordance with such decision and
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Resolution of Objections to Claims. (a) If the Stockholders’ Agent does not contest, by written notice to Acquirer, any claim or claims by Acquirer made in any Claim Certificate within 20 Business Days after any such the 30-day period following receipt of the Claim Certificate is received by the Stockholders’ AgentCertificate, then Acquirer and the Stockholders’ Agent will be conclusively deemed to have consented, on behalf of all Effective Time Holders, shall deliver a Joint Instruction to the recovery by Escrow Agent directing the Indemnified 54- Person of Escrow Agent to distribute to Acquirer to the full amount of any Indemnifiable Damages specified corresponding to such claim or claims as set forth in the such Claim Certificate, including the forfeiture of such number of Escrow Shares from the Escrow Fund having a value sufficient to satisfy such Indemnifiable Damages and, without further notice, to have stipulated to the entry of a final judgment for Indemnifiable Damages against the Effective Time Holders for such amount in any court having jurisdiction over the matter where venue is proper.
(b) If the Stockholders’ Agent objects in writing to any claim or claims by Acquirer made in any Claim Certificate within such 20 Business Day periodthe 30-day period set forth in Section 8.7(a), Acquirer and the Stockholders’ Agent shall attempt in good faith for 30 Business Days 45 days after Acquirer’s receipt of such written objection to resolve such objection. If Acquirer and the Stockholders’ Agent shall so agree, a memorandum Joint Instruction setting forth such agreement shall be prepared prepared. Prior to depletion of the Indemnity Escrow Fund, Acquirer and signed by both parties. The the Stockholders’ Agent shall deliver such Joint Instructions to the Escrow Agent shall be entitled to conclusively rely on any and upon receipt of such memorandum and Joint Instruction, the Escrow Agent shall distribute such number of Escrow Shares to Acquirer an amount in cash from the Indemnity Escrow Fund in accordance with the terms of such memorandumJoint Instruction and Acquirer shall be entitled to conclusively rely on such Joint Instruction and cancel a number of shares of Acquirer Common Stock in accordance with the terms of such Joint Instruction.
(c) If no such agreement can be reached during the 30 Business Day 45-day period for good faith negotiationnegotiation set forth in Section 8.7(a), but in any event upon the expiration of such 30 Business Day 45-day period, either Acquirer or the Stockholders’ Agent may bring suit an action in accordance with the courts terms of the State of California and the Federal courts of the United States of America, in each case, located within Santa Xxxxx county in the State of California Section 9.10 to resolve the matter. The decision of the trial court as to the validity and amount of any claim in such Claim Certificate shall be nonappealablenon-appealable, binding and conclusive upon the parties to this Agreement. The Escrow Agent hereto and the Converting Holders, and Acquirer shall (i) be entitled to conclusively rely on and act instruct the Escrow Agent to distribute to Acquirer an amount in cash from the Indemnity Escrow Fund in accordance with such decision andtherewith.
(d) Judgment upon any award rendered by the trial court may be entered in any court having jurisdiction.
Appears in 1 contract
Samples: Merger Agreement (SentinelOne, Inc.)
Resolution of Objections to Claims. (a) If the Stockholders’ Agent does not contest, by written notice to Acquirer, any claim or claims by Acquirer made in any Claim Certificate within 20 Business Days after any such Claim Certificate is received by the Stockholders’ Agent, then the Stockholders’ Agent will be conclusively deemed to have consented, on behalf 30-day period following receipt of all Effective Time Holders, to the recovery by the Indemnified 54- Person of the full amount of Indemnifiable Damages specified in the Claim Certificate, including the forfeiture of such then Acquirer shall cancel a number of Escrow Shares from shares of Acquirer Common Stock held in the Escrow Holdback Fund having a total value sufficient equal to the amount of any Indemnifiable Damages corresponding to such claim or claims as set forth in such Claim Certificate; provided that the per share value of any shares of Acquirer Common Stock cancelled to satisfy such Indemnifiable Damages and, without further notice, to have stipulated to any claims in a Claim Certificate under this Article V shall be the entry of a final judgment for Indemnifiable Damages against the Effective Time Holders for such amount in any court having jurisdiction over the matter where venue is properAcquirer Stock Price.
(b) If the Stockholders’ Agent objects in writing to any claim or claims by Acquirer made in any Claim Certificate within such 20 Business Day periodthe 30-day period set forth in Section 5.6(a), Acquirer and the Stockholders’ Agent shall attempt in good faith for 30 Business Days 45 days after Acquirer’s receipt of such written objection to resolve such objection. If Acquirer and the Stockholders’ Agent shall so agree, a memorandum setting forth such agreement shall be prepared and signed by both partiesAcquirer and the Stockholders’ Agent. The Escrow Agent Acquirer shall be entitled to conclusively rely on any such memorandum and the Escrow Agent shall distribute such cancel a number of Escrow Shares from shares of Acquirer Common Stock held in the Escrow Holdback Fund in accordance with the terms of such memorandum.
(c) If no such agreement can be reached during the 30 Business Day 45-day period for good faith negotiationnegotiation set forth in Section 5.6(b), but in any event upon the expiration of such 30 Business Day 45-day period, either Acquirer or the Stockholders’ Agent may bring suit an arbitration in accordance with the courts terms of the State of California and the Federal courts of the United States of America, in each case, located within Santa Xxxxx county in the State of California Section 7.11 to resolve the matter. The decision of the trial court arbitrator as to the validity and amount of any claim in such Claim Certificate shall be nonappealablenon-appealable, binding and conclusive upon the parties to this Agreement. The Escrow Agent hereto and the Converting Holders, and Acquirer shall (i) be entitled to conclusively rely on and act in accordance with such decision andand Acquirer shall cancel a number of shares of Acquirer Common Stock held in the Holdback Fund in accordance therewith.
(d) Judgment upon any determination of an arbitrator may be entered in any court having jurisdiction. For purposes of this Section 5.6(a), in any suit hereunder in which any claim or the amount thereof stated in the Claim Certificate is at issue, Acquirer shall be deemed to be the prevailing party unless the arbitrator determines in favor of the Stockholders’ Agent (on behalf of the Converting Holders) with respect to more than one-half of the amount in dispute, in which case the Converting Holders shall be deemed to be the prevailing party. The non-prevailing party to an arbitration shall pay its own fees and expenses and the fees and expenses of the prevailing party, including attorneys’ fees and costs, reasonably incurred in connection with such suit.
(e) Any portion of the Holdback Fund held following the Holdback Release Date with respect to pending but unresolved claims for indemnification that is not awarded to Acquirer upon the resolution of such claims shall be distributed to the Converting Holders within five Business Days following resolution of such claims and in accordance with each such Converting Holder’s Pro Rata Share of such portion of the Holdback Fund.
Appears in 1 contract
Resolution of Objections to Claims. (a) If the Stockholders’ Agent or Acquirer, as applicable, does not contest, by written notice to AcquirerAcquirer or the Stockholders’ Agent, as applicable, any claim or claims by Acquirer or the Stockholders’ Agent, as applicable, made in any Claim Certificate within 20 Business Days after any the 30-day period following receipt of the Claim Certificate, then: (X) in the case of a claim by Acquirer, (i) Acquirer and the Stockholders’ Agent shall, within 10 days following the end of such period, deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to (A) release from the Escrow Fund to Acquirer an amount in cash equal to the Cash Percentage of the Claimed Amount with respect to such Claim Certificate is received Certificate, and (B) deliver to the Transfer Agent for cancellation a number of shares of Parent Common Stock from the Escrow Fund having a total value equal to the Stock Percentage of such Claimed Amount (rounded to the nearest whole share); and (ii) if the cash and shares held in the Escrow Fund are insufficient to cover the full amount of such Indemnifiable Damages, then, subject to the limitations contained in Section 8.3, each Converting Holder shall pay such Converting Holder’s Pro Rata Share of such shortfall to the applicable Indemnified Person; and (Y) in the case of a claim by the Stockholders’ Agent, then Parent or Acquirer shall pay the Stockholders’ Agent will be conclusively deemed to have consented, on behalf of all Effective Time Holders, Claimed Amount to the recovery by the Holder Indemnified 54- Person Persons. The per share value of the full amount any shares of Indemnifiable Damages specified in the Claim Certificate, including the forfeiture of such number of Escrow Shares from the Escrow Fund having a value sufficient Parent Common Stock cancelled to satisfy such Indemnifiable Damages and, without further notice, to have stipulated any claims in a Claim Certificate under this Article 8 shall be equal to the entry of a final judgment for Indemnifiable Damages against the Effective Time Holders for such amount in any court having jurisdiction over the matter where venue is properSpecified Price.
(b) If the Stockholders’ Agent or Acquirer, as applicable, objects in writing to any claim or claims by Acquirer or the Stockholders’ Agent, as applicable, made in any Claim Certificate within such 20 Business Day periodthe 30-day period set forth in Section 8.6(a), Acquirer and the Stockholders’ Agent shall attempt in good faith for 30 Business Days 60 days after Acquirer’s or the Stockholders’ Agents’, as applicable, receipt of such written objection to resolve such objection. If Acquirer and the Stockholders’ Agent shall so agree, a memorandum setting forth such agreement shall be prepared and signed by both parties. The Escrow Acquirer and the Company (the amount determined to be owed to the Indemnified Persons and set forth in such memorandum, the “Stipulated Amount”) and: (X) in the case of a claim by Acquirer, (i) Acquirer and the Stockholders’ Agent shall be entitled deliver joint written instructions to conclusively rely on any such memorandum and the Escrow Agent shall distribute such number of instructing the Escrow Shares Agent to: (A) release from the Escrow Fund to Acquirer an amount in accordance with cash equal to the terms Cash Percentage of the Stipulated Amount, and (B) deliver to the Transfer Agent for cancellation a number of shares of Parent Common Stock from the Escrow Fund having a total value equal to the Stock Percentage of such memorandumStipulated Amount (rounded to the nearest whole share), 66 and (ii) if the cash and shares held in the Escrow Fund are insufficient to cover the full Stipulated Amount, then, subject to the limitations contained in Section 8.3, each Converting Holder shall pay such Converting Holder’s Pro Rata Share of such shortfall to the applicable Indemnified Person; and (Y) in the case of a claim by the Stockholders’ Agent, Parent or Acquirer shall pay the Stipulated Amount to the Holder Indemnified Persons.
(c) If no such agreement can be reached during the 30 Business Day 60-day period for good faith negotiationnegotiation set forth in Section 8.6(a), but in any event upon the expiration of such 30 Business Day 60-day period, either Acquirer or the Stockholders’ Agent may bring suit an arbitration in accordance with the courts terms of the State of California and the Federal courts of the United States of America, in each case, located within Santa Xxxxx county in the State of California Section 9.11 to resolve the matter. The decision of the trial court arbitrator as to the validity and amount of any claim in such Claim Certificate shall be nonappealablenon-appealable, binding and conclusive upon the parties hereto and the Converting Holders (the amount determined by the arbitrator to this Agreement. The Escrow Agent shall be owed to the Indemnified Persons, the “Award Amount”), and: (X) in the case of a claim by Acquirer, (i) Acquirer and the Stockholders’ Agent shall, within three Business Days following the date of such decision, deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to: (A) release from the Escrow Fund to Acquirer an amount in cash equal to the Cash Percentage of the Award Amount, and (B) deliver to the Transfer Agent for cancellation a number of shares of Parent Common Stock from the Escrow Fund having a total value equal to the Stock Percentage of such Award Amount (rounded to the nearest whole share), and (ii) if the cash and shares held in the Escrow Fund are insufficient to cover the full Award Amount, then, subject to the limitations contained in Section 8.3, each Converting Holder shall pay such Converting Holder’s Pro Rata Share of such shortfall to the applicable Indemnified Person; and (Y) in the case of a claim by the Stockholders’ Agent, Parent or Acquirer shall pay the Award Amount to the Holder Indemnified Persons.
(d) Judgment upon any determination of an arbitrator may be entitled entered in any court having jurisdiction. For purposes of this Section 8.6(d), in any suit hereunder in which any claim or the amount thereof stated in the Claim Certificate is at issue, Acquirer shall be deemed to conclusively rely be the prevailing party unless the arbitrator determines in favor of the Stockholders’ Agent (on behalf of the Converting Holders) with respect to more than one-half of the amount in dispute, in which case the Converting Holders shall be deemed to be the prevailing party. The non-prevailing party (with respect to the Stockholders’ Agent, the Stockholders’ Agent on behalf of the Converting Holders) to an arbitration shall pay its own expenses and act the expenses and the fees and expenses of the prevailing party, including attorneys’ fees and costs, reasonably incurred in accordance connection with such decision andsuit.
Appears in 1 contract
Samples: Merger Agreement (Facebook Inc)
Resolution of Objections to Claims. (a) If the Stockholders’ Securityholder Agent does not contest, by written notice to AcquirerParent, any claim or claims by Acquirer Parent made in any Claim Certificate within 20 Business Days after any such Claim Certificate is received by the Stockholders’ Agent, then the Stockholders’ Agent will be conclusively deemed to have consented, on behalf 60-day period following receipt of all Effective Time Holders, to the recovery by the Indemnified 54- Person of the full amount of Indemnifiable Damages specified in the Claim Certificate, including then Parent and the forfeiture of such Securityholder Agent shall Release from Indemnity to Parent a number of Escrow Shares shares (rounded down to the nearest whole share) of Parent Capital Stock from the Escrow Indemnity Fund having a value sufficient to satisfy such Indemnifiable Damages andtotal value, without further notice, to have stipulated based on the greater of the Parent Share Price and the VWAP of a share of Parent Common Stock on the Nasdaq Global Market in the thirty (30) trading days prior to the entry last day of a final judgment for Indemnifiable such 30-day period (assuming that the value of each share of Parent Preferred Stock is equal to the value of each share of Parent Common Stock), equal to the amount of any Damages against the Effective Time Holders for corresponding to such amount claim or claims as set forth in any court having jurisdiction over the matter where venue is propersuch Claim Certificate.
(b) If the Stockholders’ Securityholder Agent objects in writing to any claim or claims by Acquirer Xxxxxx made in any Claim Certificate within such 20 Business Day periodthe 60-day period set forth in Section 9.7(a), Acquirer Parent and the Stockholders’ Securityholder Agent shall attempt in good faith for 30 Business Days 45 days after AcquirerParent’s receipt of such written objection to resolve such objectionobjection and the amount of Damages that are indemnifiable by the Company Indemnitors pursuant to this Section 9 in connection with the claim or claims made by Parent in such Claim Certificate. If Acquirer Parent and the Stockholders’ Securityholder Agent shall so agree, a memorandum setting forth such agreement shall be prepared in writing, Parent and signed by both parties. The Escrow the Securityholder Agent shall be entitled Release from Indemnity to conclusively rely Parent from the Indemnity Fund a number of shares (rounded down to the nearest whole share) of Parent Capital Stock having a total value, based on any such memorandum the greater of the Parent Share Price and the Escrow VWAP of a share of Parent Common Stock on the Nasdaq Global Market in the 30 trading days prior to the resolution by the Parent and the Securityholder Agent shall distribute of such number objection (assuming that the value of Escrow Shares from each share of Parent Preferred Stock is equal to the Escrow Fund value of each share of Parent Common Stock), equal to the amount of Damages, if any, so agreed by Parent and the Securityholder Agent in writing to be indemnifiable by the Company Indemnitors pursuant to this Section 9 in accordance with the terms of such memorandumjoint written instruction.
(c) If no such agreement can be is reached during the 30 Business Day 45-day period for good faith negotiationnegotiation set forth in Section 9.7(b), but in any event upon the expiration of such 30 Business Day 45-day period, either Acquirer Parent or the Stockholders’ Securityholder Agent may bring suit an action in the courts of the State of California and the Federal courts of the United States of America, in each case, located within Santa Xxxxx county in the State of California applicable jurisdiction pursuant to Section 10.5 to resolve the matter. The Any final, non-appealable decision of the trial court a Governmental Authority as to the validity and amount of any claim in such Claim Certificate shall be nonappealable, conclusive and binding and conclusive upon the parties hereto and the Company Indemnitors, and following such decision the Securityholder Agent and Parent shall Release from Indemnity to Parent from the Indemnity Fund a number of shares (rounded down to the nearest whole share) of Parent Capital Stock having a total value, based on the greater of the Parent Share Price and the VWAP of a share of Parent Common Stock on the Nasdaq Global Market in the 30 trading days prior to the decision regarding such matter by the Governmental Authority (assuming that the value of each share of Parent Preferred Stock is equal to the value of each share of Parent Common Stock), equal to the amount of Damages, if any, so decided by the Governmental Authority to be indemnifiable by the Company Indemnitors pursuant to this Agreement. The Escrow Agent shall (i) be entitled to conclusively rely on and act in accordance with such decision andSection 9.
Appears in 1 contract
Resolution of Objections to Claims. (a) If the Stockholders’ Securityholder Agent does not contest, by written notice to Acquirer, any claim or claims by Acquirer made in any Claim Certificate within 20 Business Days after any such Claim Certificate is received by the Stockholders’ Agent, then the Stockholders’ Agent will be conclusively deemed to have consented, on behalf 20-day period following receipt of all Effective Time Holders, to the recovery by the Indemnified 54- Person of the full amount of Indemnifiable Damages specified in the Claim Certificate, including then Acquirer and the forfeiture Securityholder Agent shall Release from Indemnity to Acquirer an amount of such number of Escrow Shares Acquirer ADSs from the Escrow Indemnity Fund having a value sufficient to satisfy such Indemnifiable Damages andtotal value, without further notice, to have stipulated based on the volume weighted average price of an Acquirer ADS on the Nasdaq Global Market in the 30 trading days prior to the entry last day of a final judgment for Indemnifiable such 20-day period, equal to the amount of any Damages against the Effective Time Holders for corresponding to such amount claim or claims as set forth in any court having jurisdiction over the matter where venue is propersuch Claim Certificate.
(b) If the Stockholders’ Securityholder Agent objects in writing to any claim or claims by Acquirer made in any Claim Certificate within such 20 Business Day periodthe 20-day period set forth in Section 7.7(a), Acquirer and the Stockholders’ Securityholder Agent shall attempt in good faith for 30 Business Days 45 days after Acquirer’s receipt of such written objection to resolve such objectionobjection and the amount of Damages that are indemnifiable by the Sellers pursuant to this ARTICLE VII in connection with the claim or claims made by Acquirer in such Claim Certificate. If Acquirer and the Stockholders’ Securityholder Agent shall so agree, a memorandum setting forth such agreement shall be prepared Acquirer and signed by both parties. The Escrow the Securityholder Agent shall be entitled Release from Indemnity to conclusively rely Acquirer from the Indemnity Fund an amount of Acquirer ADSs having a total value, based on any the volume weighted average price of an Acquirer ADS on the Nasdaq Global Market in the 30 trading days prior to the resolution by the Acquirer and Securityholder Agent of such memorandum objection, equal to the amount of Damages so agreed by Acquirer and the Escrow Securityholder Agent shall distribute such number of Escrow Shares from to be indemnifiable by the Escrow Fund Sellers pursuant to this ARTICLE VII in accordance with the terms of such memorandumjoint written instruction.
(c) If no such agreement can be reached during the 30 Business Day 45-day period for good faith negotiationnegotiation set forth in Section 7.7(b), but in any event upon the expiration of such 30 Business Day 45-day period, either Acquirer or the Stockholders’ Securityholder Agent may bring suit an arbitration in accordance with the courts terms of the State of California and the Federal courts of the United States of America, in each case, located within Santa Xxxxx county in the State of California Section 8.11 to resolve the matter. The decision of the trial court arbitrator as to the validity and amount of any claim in such Claim Certificate shall be nonappealablenon-appealable, binding and conclusive upon the parties hereto and the Company Stockholders, and following such decision the Securityholder Agent and Acquirer shall Release from Indemnity to Acquirer from the Indemnity Fund an amount of Acquirer ADSs having a total value, based on the volume weighted average price of an Acquirer ADS on the Nasdaq Global Market in the 30 trading days prior to the decision regarding such matter by the arbitrator, equal to the amount of Damages so decided by the arbitrator to be indemnifiable by the Sellers pursuant to this AgreementARTICLE VII.
(d) Judgment upon any determination of an arbitrator may be entered in any court having jurisdiction. For purposes of this Section 7.7(d), in any suit hereunder in which any claim or the amount thereof stated in the Claim Certificate is at issue, Acquirer shall be deemed to be the prevailing party unless the arbitrator determines in favor of the Securityholder Agent (on behalf of the Company Stockholders) with respect to more than one-half of the amount in dispute, in which case the Company Stockholders shall be deemed to be the prevailing party. The Escrow Agent non-prevailing party to an arbitration shall (i) be entitled to conclusively rely on pay its own fees and act expenses and the fees and expenses of the prevailing party, including attorneys’ fees and costs, reasonably incurred in accordance connection with such decision andsuit.
(e) Any portion of the Indemnity Fund not Released from Indemnity on the Indemnity Release Date shall, following the Indemnity Release Date with respect to pending but unresolved claims for indemnification that are not awarded to Acquirer upon the resolution of such claims, be Released from Indemnity to the Sellers following resolution of such claims.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Vaccitech PLC)
Resolution of Objections to Claims. (a) If the Stockholders’ Agent does not contest, by written notice to Acquirer, any claim or claims by Acquirer made in any Claim Certificate within 20 Business Days after any such Claim Certificate is received by the Stockholders’ Agent, then the Stockholders’ Agent will be conclusively deemed to have consented, on behalf 30-day period following receipt of all Effective Time Holders, to the recovery by the Indemnified 54- Person of the full amount of Indemnifiable Damages specified in the Claim Certificate, including then the forfeiture of such Escrow Agent shall, upon Acquirer’s direction, distribute to Acquirer an amount in cash and a number of Escrow Shares shares of Acquirer Common Stock from the Escrow Fund having a total value sufficient equal to satisfy such the amount of any Indemnifiable Damages and, without further notice, corresponding to have stipulated to the entry of a final judgment for Indemnifiable Damages against the Effective Time Holders for such amount claim or claims as set forth in any court having jurisdiction over the matter where venue is propersuch Claim Certificate.
(b) If the Stockholders’ Agent objects in writing to any claim or claims by Acquirer made in any Claim Certificate within such 20 Business Day periodthe 30-day period set forth in Section 8.6(a), Acquirer and the Stockholders’ Agent shall attempt in good faith for 30 Business Days 45 days after Acquirer’s receipt of such written objection to resolve such objection. If Acquirer and the Stockholders’ Agent shall so agree, a memorandum joint written instruction setting forth such agreement shall be prepared and prepared, signed by both partiesparties and delivered to the Escrow Agent. The Escrow Agent shall be entitled to conclusively rely on any Upon receipt of such memorandum and instruction, the Escrow Agent shall distribute such to Acquirer an amount in cash and a number of Escrow Shares shares of Acquirer Common Stock from the Escrow Fund in accordance with the terms of such memorandumjoint written instruction.
(c) If no such agreement can be reached during the 30 Business Day 45-day period for good faith negotiationnegotiation set forth in Section 8.6(b), but in any event upon the expiration of such 30 Business Day 45-day period, either Acquirer or the Stockholders’ Agent may bring suit an arbitration in accordance with the courts terms of the State of California and the Federal courts of the United States of America, in each case, located within Santa Xxxxx county in the State of California Section 9.11 to resolve the matter. The decision of the trial court arbitrator as to the validity and amount of any claim in such Claim Certificate shall be nonappealablenon-appealable, binding and conclusive upon the parties hereto and the Converting Holders, and Acquirer shall be entitled to instruct the Escrow Agent to distribute to Acquirer and amount in cash and a number of shares of Acquirer Common Stock from the Escrow Fund in accordance therewith.
(d) Judgment upon any determination of an arbitrator may be entered in any court having jurisdiction. For purposes of this Section 8.6(d), in any suit hereunder in which any claim or the amount thereof stated in the Claim Certificate is at issue, Acquirer shall be deemed to be the prevailing party unless the arbitrator determines in favor of the Stockholders’ Agent (on behalf of the Converting Holders) with respect to more than one-half of the amount in dispute, in which case the Converting Holders shall be deemed to be the prevailing party. The non-prevailing party to an arbitration shall pay its own fees and expenses and the fees and expenses of the prevailing party, including attorneys’ fees and costs, reasonably incurred in connection with such suit.
(e) For the purpose of compensating Acquirer (on behalf of itself or any other Indemnified Person) for any Indemnifiable Damages pursuant to this Agreement, each whole share of Acquirer Common Stock in the Escrow Fund shall be deemed to have a value equal to the Acquirer Stock Price (as adjusted to appropriately reflect any stock split, reverse stock split, stock dividend, reorganization, reclassification, combination, recapitalization or other like change with respect to Acquirer Common Stock occurring after the Effective Time). The Escrow Agent Any and all payments of cash and shares of Acquirer Common Stock made to an Indemnified Person hereunder shall be made on the same ratio of cash and shares of Acquirer Common Stock equal to the ratio of (i) the Participating Non-Electing Investor Cash Escrow Amount to (ii) the sum of the Participating Electing Investor Stock Escrow Amount and the Management Retention Plan Stock Escrow Amount.
(f) Notwithstanding anything in this Section 8.6, any Claim for any Indemnifiable Damages pursuant to Section 1.6 with respect to any Final Net Working Capital Shortfall shall be entitled governed pursuant to conclusively rely on and act in accordance with such decision andthe provisions, including but not limited to the dispute resolution provisions, of Section 1.6.
Appears in 1 contract
Samples: Merger Agreement (Rocket Fuel Inc.)
