Securityholder Representative. (a) Each Securityholder hereby appoints ACAS as the “Securityholder Representative” to act as the agent of the Securityholders with the full power (i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the Securityholders, and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages. (b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement. (c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law. (d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders. (e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion of such counsel.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Nordson Corp), Stock Purchase Agreement (Nordson Corp)
Securityholder Representative. (a) Each By approving this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Company Securityholder hereby appoints ACAS shall have irrevocably authorized and appointed Securityholder Representative as such Person’s representative and attorney-in-fact to act on behalf of such Person for all purposes in connection with this Agreement, the “Additional Agreements and the agreements ancillary hereto and thereto. The Securityholder Representative” to Representative shall act as the agent representative of the Company Securityholders in respect of all matters arising under this Agreement, the Additional Agreements and the agreements ancillary hereto and thereto, and shall be authorized to act, or refrain from acting, with the full power (i) respect to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) any actions to execute and enter into, be taken by or on behalf of the Securityholders, and to take all actions thereunder for and on their behalfCompany Securityholders or the Securityholder Representative, including but not limited to enforce any rights granted to the authorization of payments from Company Securityholders hereunder and thereunder, in each case as the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims Securityholder Representative believes is necessary or appropriate under this Agreement, (iv) to receive from the Buyer monies payable to Additional Agreements and/or the agreements ancillary hereto and thereto, for and on behalf of the Company Securityholders. The Company Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take shall be bound by all such actions taken by the Securityholder Representative and the Company Securityholders shall not be permitted to take any such actions.
(or refrain from taking actionsb) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement The Securityholder Representative is serving as the Securityholder RepresentativeRepresentative solely for purposes of administrative convenience, in its sole discretion, deems proper, (vi) to pay, release and/or distribute and is not personally liable for any or all of the Reserve Account obligations of the Company, any of its Subsidiaries or otherwise to pay Losses the Company Securityholders hereunder, each in and Parent (on behalf of itself and its sole discretion, (viiAffiliates) agrees that it will not look to adjust the Securityholder Allocation Percentage of Representative or the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions underlying assets of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on for the acts and agreements satisfaction of any obligations of the Securityholder Representative as Company, any of its Subsidiaries or the acts and agreements of the Company Securityholders. The Securityholder Representative shall not be entitled liable for any error of judgment, or any action taken, suffered or omitted to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as be taken, in connection with the performance by the Securityholder Representative deems to be reasonably necessary of the Securityholder Representative’s duties or appropriate in connection with its performance the exercise by the Securityholder Representative of its obligations the Securityholder Representative’s rights and remedies under this Agreement, and all such fees and expenses incurred by any Additional Agreement or any agreement ancillary hereto or thereto, except in the Securityholder Representative case of its intentional fraud or willful misconduct. No bond shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct required of the Securityholder Representative. The Securityholder Representative may from time consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to time submit invoices be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Securityholder Representative shall not have any duty to ascertain or to inquire as to the Securityholders covering such expenses and/or liabilities and, upon the request performance or observance of any Securityholderof the terms, shall provide such Securityholder with an accounting covenants or conditions of all expenses paidthis Agreement or any Additional Agreement or any agreement ancillary hereto or thereto. In addition to any other rights or remedies (including Section 11.02(d))Without limiting the generality of the foregoing, the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it shall have the full power and authority to be owed to interpret all the Securityholder Representative against the Reserve Account terms and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination provisions of this AgreementAgreement and the Additional Agreements or any agreement ancillary hereto or thereto, and to consent to any amendment hereof or thereof on behalf of the Company Securityholders and their respective successors.
(c) The Buyer Each Company Securityholder, jointly and severally, agrees to indemnify and hold harmless the Securityholder Representative against all fees and expenses (including legal fees and expenses) and other amounts payable or incurred by the Securityholder Representative in connection with the performance of any of its duties under this Agreement or the Additional Agreements, including any such fees, expenses, or other amounts that may be incurred by the Securityholder Representative in connection with any Action to which the Securityholder Representative is made a party by reason of the fact it is or was acting as the Securityholder Representative pursuant to the terms of this Agreement or the Additional Agreements. Notwithstanding the foregoing in this clause (c), in no event will the indemnity contemplated in this clause (c) be paid by the Company Securityholders to the Securityholder Representative in the form of Earnout Shares released pursuant to the Earnout Escrow Agreement.
(d) Parent shall be fully protected in dealing entitled to rely on all statements, representations, decisions of, and actions taken or omitted to be taken by, the Securityholder Representative as being the statements, representations, decisions of, and actions of Company Securityholders with respect to the matters relating to this Agreement or any Additional Agreement or any agreement ancillary hereto or thereto. Parent shall be entitled to deal solely with the Securityholder Representative under (and shall not be required to deal with any Company Securityholder, in his, her or its capacity as such) with respect to the matters relating to this Agreement or any Additional Agreement or any agreement ancillary hereto or thereto.
(e) The Securityholder Representative may resign at any time by giving twenty (20) days’ notice to Parent and may rely upon the authority Company Securityholders; provided, however, in the event of the resignation or removal of the Securityholder Representative, a new Securityholder Representative (who shall be reasonably acceptable to act on behalf Parent) shall be appointed by the vote or written consent of a majority of the Securityholders. Any payment shares of Company Common Stock then held by the Buyer Company Securityholders as of immediately prior to the Securityholder Effective Time; provided, further, that if any such vacancy is not so filled within thirty (30) days following the occurrence of such vacancy, the Parent Representative to the extent authorized under this Agreement shall be considered entitled to appoint a payment by successor Securityholder Representative, and the Buyer provisions of this Section 11.18 shall apply in all respects to the Securityholders. such successor Securityholder Representative
(f) The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder Company Securityholders in any manner or for any reason. This power of attorney authority granted to the Securityholder Representative shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the any principal pursuant to any applicable Law.
(d) The . Txxxxx X. Xxxxx hereby accepts his appointment as the initial Securityholder Representative. Any decision, act, consent or instruction taken by the Securityholder Representative may resign from its capacity as in accordance with this Section 11.18 on behalf of Company Securityholders (each, an “Securityholder Representative at any time by written notice delivered to the Buyer Authorized”) shall be final, binding and the Securityholders. If there is a vacancy at any time in the position of conclusive on Company Securityholders as fully as if such Persons had taken such Securityholder Representative for any reasonAuthorized Action. Each Company Securityholder agrees that the Securityholder Representative, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative Representative, shall have no liability to a Company Securityholder for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Security Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion of such counselAuthorized Action.
Appears in 2 contracts
Samples: Merger Agreement (Revelstone Capital Acquisition Corp.), Merger Agreement (Revelstone Capital Acquisition Corp.)
Securityholder Representative. (a) Each Pursuant to the adoption of this Agreement by Company Common Stockholders representing greater than 50% of the outstanding shares of Company Common Stock, each Equity Holder will be deemed to have irrevocably appointed, authorized and empowered the Securityholder hereby appoints ACAS as the “Securityholder Representative” Representative to act as a representative for the benefit of each Equity Holder as the exclusive agent and attorney-in-fact with the power and authority to act on behalf of each Equity Holder in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the Securityholders with foregoing, the full Securityholder Representative shall have the power and authority to:
(i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, deliver on behalf of the Securityholders, Equity Holders such waivers and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, deems proper, may deem necessary or desirable;
(viii) to pay, release and/or distribute any or all enforce and protect the rights and interests of the Reserve Account or otherwise Equity Holders following the Effective Time and to pay Losses hereunder, each in its sole discretion, (vii) to adjust enforce and protect the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) rights and (viii) to perform all of the functions interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this AgreementAgreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. The Buyer is entitled Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to rely be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder Representative shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions);
(iii) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the acts part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, make, execute, acknowledge and agreements deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under matters related to this AgreementAgreement or the other Transaction Agreements (provided, and all that, no such fees and costs, expenses incurred by the Securityholder Representative or liabilities shall be borne pro rata by paid from the Securityholders based upon their respective initial Securityholder Allocation PercentagesEscrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) The Securityholders hereby agree severally Parent may rely upon all actions taken or omitted to indemnify be taken by the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement and the other Transaction Agreements, all of which actions or in connection herewith in such capacity; provided, that none of the Securityholders omissions shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, legally binding upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this AgreementEquity Holders.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the grant of authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative provided for herein (i) is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by and survive the death, illnessincompetency, dissolution, disability, incapacity bankruptcy or liquidation of any Equity Holder and (ii) shall survive the Merger and the consummation of other inability to act of transactions contemplated hereby and by the principal pursuant to any applicable Lawother Transaction Agreements.
(d) The All actions taken by the Securityholder Representative may resign from under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its capacity responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time by written notice delivered time, all references herein or in any other agreement or instrument contemplated hereby to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be filled by a Securityholders vote in deemed to refer to the form of a writing executed by the Securityholders entitled to Equity Holders holding a majority of the number outstanding shares of votes referred Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to in the next sentence. In such eventterms of this Agreement, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 the other Transaction Agreements and the authorization of a majority of such number of votes other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on all of the Securityholders and shall constitute the authorization of the Securityholdersthem.
(e) The By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall not have no liability to any Equity Holder with respect to actions taken or omitted to be liable to the Buyer or the Securityholders taken in its capacity as the Securityholder Representative for and that the Securityholder Representative shall be under no obligation to take any liability action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or for any error expenses arising out of judgment, or any act done or step actions taken or omitted by it believed by it to be taken in good faith or its capacity as the Securityholder Representative (except for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case those arising out of Securityholder Representative’s gross negligence or willful misconduct by itmisconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative may seek in accordance with the advice of reputable legal counsel immediately preceding sentence on a pro rata basis based on their respective equity interest in the event Company as of any dispute or question as immediately prior to the construction Closing. For the avoidance of any of doubt, the provisions of this Agreement or its duties hereunder, Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and it the Equity Holders agree that no additional consideration shall incur no liability in its capacity be required for the enforceability of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative to the Buyer shall have no personal responsibility or the Securityholders and shall be fully protected with respect to liability for any action takenexpenses, omitted costs or suffered other liabilities incurred by it in good faith in accordance with the opinion of such counselcapacity.
Appears in 2 contracts
Samples: Merger Agreement (Colfax CORP), Merger Agreement (DJO Finance LLC)
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS By virtue of the approval of the Merger and this Agreement by the requisite vote of the Stockholders, each of the Stockholders shall be deemed to have agreed to appoint Xxxxx Xxx as its agent and attorney-in-fact, as the “Securityholder Representative” to act as the agent of the Securityholders with the full power (i) to resolve all questions, disputes, conflicts Representative for and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the SecurityholdersHoldback Participants, Optionholders and Bonus Recipients to take all actions under this Agreement that are to be taken by the Securityholder Representative, including to amend this Agreement, to waive any provision of this Agreement, to negotiate payments due pursuant to this Article VII, to give and receive notices and communications, to authorize payment to any Indemnified Party from the Holdback Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Indemnified Party against any Holdback Participant, Optionholder or Bonus Recipient or by any such Holdback Participant, Optionholder or Bonus Recipient against any Indemnified Party or any dispute between any Indemnified Party and any such Holdback Participant, Optionholder or Bonus Recipient, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions thereunder that are either (i) necessary or appropriate in the judgment of the Securityholder Representative for and on their behalf, including but not limited the authorization accomplishment of payments from the Reserve Account foregoing or (including any increase thereof pursuant to Section 2.04(b)(i)ii) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from specifically mandated by the Buyer monies payable to the Securityholders in accordance with the provisions terms of this Agreement. A vacancy in the position of Securityholder Representative may be filled by the holders of a two-thirds majority in interest of the Holdback Fund. In the event a vacancy in the position of Securityholder Representative exists for fifteen (15) or more days, (v) Parent shall have the right to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as petition a court of competent jurisdiction to appoint a replacement Securityholder Representative. No bond shall be required of the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right not receive any compensation for its services. Notices or communications to deduct or from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating shall constitute notice to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder RepresentativeHoldback Participants, Optionholders and Bonus Recipients. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The This appointment of the Securityholder Representative agency and this power of attorney is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney and shall not be affected terminated by any Stockholder or by operation of Law, whether by the death or incapacity of any Stockholder that is an individual, termination of any trust or estate, the dissolution, liquidation or bankruptcy or any corporation, partnership or other entity or the occurrence of any other event, and any action taken by the Representative shall be as valid as if such death, illnessincapacity, termination, dissolution, disabilityliquidation, incapacity bankruptcy or other inability event had not occurred, regardless of whether or not the Representative shall have received any notice thereof.
(b) Until notified in writing by the Securityholder Representative that it has resigned or is otherwise unavailable to serve as Securityholder Representative, Parent and Parent may rely conclusively and act upon the directions, instructions and notices of the principal Securityholder Representative named above and, thereafter, upon the directions, instructions and notices of any successor named in a writing executed by a two- thirds majority-in-interest of the Holdback Fund filed with Parent.
(c) The Company, the Holdback Participants, Optionholders and Bonus Recipients each hereby authorize the Securityholder Representative to:
(i) Receive all notices or documents given or to be given to the Holdback Participants, Optionholders and Bonus Recipients pursuant hereto or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement and the transactions contemplated hereby or thereby as the Securityholder Representative may in its sole discretion deem appropriate; and
(iii) Take such action as the Securityholder Representative may in its sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or Sub contained in this Agreement or in any document delivered by Parent or Sub pursuant hereto; (B) taking such other action as the Securityholder Representative is authorized to take under this Agreement; (C) receiving all documents or certificates and making all determinations, in its capacity as Securityholder Representative, required under this Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement, including the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article VII and any applicable Lawwaiver of any obligation of Parent or the Surviving Corporation.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be hereunder as Securityholder Representative while acting in good faith and in the exercise of reasonable judgment. The Holdback Participants, Optionholders and Bonus Recipients shall indemnify the Securityholder Representative and hold the Securityholder Representative harmless against any loss, liability or for any mistake in fact expense incurred without gross negligence or law, bad faith on the part of the Securityholder Representative and arising out of or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence acceptance or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any administration of the provisions of this Agreement or its Securityholder Representative’s duties hereunder, including the reasonable fees and it expenses of any legal counsel retained by the Securityholder Representative. A decision, act, consent or instruction of the Securityholder Representative, including an amendment, extension or waiver of this Agreement, shall incur no liability in its capacity as Securityholder Representative to constitute a decision of the Buyer or the Securityholders Holdback Participants, Optionholders and Bonus Recipients and shall be fully protected with respect final, binding and conclusive upon the Holdback Participants, Optionholders and Bonus Recipients; and Parent may rely upon any such decision, act, consent or instruction of the Securityholder Representative as being the decision, act, consent or instruction of the Holdback Participants, Optionholders and Bonus Recipients. The Parent is hereby relieved from any liability to any action takenperson for any decision, omitted act, consent or suffered by it in good faith in accordance with instruction of the opinion of such counselSecurityholder Representative.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (FOTV Media Networks Inc.)
Securityholder Representative. (a) Each Securityholder For purposes of this Agreement, the Securityholders hereby appoints ACAS designate Xxxxx Xxxxxx to serve as the sole and exclusive representative of the Securityholders (the “Securityholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Securityholder Representative and with respect to the Escrow Agreement; provided, however, that if Xxxxx Xxxxxx at any time is unable, due to incapacity or otherwise, to serve as Securityholder Representative or resigns as Securityholder Representative, then successive Securityholder Representatives shall be chosen by Securityholders holding a majority of Units outstanding immediately prior to the Closing (including Units issuable upon exercise of Options outstanding as of immediately prior to the Closing). Each successor Securityholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Securityholder Representative. Each successor Securityholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Securityholder Representative, and the term “Securityholder Representative” as used herein shall be deemed to act include any successor Securityholder Representative.
(b) The Securityholder Representative is hereby constituted and appointed as agent and attorney-in-fact for and on behalf of the other Securityholders with respect to the performance of his or her duties as the agent Securityholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Securityholder, by operation of Law, whether by such Securityholder’s death, disability, protective supervision or any other event. The Securityholder Representative shall promptly deliver to each Securityholder any notice received by the Securityholder Representative concerning this Agreement. Without limiting the generality of the Securityholders with foregoing, the Securityholder Representative has full power and authority, on behalf of each Securityholder and such Securityholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to resolve all questionsbe executed and delivered by the Securityholders in connection herewith, disputes, conflicts and controversies concerning Losses as provided in this Article 11including the Escrow Agreement, (ii) to execute and enter intodeliver and receive deliveries of all agreements, on behalf certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the Securityholderstransactions contemplated by this Agreement and the Escrow Agreement, (iii) receive service of process in connection with any claims under this Agreement or the Escrow Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions thereunder necessary or appropriate in the judgment of the Securityholder Representative for and on their behalf, including but not limited the authorization accomplishment of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreementforegoing, (v) give and receive notices and communications, (vi) authorize delivery to otherwise Buyer of (A) the Adjustment Escrow Amount or any portion thereof if the Net Adjustment Amount as finally determined in accordance with Section 2.3 is negative and (B) the Indemnity Escrow Amount or any portion thereof in satisfaction of claims brought by Buyer for Losses, (vii) object to such deliveries, (viii) distribute the Adjustment Escrow Amount and the Indemnity Escrow Amount and any earnings and proceeds thereon, (ix) agree to, negotiate, enter into settlements and compromises regarding the Earnout Statements and Earnout payments with respect to any Earnout period, and (x) take such all actions (necessary or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) appropriate in the judgment of the Securityholder Representative on behalf of the Securityholders’ behalf Securityholders in connection with this Agreement as and the Securityholder Representative, in its sole discretion, deems proper, Escrow Agreement.
(vic) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred Service by the Securityholder Representative shall be borne pro rata without compensation except for reimbursement out of the Representative Expense Fund and the reimbursement by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (of out-of-pocket expenses and indemnification, in its capacity each case as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Lawspecifically provided herein.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s otherwise exist against the Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) Representative. The Securityholder Representative shall not be liable to any Securityholder relating to the performance of the Securityholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Securityholder Representative constituted Fraud or were taken or not taken in bad faith. The Securityholder Representative shall be indemnified and held harmless by the Securityholders against all liabilities, claims, Losses, fees, fines costs amounts paid in settlement, judgments or expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), that the Securityholder Representative may suffer or incur in connection with any action or omission of the Securityholder Representative (collectively, “Representative Expenses”) ; provided, however, that the Securityholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Securityholder Representative constituted Fraud or were taken or not taken in bad faith. The Securityholder Representative shall be protected in acting upon any notice, statement or certificate believed by the Securityholder Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter. Any such Representative Expenses may be recovered, first, from the Representative Expense Fund, second, from funds to be released from the Indemnity Escrow Amount and otherwise distributable to the Securityholders at the time of distribution, and third, directly from the Securityholders.
(e) Buyer shall be entitled to conclusively rely in good faith upon any actions taken by the Securityholder Representative as the duly authorized action of the Securityholder Representative on behalf of each Securityholder with respect to any matters set forth in this Agreement or the Escrow Agreement.
(f) The Representative Expense Amount will be deposited by Buyer in the Representative Expense Fund in accordance with Section 1.6(c). The Representative Expense Fund shall be held by the Securityholder Representative as agent and for the benefit of the Securityholders in its capacity as a segregated client account and shall be used for the purpose of paying directly, or reimbursing the Securityholder Representative for for, any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing Representative Expenses incurred in connection with this Agreement except in and the case of gross negligence or willful misconduct by itother Transaction Documents. The Securityholder Representative may seek contribute funds to the Representative Expense Fund from any consideration otherwise distributable to the Securityholders. The Securityholder Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of reputable legal counsel principal of the Representative Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Fund, and has no tax reporting or income distribution obligations. The Securityholders will not receive any interest on the Representative Expense Fund and assign to the Securityholder Representative any such interest. As soon as reasonably determined by the Securityholder Representative that the Representative Expense Fund is no longer required to be withheld, and in any event not later than the later of (i) the date on which all funds are released from the Indemnity Escrow Amount fund and (ii) the final determination of any dispute or question as amounts payable in respect of the Earnout, the Securityholder Representative shall distribute the then-remaining amount of the Representative Expense Fund, if any, to the construction Securityholders based on their respective Additional Pro Rata Share; provided that amounts payable in respect of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative Optionholder may be delivered to the Buyer or the Securityholders and shall be fully protected with respect Company for payment through a designated payroll account, subject to any action taken, omitted or suffered all applicable withholdings therefrom as required by it in good faith in accordance with the opinion of such counselLaw.
Appears in 2 contracts
Samples: Unit Purchase Agreement (LendingTree, Inc.), Unit Purchase Agreement (LendingTree, Inc.)
Securityholder Representative. (a) Each By approving this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Company Securityholder hereby appoints ACAS shall have irrevocably authorized and appointed Securityholder Representative as such Person's representative and attorney-in-fact to act on behalf of such Person for all purposes in connection with this Agreement, the “Ancillary Agreements and the agreements ancillary hereto and thereto. The Securityholder Representative” to Representative shall act as the agent representative of the Company Securityholders in respect of all matters arising under this Agreement, the Ancillary Agreements and the agreements ancillary hereto and thereto, and shall be authorized to act, or refrain from acting, with the full power (i) respect to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) any actions to execute and enter into, be taken by or on behalf of the Securityholders, and to take all actions thereunder for and on their behalfCompany Securityholders or the Securityholder Representative, including but not limited to enforce any rights granted to the authorization of payments from Company Securityholders hereunder and thereunder, in each case as the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims Securityholder Representative believes is necessary or appropriate under this Agreement, (iv) to receive from the Buyer monies payable to Ancillary Agreements and/or the agreements ancillary hereto and thereto, for and on behalf of the Company Securityholders. The Company Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take shall be bound by all such actions taken by the Securityholder Representative and the Company Securityholders shall not be permitted to take any such actions.
(or refrain from taking actionsb) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement The Securityholder Representative is serving as the Securityholder RepresentativeRepresentative solely for purposes of administrative convenience, in its sole discretion, deems proper, (vi) to pay, release and/or distribute and is not personally liable for any or all of the Reserve Account obligations of the Company, any of its Subsidiaries or otherwise to pay Losses the Company Securityholders hereunder, each in and Goldenstone (on behalf of itself and its sole discretion, (viiAffiliates) agrees that it will not look to adjust the Securityholder Allocation Percentage of Representative or the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions underlying assets of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on for the acts and agreements satisfaction of any obligations of the Securityholder Representative as Company, any of its Subsidiaries or the acts and agreements of the Company Securityholders. The Securityholder Representative shall not be entitled liable for any error of judgment, or any action taken, suffered or omitted to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as be taken, in connection with the performance by the Securityholder Representative deems to be reasonably necessary of the Securityholder Representative’s duties or appropriate in connection with its performance the exercise by the Securityholder Representative of its obligations the Securityholder Representative’s rights and remedies under this Agreement, and all such fees and expenses incurred by any Ancillary Agreement or any agreement ancillary hereto or thereto, except in the Securityholder Representative case of its intentional fraud or willful misconduct. No bond shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct required of the Securityholder Representative. The Securityholder Representative may from time consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to time submit invoices be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Securityholder Representative shall not have any duty to ascertain or to inquire as to the Securityholders covering such expenses and/or liabilities and, upon the request performance or observance of any Securityholderof the terms, shall provide such Securityholder with an accounting covenants or conditions of all expenses paidthis Agreement or any Ancillary Agreement or any agreement ancillary hereto or thereto. In addition to any other rights or remedies (including Section 11.02(d))Without limiting the generality of the foregoing, the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it shall have the full power and authority to be owed to interpret all the Securityholder Representative against the Reserve Account terms and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination provisions of this AgreementAgreement and the Ancillary Agreements or any agreement ancillary hereto or thereto, and to consent to any amendment hereof or thereof on behalf of the Company Securityholders and their respective successors.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement may resign at any time by giving twenty (20) days’ notice to Goldenstone and may rely upon the authority Company Securityholders; provided, however, in the event of the resignation or removal of the Securityholder Representative, a new Securityholder Representative (who shall be reasonably acceptable to act on behalf Goldenstone) shall be appointed by the vote or written consent of a majority of the Securityholders. Any payment shares of Goldenstone Common Stock, voting together as a single class (with each such share entitled to one vote), then held by the Buyer Company Securityholders as of immediately prior to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. Effective Time.
(d) The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder Company Securityholders in any manner or for any reason. This power of attorney authority granted to the Securityholder Representative shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the any principal pursuant to any applicable Law.
. Xxx (dXxxxx) The Xxxx hereby accepts his appointment as the initial Securityholder Representative. Any decision, act, consent or instruction taken by the Securityholder Representative may resign from its capacity as in accordance with this Section 10.11 on behalf of Company Securityholders (each, an “Securityholder Representative at any time by written notice delivered to the Buyer Authorized Action”) shall be final, binding and the Securityholders. If there is a vacancy at any time in the position of conclusive on Company Securityholders as fully as if such Persons had taken such Securityholder Representative for any reasonAuthorized Action. The Indemnified Party agrees that the Securityholder Representative, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative Representative, shall have no liability to the Indemnified Party for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion of such counselAuthorized Action.
Appears in 1 contract
Samples: Business Combination Agreement (Goldenstone Acquisition Ltd.)
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS By virtue of the approval and adoption of this Agreement by the requisite consent of the Company Securityholders, each of the Company Securityholders (other than such Company Securityholders, if any, who have perfected appraisal rights under Delaware) shall be deemed to have agreed to appoint Technology Crossover Management VI, L.L.C., a Delaware limited liability company, as its agent and attorney-in-fact (the “Securityholder Representative” to act as the agent of the Securityholders with the full power (i”) to resolve all questions, disputes, conflicts for and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the Company Securityholders to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Indemnified Party against any Company Securityholder or by any such Company Securityholder against any Indemnified Party or any dispute between any Indemnified Party and any such Company Securityholders, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions thereunder that are either (i) necessary or appropriate in the judgment of the Securityholder Representative for and on their behalfthe accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement. Such agency may be changed by the Company Securityholders with the right to a majority of the Pro Rata Portions of the Escrow Fund from time to time. Notwithstanding the foregoing, including but not limited the authorization Securityholder Representative may resign at any time by providing written notice of payments from the Reserve Account (including any increase thereof pursuant intent to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable resign to the Securityholders Company Securityholders, which resignation shall be effective upon the earlier of
(A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in accordance with interest of the provisions Escrow Fund. No bond shall be required of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders not receive any compensation for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreementservices.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(eb) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be hereunder as Securityholder Representative while acting in good faith faith, even if such act or for any mistake omission constitutes negligence on the part of such Securityholder Representative. The Securityholder Representative shall only have the duties expressly stated in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence and shall have no other duty, express or willful misconduct by itimplied. The Securityholder Representative may seek engage attorneys, accountants and other professionals and experts. The Securityholder Representative may in good faith rely conclusively upon information, reports, statements and opinions prepared or presented by such professionals, and any action taken by the advice Securityholder Representative based on such reliance shall be deemed conclusively to have been taken in good faith. The Company Securityholders shall indemnify the Securityholder Representative and hold the Securityholder Representative harmless against any loss, liability or expense incurred on the part of reputable the Securityholder Representative (so long as the Securityholder Representative was acting in good faith in connection therewith) and arising out of or in connection with the acceptance or administration of the Securityholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel in retained by the event of any dispute or question as Securityholder Representative and travel expenses (“Securityholder Representative Expenses”). The Representative Reimbursement Fund shall be available to reimburse the Securityholder Representative Expenses actually incurred by the Securityholder Representative promptly following the Securityholder Representative’s delivery to the construction Escrow Agent of any a certificate setting forth such Securityholder Representative Expenses actually incurred. Upon the Escrow Termination Date, the balance of the provisions Representative Reimbursement Fund shall promptly be delivered to the Company Securityholders, except with respect to any amount necessary to satisfy any pending certified requests made by the Securityholder Representative for Securityholder Representative Expenses. As soon as all such Securityholder Representative Expenses have been properly paid, the Escrow Agent shall immediately deliver the remaining portion of the Representative Reimbursement Amount to the Company Securityholders. Deliveries from the Representative Reimbursement Fund to the Company Securityholders pursuant to this Section 8.6(b) and the Escrow Agreement shall be made in proportion to their respective Pro Rata Portion of the remaining Representative Reimbursement Amount, with each amount rounded to the nearest whole cent ($0.01). A decision, act, consent or instruction of the Securityholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Sections 9.4 or its duties hereunder9.5 hereof, and it shall incur no liability in its capacity as Securityholder Representative to constitute a decision of the Buyer or the Company Securityholders and shall be fully protected final, binding and conclusive upon the Company Securityholders.
(c) From and after the Effective Time, Parent shall cause Surviving Corporation to provide the Securityholder Representative with respect reasonable access to any action taken, omitted or suffered by it in good faith in accordance with information about the opinion Surviving Corporation solely for purposes of such counselperforming its duties and exercising its rights under this Agreement.
Appears in 1 contract
Samples: Merger Agreement (IHS Inc.)
Securityholder Representative. (a) Each Securityholder hereby irrevocably appoints ACAS the Securityholder Representative as the “Securityholder Representative” such Securityholder’s representative, attorney-in-fact and agent, with full power of substitution to act in the name, place and stead to act on behalf of such Securityholder in any amendment of or litigation or arbitration involving this Agreement, including, without limitation, defending, negotiating, settling or otherwise dealing with claims under ARTICLE IX hereof, and to do or refrain from doing all such further acts and things, and to execute all such documents, as the agent such Securityholder Representative shall deem necessary or appropriate in conjunction with any of the Securityholders with transactions contemplated by this Agreement (subject to the full power foregoing limitation), including, without limitation, the power:
(i) to resolve take all questions, disputes, conflicts and controversies concerning Losses as provided action necessary or desirable in connection with the waiver of any condition to the obligations of the Securityholders to consummate the transactions contemplated by this Article 11, Agreement;
(ii) to negotiate, execute and enter intodeliver all ancillary agreements, statements, certificates, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement (it being understood that such Securityholder shall execute and deliver any such documents which the Securityholder Representative agrees to execute);
(iii) to give and receive all notices and communications to be given or received under this Agreement and to receive service of process in connection with any claims under this Agreement and the transactions contemplated hereby;
(iv) to take all actions which under this Agreement and the transactions contemplated hereby may be taken by the Securityholders and to do or refrain from doing any further act or deed on behalf of the Securityholders, and to take all actions thereunder for and on their behalf, including but not limited Securityholder which the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) Securityholder Representative deems necessary or appropriate in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable its sole discretion relating to the Securityholders in accordance with the provisions subject matter of this Agreement, Agreement and the transactions contemplated hereby as fully and completely as such Securityholder could do if personally present; and
(v) to otherwise take such actions (comply with final, non-appealable orders or refrain from taking actions) decisions issued or process entered by any court of competent jurisdiction or arbitrator and execute such documents (including any modifications, waivers or amendments thereto) on if the Securityholders’ behalf in connection Representative complies with this Agreement as the Securityholder Representativeany such order, in its sole discretionwrit, deems properjudgment or decree, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable it shall not be liable to any particular Securityholder as a result of the payment of Losses resulting from breaches or to any other Person by reason of such Securityholder’s representationscompliance even though such order, warrantieswrit, covenants judgment or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall decree may be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary subsequently reversed, modified, annulled set aside or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentagesvacated.
(b) The Securityholder Representative will not be liable to the Securityholders hereby agree severally for any action taken or omitted by him, her or it as permitted under this Agreement and the transactions contemplated hereby, except if such action is taken or omitted in bad faith, by willful misconduct or due to gross negligence or constitutes a breach of the Securityholder Representative Agreement. The Securityholder Representative will also be fully protected against the Securityholders in relying upon any written notice, demand, certificate or document that he, she or it in good faith believes to be genuine (including facsimiles thereof).
(c) The Indemnifying Securityholders agree, in accordance with their respective Indemnity Pro Rata Share, to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, againstfor, and to hold the Securityholder Representative (in its capacity as such) harmless from (and against, any loss, liability or expense incurred without willful misconduct, bad faith, gross negligence or breach of the Securityholder Representative shall have Agreement on the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct part of the Securityholder Representative, arising out of or in connection with the Securityholder Representative’s carrying out his, her or its duties under this Agreement and the transactions contemplated hereby, including costs and expenses (which may be funded from the Expense Fund or any amount payable to the Securityholders pursuant to Section 3.8, in either case, solely if and to the extent not subject to any claims for indemnification by any Buyer Indemnified Party) of successfully defending the Securityholder Representative against any claim of liability with respect thereto. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities andconsult with counsel of his, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights her or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account its own choice and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement will have full and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest complete authorization and shall be irrevocable by any Securityholder in any manner or protection for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer action taken and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith and in accordance with the opinion of such counsel.
(d) In acting hereunder, the Securityholder Representative shall act on behalf of all Securityholders and not on behalf of any one Securityholder.
(e) If the Securityholder Representative becomes unable to serve as Securityholder Representative, such other Person or Persons as may be designated by a majority of the Securityholders, based on each Securityholder’s Indemnity Pro Rata Share, and shall succeed as the Securityholder Representative.
(f) The appointment of the Securityholder Representative hereunder is coupled with an interest and therefore is irrevocable and shall survive the bankruptcy, dissolution or liquidation of any Securityholder, and any action taken by the Securityholders’ Representative pursuant to the authority granted in this Section 11.1 shall be effective and absolutely binding as the action of the Securityholders’ Representative; provided, however, that all of the rights and obligations of the Securityholders’ Representative hereunder may be assigned by the Securityholders’ Representative to any successor-in-interest or Affiliate of the Securityholders’ Representative.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Aldeyra Therapeutics, Inc.)
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS By virtue of the approval of the Merger and this Agreement by the requisite vote of the Stockholders, each of the Stockholders shall be deemed to have agreed to appoint Xxxx Xxxxx as its agent and attorney-in-fact, as the “Securityholder Representative” to act as the agent of the Securityholders with the full power (i) to resolve all questions, disputes, conflicts Representative for and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the SecurityholdersEscrow Participants to take all actions under this Agreement and the Paying Agent Agreement that are to be taken by the Securityholder Representative, including to amend this Agreement or the Paying Agent Agreement, to waive any provision of this Agreement or the Paying Agent Agreement, to negotiate payments due pursuant to this Article VI, to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, 105132706 v11 and comply with orders of courts with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Indemnified Party against any Escrow Participant or by any such Escrow Participant against any Indemnified Party or any dispute between any Indemnified Party and any such Escrow Participant, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions thereunder that are either (i) necessary or appropriate in the judgment of the Securityholder Representative for and on their behalf, including but not limited the authorization accomplishment of payments from the Reserve Account foregoing or (including any increase thereof pursuant to Section 2.04(b)(i)ii) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from specifically mandated by the Buyer monies payable to the Securityholders in accordance with the provisions terms of this Agreement. Such agency may be changed by the Stockholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Securityholder Representative may not be removed unless holders of at least a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Securityholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. In the event a vacancy in the position of Securityholder Representative exists for thirty (v30) or more days, Parent shall have the right, upon thirty (30) days’ prior written notice to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modificationsthe Escrow Participants, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as to petition a court of competent jurisdiction to appoint a replacement Securityholder Representative. No bond shall be required of the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by not receive any compensation for its services. Notices or communications to or from the Securityholders based upon their respective initial Securityholder Allocation PercentagesRepresentative shall constitute notice to or from the Escrow Participants.
(b) The Securityholders hereby agree severally to indemnify All decisions and actions of the Securityholder Representative (in its capacity as such), on a pro rata basis based behalf of the Escrow Participants shall be deemed to be facts ascertainable outside of this Agreement and shall be binding upon their respective Securityholder Allocation Percentages, againstall Escrow Participants, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative no Escrow Participant shall have the right to deduct from object, dissent, protest or otherwise contest the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreementsame.
(c) The Buyer shall be fully protected Securityholder Representative represents and warrants to Parent and to the Escrow Agent that it has the irrevocable right, power and authority to enter into and perform this Agreement.
(d) Until notified in dealing with writing by the Securityholder Representative under this Agreement that it has resigned, or that it has been removed by at least two-thirds in interest of the Escrow Fund, Parent and the Escrow Agent may rely conclusively and act upon the authority directions, instructions and notices of the Securityholder Representative to act on behalf named above and, thereafter, upon the directions, instructions and notices of any successor named in a writing executed by a majority-in-interest of the Securityholders. Any payment by Escrow Fund filed with the Buyer to Escrow Agent.
(e) The Company, the Escrow Participants and the Stockholders each hereby authorize the Securityholder Representative to:
(i) Receive all notices or documents given or to be given to the extent authorized Escrow Participants or the Stockholders pursuant hereto or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement shall be considered a payment and the transactions contemplated hereby or thereby as the Securityholder Representative may in its sole discretion deem appropriate; and 000000000 x00
(xxx) Take such action as the Securityholder Representative may in its sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or Sub contained in this Agreement or in any document delivered by the Buyer to the Securityholders. The appointment of Parent or Sub pursuant hereto; (B) taking such other action as the Securityholder Representative is authorized to take under this Agreement; (C) receiving all documents or certificates and making all determinations, in its capacity as Securityholder Representative, required under this Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement, including the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article VI and any waiver of any obligation of Parent or the Surviving Corporation. The provisions of this Section 6.5 are independent and severable, are irrevocable (subject only to Section 6.5(b)) and coupled with an interest and shall be irrevocable enforceable notwithstanding any rights or remedies that any Escrow Participant may have in connection with the transactions contemplated by this Agreement. The provisions of this Section 6.5 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Escrow Participant, and any references in this Agreement to a Escrow Participant shall mean and include the successors to the rights of each applicable Escrow Participant hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) At the Effective Time, Parent shall pay the Securityholder Representative Expense Amount to the Securityholder Representative, which Securityholder Representative Expense Amount shall be maintained by the Securityholder Representative in any manner or for any reasona segregated account. This power of attorney The Securityholder Representative shall not be affected paid any fee for services to be rendered hereunder but shall be reimbursed for reasonable out-of-pocket expenses incurred in the performance of the Securityholder Representative’s duties (including the reasonable fees and expenses of counsel) under this Agreement from the Securityholder Representative Expense Amount and, if the remaining Securityholder Representative Expense Amount is insufficient to pay such expenses, from the first proceeds from Future Payments otherwise available for distribution to the Escrow Participants. Upon the determination of the Securityholder Representative that retaining any portion of the Securityholder Representative Expense Amount is no longer necessary, the Securityholder Representative shall deliver any then remaining portion of the Securityholder Representative Expense Amount (the “Securityholder Representative Account Payment”) to the Paying Agent, which will promptly pay (i) to each holder of Company Capital Stock converted pursuant to Section 1.6(b) a portion thereof equal to such holder’s Pro Rata Portion of the Securityholder Representative Account Payment and (ii) to each holder of a Company Option a portion thereof equal to such holder’s Pro Rata Portion of the Securityholder Representative Account Payment (which amount shall be paid by the death, illness, dissolution, disability, incapacity or other inability Surviving Corporation to act such holder with the first payroll payment after the Surviving Corporation’s receipt of the principal pursuant such amount and shall be subject to any applicable Law.
(d) withholding as provided in Section 1.6(d)). The Securityholder Representative may resign from its capacity as shall hold, invest, reinvest and disburse the Securityholder Representative Expense Amount in trust for all of the Escrow Participants, and the Securityholder Representative Expense Amount shall not be used for any other purpose; provided, however, that the Securityholder Representative may, in his sole discretion, and at any time by written notice delivered or from time to time, disburse up to $100,000 from the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative Expense Amount to Xxxxxx Xxxxxxxxxx solely for the purpose of paying or reimbursing reasonable out-of-pocket expenses incurred in connection with any reason, such vacancy shall be filled by a Securityholders vote in dispute regarding the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentenceSecurityholder Earnout Agreements. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.000000000 x00
(ex) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be hereunder as Securityholder Representative while acting in good faith and in the exercise of reasonable judgment. The Escrow Participants shall indemnify the Securityholder Representative and hold the Securityholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Securityholder Representative and arising out of or in connection with the acceptance or administration of the Securityholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Securityholder Representative. Any such claim for indemnification shall be satisfied first from any then available portion of the remaining Securityholder Representative Expense Amount and, if such amount is insufficient to satisfy any such loss, liability or expense, from the first proceeds from Future Payments otherwise available for distribution to the Escrow Participants or by a claim against the Escrow Participants (with each Escrow Participant liable for the Pro Rata Portion of any such claim that is represented by such Escrow Participant’s Company Capital Stock and Company Equity Awards). A decision, act, consent or instruction of the Securityholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Escrow Participants and shall be final, binding and conclusive upon the Escrow Participants; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Securityholder Representative as being the decision, act, consent or instruction of the Escrow Participants. The Escrow Agent, Parent, Sub and each of their respective affiliates are hereby relieved from any liability to any person for any mistake decision, act, consent or instruction of the Securityholder Representative.
(h) Solely to the extent required to validate the calculation of Losses set forth on any Officer’s Certificate or to defend a Third Party Claim pursuant to, and in fact accordance with, Section 6.4(e), the Securityholder Representative shall have reasonable access to relevant information about the Company and Parent and the reasonable assistance of the Company’s and Parent’s employees for purposes of performing the Securityholder Representative’s duties and exercising the Securityholder Representative’s rights hereunder; provided, that the Securityholder Representative shall treat confidentially and not disclose any nonpublic information from or law, about the Company to anyone except (i) in connection with any disputes arising out of or for anything which it may do or refrain from doing in connection with this Agreement except and (ii) on a need-to-know basis to individuals who agree to treat such information confidentially and execute a customary non-disclosure agreement in the case of gross negligence or willful misconduct form provided by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion of such counselParent.
Appears in 1 contract
Samples: Draft Agreement (Rovi Corp)
Securityholder Representative. (a) Each Securityholder By voting in favor of the adoption of this Agreement, the approval of the principal terms of the Mergers, and the consummation of the Mergers, executing a Joinder Agreement or participating in the Mergers and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Mergers, each Company Indemnitor shall be deemed to have approved the designation of, and hereby appoints ACAS designates, Shareholder Representative Services LLC as the “Securityholder Representative” to act as the representative, agent of the Securityholders with the full power (i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) to execute attorney-in-fact for and enter into, on behalf of the SecurityholdersCompany Indemnitors as of the Closing for all purposes in connection with this Agreement, the Paying Agent Agreement and the Escrow Agreement, and any other agreements ancillary hereto, including to give and receive notices and communications, to authorize satisfaction of claims by Parent, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all other actions thereunder that are either (i) necessary or appropriate in the judgment of the Securityholder Representative for and on their behalf, including but not limited the authorization accomplishment of payments from the Reserve Account foregoing or (including any increase thereof pursuant to Section 2.04(b)(i)ii) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from permitted by the Buyer monies payable to the Securityholders in accordance with the provisions terms of this Agreement, (v) to otherwise take such actions (the Paying Agent Agreement or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Escrow Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall may resign at any time upon at least ten (10) days prior written notice to the Company Indemnitors. Such agency may be entitled changed by the Company Indemnitors from time to retain counsel and time upon not less than ten (10) days prior written notice to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as Parent; provided, that the Securityholder Representative deems may not be removed unless the former holders of a majority of Company Capital Stock agree to such removal and to the identity of the substituted agent. A vacancy in the position of Securityholder Representative may be reasonably necessary filled by the former holders of a majority of Company Capital Stock. No bond shall be required of the Securityholder Representative. After the Closing, notices or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by communications to or from the Securityholder Representative shall be borne pro rata by constitute notice to or from the Securityholders based upon their respective initial Securityholder Allocation PercentagesCompany Indemnitors.
(b) The Securityholders hereby agree severally to indemnify Neither the Securityholder Representative nor any member of the Advisory Committee (as defined in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold that certain engagement letter entered into between the Securityholder Representative and certain of the Company Indemnitors in connection with the transactions contemplated hereby (in its capacity as suchthe “Engagement Letter”)) harmless from (and shall incur liability of any kind with respect to any action or omission by the Securityholder Representative shall have or the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative Advisory Committee in such capacity in any way relating to or arising out of its action or failure to take action connection with their services pursuant to this Agreement, the Engagement Letter, the Paying Agent Agreement, the Escrow Agreement or in connection herewith in such capacity; providedany other agreement ancillary hereto, that none of except to the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements extent resulting solely from the bad faith, gross negligence or willful misconduct of the Securityholder Representative or such member of the Advisory Committee, as applicable. For the avoidance of doubt, the preceding sentence shall not prejudice the Securityholder Representative’s right to indemnification from the members of the Advisory Committee (in their capacity as Company Indemnitors) pursuant to the following sentence. The Company Indemnitors shall, on a several and not joint basis and based on their respective Pro Rata Shares, indemnify, defend and hold harmless the Securityholder Representative may and each member of the Advisory Committee from time to time submit invoices and against any and all losses, liabilities, damages, penalties, fines, forfeitures, actions, fees, and out-of-pocket costs and expenses (including the reasonable out-of-pocket fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) to the Securityholders covering such expenses and/or liabilities andextent arising out of or in connection with the Securityholder Representative’s or the Advisory Committee’s execution and performance of this Agreement, upon the request of any SecurityholderPaying Agent Agreement, shall provide such Securityholder with an accounting of all expenses paid. In addition to the Escrow Agreement and any other rights agreements ancillary hereto, in each case as such Representative Loss is suffered or remedies (including Section 11.02(d))incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Securityholder Representative or such member of the Advisory Committee, as applicable, the Securityholder Representative mayor such member of the Advisory Committee, upon prior as applicable, shall promptly reimburse the Company Indemnitors the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or contemporaneous written notice, offset any amounts determined by it to be owed willful misconduct. If not paid directly to the Securityholder Representative against by the Reserve Company Indemnitors, any such Representative Losses may be recovered by the Securityholder Representative from (i) the funds in the Expense Fund Account and against (ii) any other funds that become payable to the Company Indemnitors under this Agreement at such time as such amounts would otherwise be distributable to the Company Indemnitors; provided, that while this section allows the Securityholder Representative to be paid from the aforementioned source of funds, this does not relieve the Company Indemnitors from their obligation to promptly pay, in accordance with their respective Pro Rata Shares, such Representative Losses as they are suffered or incurred, nor does it prevent the Securityholder Representative from seeking any remedies available to it at law or otherwise. In no event shall the Securityholder Representative be required to advance its own funds on behalf of the Company Indemnitors or otherwise. Notwithstanding anything in this Agreement to the Securityholders hereundercontrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Indemnitors set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Securityholder Representative under this section. The agreements in this Section 11.04 Company Indemnitors acknowledge and agree that the foregoing indemnities shall survive the resignation or removal of the Securityholder Representative or the termination of this Agreement.
(c) The Buyer Upon the Closing, Parent shall wire to an account of Securityholder Representative as set forth on the Allocation Schedule (the “Expense Fund Account”) an amount of $200,000 in cash (the “Expense Fund”), which shall be fully protected in dealing with used for the purposes of paying directly, or reimbursing the Securityholder Representative under for, any third party expenses pursuant to this Agreement, Escrow Agreement and may rely upon any other agreements ancillary hereto. The Company Indemnitors shall not receive any interest or earnings on the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer Expense Fund and irrevocably transfer and assign to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder ownership right that they may otherwise have had in any manner such interest or for any reasonearnings. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability loss of principal of the Expense Fund other than as a Securityholder or for any error result of judgmentits bad faith, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by itmisconduct. The Securityholder Representative may seek the advice of reputable legal counsel shall hold these funds separate from its corporate funds, shall not use these funds for its operating expenses or any other corporate purposes and shall not voluntarily make these funds available to its creditors in the event of any dispute or question bankruptcy. As soon as practicable after the completion of the Securityholder Representative’s responsibilities, the Securityholder Representative shall deliver the balance of the Expense Fund to the construction Paying Agent for further distribution to the Company Securityholders the portion of any such balance payable pursuant to Section 1.7(a), Section 1.7(b)(i) and Section 1.7(c), as applicable; provided, that as a condition to Parent’s and Paying Agent’s obligation to make such payments, the Securityholder Representative shall first deliver to Parent an updated Allocation Schedule setting forth the portion of such Expense Fund distribution payable to each Company Indemnitor. For tax purposes, the Expense Fund shall be treated as having been received and voluntarily set aside by the Company Indemnitors at the time of Closing. Any tax required to be withheld with respect to the deemed payment to a Company Indemnitor of its portion of the provisions Expense Fund shall reduce the amount of cash to such Person at Closing in respect of Company Capital Stock and shall not reduce the Expense Fund.
(d) A decision, act, consent or instruction of the Securityholder Representative, including but not limited to an amendment, of this Agreement or its duties hereunderpursuant to Section 9.7 hereof, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion authority granted to the Securityholder Representative hereunder shall constitute a decision of the Company Indemnitors and shall be final, binding and conclusive upon the Company Indemnitors. Parent may rely upon any such counseldecision, act, consent or instruction of the Securityholder Representative as being the decision, act, consent or instruction of the Company Indemnitors. Parent is hereby relieved from any Liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Securityholder Representative.
Appears in 1 contract
Samples: Merger Agreement (PagerDuty, Inc.)
Securityholder Representative. (a) Each Securityholder hereby Pursuant to the adoption and approval of this Agreement members of the Company representing a “Unitholder Super Majority” and a “Preferred Unitholder Majority” (as each such term is defined in the LLC Agreement), each Holder irrevocably appoints ACAS Honeyrep, LLC as the “Securityholder Representative” ”. In accordance with and subject to the terms of the Honeyrep, LLC Operating Agreement attached to this Agreement as Exhibit M (the “SR Operating Agreement”), the Securityholder Representative is and will be such Holders’ representative, attorney-in-fact and agent, with full substitution to act as in the agent name, place and stead of such Holder, solely with respect to this Agreement and the Escrow Agreement with the power, authority and discretion to act, pursuant to the terms of the Securityholders SR Operating Agreement, on behalf of all Holders in any amendment of or litigation or arbitration involving this Agreement and the Escrow Agreement and to do or refrain from doing all such further acts and things, and, pursuant to the terms of the SR Operating Agreement, to execute all such documents, as such Securityholder Representative shall, pursuant to the terms of the SR Operating Agreement, deem necessary or advisable in conjunction with any of the full power transactions contemplated by the Merger, this Agreement and the Escrow Agreement, including the power:
(i) to resolve take all questionsaction necessary or advisable in connection with the waiver of any condition to the obligations of the Holders to consummate the transactions contemplated by this Agreement and the Escrow Agreement;
(ii) to negotiate, disputesexecute and deliver all ancillary agreements, conflicts statements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and controversies concerning Losses as other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Escrow Agreement);
(iii) to give and receive all notices and communications to be given or received under this Agreement and to receive service of process in connection with the any claims under this Agreement and the Escrow Agreement;
(iv) to receive and make payments under this Agreement or the Escrow Agreement to the Holders to the extent not otherwise provided in this Article 11Agreement or the Escrow Agreement; and
(v) to take all actions which under this Agreement and the Escrow Agreement may be taken by the Holders and to do or refrain from doing any further act or deed on behalf of the Holder which Securityholder Representative deems necessary or advisable in its good faith discretion relating to the subject matter of this Agreement and the Escrow Agreement as fully and completely as such Holder could do if personally present.
(b) Subject to the terms of the SR Operating Agreement, the Securityholder Representative may not amend this Agreement or any other Transaction Agreement (i) to create any personal liability of any Holder hereunder or thereunder, (ii) to execute and enter into, on behalf increase the maximum aggregate indemnification obligation of the SecurityholdersHolders beyond their respective Percentage Shares of the amount of the Escrow Amount, the Deferred Premium Payments and to take all actions thereunder for and on their behalfthe Earn-Out Payments, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided hereinif any, or (iii) take any action pursuant hereto that could disproportionately affect any Holder or group of Holders without the prior consent of such affected Holder or group of Holders. The operation of the Securityholder Representative will be governed by the SR Operating Agreement.
(c) If Honeyrep, LLC resigns or becomes unable to negotiate and/or settle all claims under this Agreementserve as Securityholder Representative, (iv) to receive from the Buyer monies payable to the Securityholders such other Person or Persons as may be designated in accordance with the provisions terms of the SR Operating Agreement shall succeed as Securityholder Representative.
(d) The parties acknowledge that the Securityholder Representative’s obligations under this AgreementSection 10.4 are solely as a representative of the Holders and that the Securityholder Representative shall have no personal responsibility for any expenses incurred by it in such capacity and that all payments to Buyer as a result of any indemnification obligations shall be made solely from, and to the extent of, the Indemnification Sources.
(ve) Out-of-pocket expenses incurred by, or reasonably anticipated to otherwise take such actions (or refrain from taking actions) be incurred by, the Securityholder Representative for attorneys’ and execute such documents (including any modificationsaccountants’ fees and other costs may, waivers or amendments thereto) on at the Securityholders’ behalf written direction of the Securityholder Representative, be withheld, and paid to the Securityholder Representative, in connection with this Agreement as the distribution to Holders, Performance Unitholders or EPP Unitholders of any Deferred Premium Payment or Earn-Out Payment or the release of any portion of the Escrow Fund to Holders, Performance Unitholders or EPP Unitholders in accordance with the Escrow Agreement. In addition, in the event the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust determines that the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions Representative Defense Fund is not adequately funded in light of the Securityholder Representative under this Agreement. The Buyer is entitled Representative’s election to rely on assume the acts and agreements defense of any Third-Party Claim(s) or potential future Third-Party Claims that have not been asserted, the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and deduct from any distribution to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as Holders, Performance Unitholders or EPP Unitholders of any Deferred Premium Payment or Earn-Out Payment or the release of any portion of the Escrow Fund to Holders, Performance Unitholders or EPP Unitholders in accordance with the Escrow Agreement, amounts the Securityholder Representative deems to be reasonably and in good faith determines are necessary or appropriate in connection with its performance of its obligations under this Agreement, and all to cover expected costs related to such fees and expenses incurred by Third-Party Claim(s). In the event the Securityholder Representative shall be borne pro rata by elects to withhold amounts from any distribution to Holders, Performance Unitholders or EPP Unitholders of any Deferred Premium Payment or Earn-Out Payment or the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements release of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilitiesthe Escrow Fund to Holders, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses Performance Unitholders or disbursements resulting solely from EPP Unitholders in accordance with the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder Escrow Agreement in accordance with an accounting of all expenses paid. In addition to any other rights or remedies (including this Section 11.02(d)10.4(e), the Securityholder Representative may, upon prior shall deliver a form of joint written direction to Buyer in advance of such distribution or contemporaneous written notice, offset any release stating the amounts determined by it to be owed withheld and the reasons therefor, and Buyer agrees to execute such joint written direction to the Escrow Agent or Paying Agent, as applicable. Upon the resolution of all Third-Party Claims, any remaining amounts in the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer Defense Fund shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith distributed in accordance with the opinion terms of such counselthe SR Operating Agreement.
Appears in 1 contract
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS as Pei-Xxxxx Xxxx (the “Securityholder Representative” to act ”) shall serve as the agent representative of the Securityholders with for purposes of this Agreement and the full power (i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in Escrow Agreement. Shareholder approval of this Article 11, (ii) to execute and enter into, on behalf Agreement shall include confirmation of the Securityholders, and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions authority of the Securityholder Representative and the payment obligations of each Securityholder under this AgreementSection 1.11(e). The Buyer is entitled to ESI, Merger Corp. and New Wave may rely on upon the acts and agreements of the Securityholder Representative as for all purposes permitted hereunder and under the acts and agreements of the SecurityholdersEscrow Agreement. The ESI shall provide Securityholder Representative shall be entitled with reasonable access to retain counsel and to incur such reasonable expenses (including court costs information about the Surviving Corporation and reasonable attorneyassistance from the Surviving Corporation’s fees officers and expenses) as employees for purposes of performing the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation PercentagesRepresentative’s duties hereunder.
(b) The Securityholder Representative shall act as each Securityholder’s true and lawful attorney and agent to do any and all acts and things described in this Section 1.11(b). The Securityholder Representative shall have full power of substitution to act in the name, place and stead of the Securityholders hereby agree severally in all matters in connection with this Agreement and the Escrow Agreement, including executing and delivering the Escrow Agreement on behalf of the Securityholders and creating certain obligations of the Securityholders thereunder. The Securityholder Representative’s power shall include the following powers, without limitation: the power to indemnify act for the Securityholders with regard to the indemnification obligations and Net Working Capital Adjustment hereunder; the power to compromise any claim on behalf of the Securityholders and to transact matters of litigation or arbitration in connection with this Agreement or the Escrow Agreement; the power to solicit, negotiate and approve offers to sell the Surviving Corporation’s interest in Lumitek for the account of the Securityholders pursuant to Section 4.1.5 and to take all further actions described in Section 4.1.5; the power to do or refrain from doing all such further acts and things on behalf of the Securityholders that the Securityholder Representative (deems necessary or appropriate in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, againsthis sole discretion, and to hold the Securityholder Representative (in its capacity execute all such documents as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses deem necessary or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or appropriate in connection herewith therewith; and the power to receive service of process in such capacity; provided, that none of connection with any claims hereunder. Notwithstanding the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d))foregoing, the Securityholder Representative may, upon prior may not compromise or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative settle a claim against the Reserve Account and against any amounts Securityholders pursuant to be paid to Section 7.2 without the prior written approval of an independent representative of the Securityholders hereunder. The agreements in this Section 11.04 (the “Independent Overseer”), who shall survive termination of this Agreementinitially be Bruce Lan.
(c) The Buyer shall be fully protected in dealing with the Any Securityholder Representative under this Agreement and or Independent Overseer may rely be removed from such position upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer delivery to the Securityholder Representative or Independent Overseer, as applicable, of written instructions from a majority in interest of the Securityholders (such majority in interest to the extent authorized under this Agreement shall be considered a payment by the Buyer to determined in accordance with the Securityholders’ respective Percentage Interests). The appointment of If the Securityholder Representative or Independent Overseer, as applicable, is coupled with an interest removed, resigns, dies or otherwise becomes incapacitated and unable to serve as Securityholder Representative or Independent Overseer, as applicable, such person’s successor shall be irrevocable appointed by any Securityholder a majority in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act interest of the principal pursuant to any applicable LawSecurityholders.
(d) The Securityholder Representative may resign from its capacity or Independent Overseer, as Securityholder Representative at any time by written notice delivered to applicable, shall act for the Buyer and the Securityholders. If there is a vacancy at any time Securityholders hereunder in the position of Securityholder Representative for any reason, manner such vacancy shall person believes to be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all best interest of the Securityholders and consistent with his obligations hereunder, but shall constitute have no duties or obligations except as specifically set forth herein. The Securityholder Representative or Independent Overseer, as applicable, shall receive no compensation for services rendered to the authorization Securityholders in such capacity. In acting as representative of the Securityholders, the Securityholder Representative or Independent Overseer, as applicable, may rely upon, and shall be protected in acting or refraining from acting upon, an opinion or advice of counsel, certificate of auditors or other certificate, statement, instrument, opinion, report, notice, request, consent, order, arbitrator’s award, appraisal, bond or other paper or documents reasonably believed by him to be genuine and to have been signed or presented by the proper party or parties. Neither the Securityholder Representative nor the Independent Overseer shall be personally liable to the Securityholders for any act done or omitted hereunder in such capacity except in the event of intentional wrongdoing for personal benefit. The Securityholder Representative and Independent Overseer may consult with counsel and any advice of such counsel shall be full and complete authorization and protection in respect to any action taken or suffered or omitted by him in such capacity in good faith and in accordance with such opinion of counsel. The Securityholder Representative may perform his duties as Securityholder Representative either directly or by or through his agents or attorneys, and the Securityholder Representative shall not be responsible to the Securityholders for any misconduct or negligence on the part of any agent or attorney appointed with due care by him hereunder.
(e) The Securityholder Representative Securityholders shall not be liable to the Buyer or the Securityholders in its capacity as indemnify, hold harmless and defend the Securityholder Representative for and the Independent Overseer from and against, and reimburse such person with respect to, any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted and all Damages reasonably incurred by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice or Independent Overseer, as applicable, as a result of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it such person acting in good faith in accordance such capacity under this Agreement or in connection with such person’s duties hereunder. Subject to prior written approval by the Independent Overseer, which approval shall not be unreasonably withheld, the Securityholder Representative shall be entitled to reimbursement from the Securityholder Expense Escrow Amount of any reasonable out-of-pocket costs incurred by the Securityholder Representative on behalf of the Securityholders pursuant to the authority granted to the Securityholder Representative hereunder, including engaging experts and professional service providers, in each case without having to seek or obtain the consent of any Person under any circumstance (except as set forth in (b) above); provided that the right to reimbursement shall not exceed the amount then available in the Securityholder Expense Escrow Amount and provided further that $100,000 of the Securityholder Expense Escrow Amount shall be reserved to reimburse for costs incurred in connection with the opinion Sale or a Trust Transfer until such time as a Sale or Trust Transfer has occurred and the Securityholder Representative has been reimbursed in full with respect to such transaction. Any written reimbursement requests delivered to ESI and the Escrow Agent by the Securityholder Representative shall be paid to Securityholder Representative concurrently with any release to the Securityholders pursuant to the Escrow Agreement.
(f) The Securityholder Representative shall use good faith efforts to notify Xxxxxxx Xxxxxxx, the designee of the New Wave Employee Stock Ownership Plan (the “ESOP”), of any notices received by ESI and/or delivered by the Securityholder Representative, and advise such counseldesignee on a regular basis of any actions that may materially affect the interests of the ESOP.
Appears in 1 contract
Samples: Merger Agreement (Electro Scientific Industries Inc)
Securityholder Representative. (a) Each For purposes of this Agreement and the Escrow Agreement, each Company Securityholder hereby appoints ACAS as shall, without any further action on the “Securityholder Representative” to act as the agent part of any such Company Securityholder, be deemed (by virtue of the Securityholders with adoption and approval of this Agreement and approval of the full power (iIntegrated Mergers) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the Securityholders, and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable have consented to the Securityholders in accordance with the provisions appointment of this AgreementAHR Holdings, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement LLC as the Securityholder Representative, as the attorney‑in‑fact for and on behalf of each such Company Securityholder, and the taking by the Securityholder Representative of any and all actions and the making of any decisions required or permitted to be taken by them under or contemplated by this Agreement and the other Transaction Documents, including the exercise of the power to (i) execute this Agreement, the Escrow Agreement, the other Transaction Documents and other agreements, documents and certificates pursuant to such Contracts, including all amendments to such Contracts, and take all actions required or permitted to be taken under such Contracts (provided, that the Securityholder Representative, on behalf of itself and all other Company Securityholders, may not enter into any amendment that has a disproportionate adverse impact on any Company Securityholder compared to any other Company Securityholder), (ii) authorize delivery to Parent of all or any portion of the Escrow Fund, in its sole discretionsatisfaction of indemnification or other claims contemplated by this Agreement or as provided in the Escrow Agreement, deems proper(iii) agree to, negotiate, enter into settlements and compromises of and comply with Orders with respect to such indemnification or other claims, (iv) resolve any indemnification or other claims, (v) receive and forward notices and communications pursuant to this Agreement, the Escrow Agreement and the other Transaction Documents, and (vi) to pay, release and/or distribute any or take all of actions necessary in the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions judgment of the Securityholder Representative under for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, the Escrow Agreement, the other Transaction Documents and any other agreements, documents and certificates thereto. The Buyer is entitled to rely on the acts and agreements of Company Securityholders shall cooperate with the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as any accountants, attorneys or other agents whom the Securityholder Representative deems may retain to be reasonably necessary or appropriate assist in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by carrying out the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders Representative’s duties hereunder. AHR Holdings, LLC hereby agree severally to indemnify the Securityholder Representative (in accepts its capacity appointment as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from is authorized by each Company Securityholder by virtue of the adoption and approval of this Agreement and approval of the Integrated Mergers to act on its behalf as required hereunder under the Escrow Agreement and the other Transaction Documents. At any time during the term of the Escrow Agreement, the Company Securityholders entitled to time submit invoices a majority in interest of the Escrow Fund can appoint a new Securityholder Representative by written consent by sending notice and a copy of the duly executed written consent appointing such new Securityholder Representative to Parent and the Escrow Agent. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Parent and the Escrow Agent.
(b) The Parties acknowledge that the Securityholder Representative’s obligations under this Article VIII are solely as a representative of the Company Securityholders with respect to the Securityholders covering such expenses and/or liabilities and, upon obligations to indemnify the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), Parent Indemnified Persons under this Article VIII and that the Securityholder Representative may, upon prior or contemporaneous written notice, offset shall have no personal responsibility for any amounts determined expenses incurred by it in such capacity and that all payments to the Parent Indemnified Persons as a result of such indemnification obligations shall be owed to made solely in accordance with this Article VIII.
(c) All decisions, actions, consents and instructions of the Securityholder Representative against shall be final and binding upon all the Reserve Account Company Securityholders and against no Company Securityholder shall have any amounts right to be paid object, dissent, protest or otherwise contest the same, except for fraud, bad faith or willful misconduct. Neither the Securityholder Representative nor any agent employed by the Securityholder Representative shall incur any Liability to any Company Securityholder relating to the Securityholders hereunderperformance of its duties hereunder except for actions or omissions constituting fraud, bad faith or willful misconduct. The agreements Securityholder Representative shall not have by reason of this Agreement a fiduciary relationship in this Section 11.04 respect of any Company Securityholder, except in respect of amounts actually received on behalf of such Company Securityholder. The Securityholder Representative, in its capacity as such, shall survive termination not be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement.
(cd) The Buyer provisions of this Section 8.11 shall in no way impose any obligations on Parent, Merger Sub, Successor Sub or the Surviving Entity. In particular, notwithstanding any notice received by Parent, Merger Sub, Successor Sub, or the Surviving Entity to the contrary, Parent, Merger Sub, Successor Sub and the Surviving Entity (i) shall be fully protected in dealing relying upon and shall be entitled to rely upon, shall have no Liability to the Company Securityholders with respect to, actions, omissions to act, decisions and determinations of the Securityholder Representative, (ii) shall be entitled to assume that all actions, omissions to act, decisions and determinations of the Securityholder Representative are fully authorized by all of the Company Securityholders and (iii) shall be entitled to deal exclusively with the Securityholder Representative under 65 on all matters relating to this Agreement, the Escrow Agreement and may rely upon the authority other Transaction Documents. Each Letter of Transmittal will contain a provision authorizing the Securityholder Representative to act on behalf of the SecurityholdersCompany Securityholder signing such Letter of Transmittal for all matters arising under this Agreement, the Escrow Agreement and the other Transaction Documents and will contain the provisions set forth in this Section 8.11. Any payment All deliveries made by Parent, Merger Sub, Successor Sub or the Buyer Surviving Entity to the Securityholder Representative to or at the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment direction of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act made on behalf of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Company Securityholders and shall constitute the authorization full performance of the Securityholdersdelivery obligations of Parent, Merger Sub, Successor Sub or Surviving Entity hereunder under the Escrow Agreement or the other Transaction Documents. None of Parent, Merger Sub, Successor Sub or the Surviving Entity shall be liable for allocation of particular deliveries and payments of such amounts at the direction of the Securityholder Representative.
(e) The Representative Expense Fund will be delivered at the Closing to the Securityholder Representative shall not to be liable to the Buyer or the Securityholders held in its capacity trust as a source of reimbursement as provided in this Agreement and for costs and out‑of‑pocket expenses (including Taxes and costs of professional advisers) incurred by the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing its obligations in connection with this Agreement except in and the case Escrow Agreement, with any balance of gross negligence or willful misconduct by it. The Securityholder the Representative may seek the advice of reputable legal counsel in the event of any dispute or question as Expense Fund not incurred for such purposes, to be distributed to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Company Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion of such counseltheir respective Pro Rata Shares.
Appears in 1 contract
Securityholder Representative. For purposes of this Agreement, the Escrowed Stockholders, without any further action on the part of any such Escrowed Stockholder, shall be deemed to have consented to the appointment of Hope Xxxxxxx xx the representative of such Escrowed Stockholders (a) Each the "Securityholder hereby appoints ACAS Representative"), as the “attorney-in-fact for and on behalf of each such Escrowed Stockholder, and the taking by the Securityholder Representative” Representative of any and all actions and the making of any decisions required or permitted to act as be taken by her under this Agreement, including the agent exercise of the Securityholders with the full power to (i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in execute this Article 11Agreement, (ii) to execute and enter intovote Parent Shares held in the Escrow Fund, on behalf of the Securityholders, and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) only in connection accordance with Losses as provided herein, each Escrowed Stockholder's written instructions; (iii) authorize delivery to negotiate and/or settle all claims under this AgreementParent of the Escrow Amount, or any portion thereof, in satisfaction of Indemnification Claims, (iv) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreementsuch Indemnification Claims, (v) resolve any Indemnification Claims and (vi) take all actions necessary in the judgment of the Securityholder Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement. Accordingly, the Securityholder Representative has unlimited authority and power to otherwise take such act on behalf of each Escrowed Stockholder with respect to this Agreement and the disposition, settlement or other handling of all Indemnification Claims, rights or obligations arising from and taken pursuant to this Agreement. The Escrowed Stockholders will be bound by all actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on taken by the Securityholders’ behalf Securityholder Representative in connection with this Agreement as the Securityholder RepresentativeAgreement, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is Parent shall be entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct decision of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall will incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted taken or suffered by it her in good faith in accordance with the opinion of such counsel.reliance upon any notice, direction, instruction, consent, statement or other document believed
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Peoplesoft Inc)
Securityholder Representative. (a) Each Immediately upon receipt of the Required Stockholder Approvals, each Company Securityholder hereby appoints ACAS shall be deemed to have consented to the appointment of United States Trust Company, N.A., as Trustee of the Memorial Drive Trust, as such Company Securityholder’s representative and attorney-in-fact (the “Securityholder Representative” ”), with full power of substitution, to act as the agent on behalf of the Company Securityholders with to the full power extent and in the manner set forth in this Agreement and the Escrow Agreement. The powers and authority of the Securityholder Representative shall include:
(i) The power and authority to resolve all questions, disputes, conflicts execute as Securityholder Representative this Agreement and controversies concerning Losses as provided in this Article 11, the Escrow Agreement;
(ii) The power and authority to execute give or receive any notice or instruction permitted or required under this Agreement or the Escrow Agreement, to be given or received by any Company Securityholder, and each of them (other than notice for service of process relating to any Legal Proceeding, which notice must be given to each Company Securityholder individually, as applicable), and to take any and all action for and on behalf of the Company Securityholders, and each of them, under this Agreement or the Escrow Agreement;
(iii) The power and authority to contest, negotiate, defend, compromise or settle any actual or threatened Legal Proceedings for which a Parent Indemnified Party may be entitled to indemnification through counsel selected by the Securityholder Representative and solely at the cost, risk and expense of the Company Securityholders, authorize payment to any Parent Indemnified Party of any of the Escrow Funds, or any portion thereof, in satisfaction of any Parent Claims, agree to, negotiate, enter intointo settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such Parent Claims, resolve any Parent Claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated hereby by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Securityholder or necessary in the judgment of the Securityholder Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement and the Escrow Agreement;
(iv) The power and authority to consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company Securityholders;
(v) The power and authority to review, negotiate and agree to and authorize any payments from the Escrow Funds in satisfaction of any payment obligation, in each case, on behalf of the Company Securityholders, as contemplated in the Escrow Agreement;
(vi) The power and authority to take all actions thereunder for waive any terms and on their behalf, including but not limited conditions of this Agreement or the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable Escrow Agreement providing rights or benefits to the Company Securityholders (other than the payment to Company Securityholders of the Per Share Merger Consideration, the Option Consideration and Warrant Consideration in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) terms hereof and execute such documents (including any modifications, waivers or amendments thereto) on in the Securityholders’ behalf in connection with this Agreement as the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, manner provided herein); and
(vii) The power and authority to adjust take any actions in regard to such other matters as are reasonably necessary for the Securityholder Allocation Percentage consummation of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants transactions contemplated hereby or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate believes are in connection with its performance the best interests of its obligations under this Agreementthe Company Securityholders.
(b) All decisions, actions, consents and all such fees and expenses incurred instructions by the Securityholder Representative shall be borne pro rata by binding upon all of the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, againstCompany Securityholders, and to hold the no Company Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from object to, dissent from, protest or otherwise contest the Reserve Account orsame. Parent and Merger Sub shall be entitled to rely on any decision, after the exhaustion thereofaction, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses consent or disbursements instruction of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to as being the decision, action, consent or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none instruction of the Securityholders shall be liable for Company Securityholders, and Parent and Merger Sub are hereby relieved from any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition liability to any other rights Person for acts done by them in accordance with any such decision, act, consent or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreementinstruction.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement may resign at any time, and may rely upon be removed for any reason or no reason by the authority vote or written consent of Company Securityholders holding a majority interest (determined with respect to each Company Securityholder’s Proportionate Percentage) in the Escrow Fund at the time of such vote or written consent (the “Majority Holders”). In the event of the death, incapacity, resignation or removal of the Securityholder Representative, a new Securityholder Representative to act on behalf shall be appointed by the vote or written consent of the SecurityholdersMajority Holders. Any payment by Notice of such vote or a copy of the Buyer written consent appointing such new Securityholder Representative shall be sent to Parent and, after the Effective Time, to the Surviving Corporation, such appointment to be effective upon the later of the date indicated in such consent or the date such consent is received by Parent and, after the Effective Time, the Surviving Corporation; provided that until such notice is received, Parent, Merger Sub and the Surviving Corporation, as applicable, shall be entitled to rely on the decisions, actions, consents and instructions of the prior Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder as described in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable LawSection 1.12(b).
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer Company Securityholders for actions taken pursuant to this Agreement or the Escrow Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted willful misconduct or fraud. Except in cases where a court of competent jurisdiction has made such a finding, the Company Securityholders shall severally (in its capacity as accordance with their respective Proportionate Percentages) indemnify and hold harmless the Securityholder Representative for from and against any liability and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing and in connection with its activities as Securityholder Representative under this Agreement, the Escrow Agreement except in the case of gross negligence or willful misconduct by itotherwise. The Securityholder Representative may seek engage attorneys, accountants and other professionals and experts. The Securityholder Representative may rely conclusively upon information, reports, statements and opinions prepared or presented by such professionals, and any action taken by the advice of reputable legal counsel Securityholder Representative based on such reliance shall be deemed conclusively to have been taken in good faith and in the event exercise of reasonable judgment.
(e) The Securityholder Representative will serve without compensation but will be reimbursed on a current basis from the Escrow Funds for any expenses incurred or anticipated to be incurred without gross negligence or bad faith on the part of the Securityholder Representative and arising out of or in connection with the acceptance or administration of the Securityholder Representative’s duties hereunder, including the reasonable fees and expenses of any dispute or question as legal counsel, accountants and other professionals and experts retained by the Securityholder Representative, and will also be entitled to receive from the Escrow Funds amounts payable to the construction Securityholder Representative in accordance with subsection (d) above. In addition, and without limitation of the foregoing, each Company Securityholder agrees that such Company Securityholders’ Proportionate Percentage of such reasonable expenses (and any amounts payable to the Securityholder Representative in accordance with Subsection (d) above) may be deducted by the Securityholder Representative from amounts distributed to the Company Securityholders from the Escrow Funds prior to delivery of such Escrow Funds to the Company Securityholders.
(f) The Required Stockholder Approvals shall also be deemed to constitute approval of all arrangements relating to the transactions contemplated hereby and to the provisions hereof binding upon the Company Securityholders, including Article VII and the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion of such counselEscrow Agreement.
Appears in 1 contract
Samples: Merger Agreement (Green Mountain Coffee Roasters Inc)
Securityholder Representative. By virtue of accepting the benefits hereof (including a share of the Merger Consideration, if and to the extent payable hereunder), approval of the Merger (if applicable) as well as through the execution and delivery of the Support Agreement in the case of the Stockholders, and the adoption of this Agreement and approval of the Merger by the Stockholders, and without any further action of any of the Indemnifying Securityholders or the Company, each Indemnifying Securityholder will, as a specific term of the Merger, be deemed to have agreed that:
(a) Each The Securityholder hereby appoints ACAS Representative is irrevocably constituted and appointed as the “Securityholder Representative” to act as , exclusive agent, proxy, and true and lawful attorney in fact (coupled with an interest) for all Indemnifying Securityholders for all purposes under this Agreement and the agent of the Securityholders with Escrow Agreement, including the full power and authority on each such Person’s behalf: (i) to resolve all questions, disputes, conflicts consummate the transactions contemplated under this Agreement and controversies concerning Losses as provided in this Article 11, the other Transaction Documents; (ii) to negotiate claims and disputes arising under, or relating to, this Agreement and the other Transaction Documents (including, for the avoidance of doubt, the adjustment of Closing Proceeds contemplated by Section 3.3 and claims for indemnification under Article 8); (iii) to take action to cause to be disbursed to any Indemnifying Securityholder any funds to be disbursed to such Indemnifying Securityholder under this Agreement (including, for the avoidance of doubt, any portion of the Merger Consideration) or otherwise; (iv) to direct payment of any amounts to be received by any Indemnifying Securityholder pursuant to this Agreement (including, for the avoidance of doubt, any portion of the Merger Consideration) or to satisfy (on behalf of the Indemnifying Securityholders) any and all obligations or Liabilities of any Indemnifying Securityholder; (v) to execute and enter intodeliver any amendment or waiver to this Agreement and the other Transaction Documents (without the prior approval of any Indemnifying Securityholder); and (vi) to take or refrain from taking the foregoing and all other actions to be taken by or on behalf of any Indemnifying Securityholder in connection with this Agreement and the other Transaction Documents or otherwise relating to the subject matter of this Agreement, as determined by the Securityholder Representative. The powers, immunities and rights to indemnification granted to the Securityholder Representative Group hereunder: (i) are coupled with an interest, are therefore irrevocable without the consent of the Securityholder Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of each Indemnifying Securityholder, and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Indemnifying Securityholder of the whole or any fraction of his, her or its interest in the Escrow Funds. All decisions and actions by the Securityholder Representative including under this Agreement, the Escrow Agreement or the Securityholder Representative Engagement Agreement shall be binding upon each Indemnifying Securityholder and such Indemnifying Securityholder’s successors as if expressly confirmed and ratified in writing by such Indemnifying Securityholder, and no Indemnifying Securityholder shall have the right to object, dissent, protest or otherwise contest the same. Parent, the Surviving Corporation and their Affiliates may fully rely upon any such decision, act, consent or instruction of the Securityholder Representative as being the decision, act, consent or instruction of the Indemnifying Securityholder. Parent, the Surviving Corporation and their Affiliates is hereby relieved from any Liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Securityholder Representative. No Indemnified Person shall be liable to any Indemnifying Securityholder for any actions taken or omitted by them in reliance upon any instructions, notice, or other instruments delivered by the Securityholder Representative. All defenses which may be available to any Indemnifying Securityholder to contest, negate or disaffirm the action of the Securityholder Representative taken in good faith under this Agreement, the Escrow Agreement or the Securityholder Representative Engagement Agreement are waived. Notwithstanding anything herein to the contrary, the Securityholder Representative shall have no duties or obligations, except those expressly set forth herein, in the Escrow Agreement and in the Securityholder Representative Engagement Agreement, and for purposes of clarity, there are no duties or obligations of the Securityholder Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Securityholder Representative may resign at any time, and may be removed or replaced by the vote of Indemnifying Securityholders with a majority of the Pro Rata Portion. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholder Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement or the Escrow Agreement;
(b) The Securityholder Representative Group shall be indemnified, defended, held harmless and reimbursed by each Indemnifying Securityholder severally (based on each Indemnifying Securityholder’s Pro Rata Portion), and not jointly, against all Liabilities, losses, claims, damages, costs, expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement (collectively, the “Securityholder Representative Expenses”) incurred without gross negligence or willful misconduct on the part of the Securityholder Representative and arising out of or in connection with the acceptance or administration of its duties hereunder, under the Escrow Agreement or under the Securityholder Representative Engagement Agreement, including any amounts paid or incurred by the Securityholder Representative in connection with any claim, action, suit or proceeding to which the Securityholder Representative is made a party by reason of the fact that such Person is or was acting as the Securityholder Representative pursuant to the terms of this Agreement (including, for the avoidance of doubt, the satisfaction of payment obligations on behalf of the Indemnifying Securityholders). Any and all amounts paid or incurred by the Securityholder Representative in connection with any claim, action, suit or proceeding to which the Securityholder Representative or such other Person is made a party or otherwise by reason of the fact that it is or was acting as the Securityholder Representative pursuant to the terms of this Agreement, the Escrow Agreement or the Securityholder Representative Engagement Agreement are on behalf of the Indemnifying Securityholders (and not, for the avoidance of doubt, on behalf of the Securityholders, and Securityholder Representative in any other capacity);
(c) Certain Indemnifying Securityholders have entered into an engagement agreement (the “Securityholder Representative Engagement Agreement”) with the Securityholder Representative to take all actions thereunder for and on their behalf, including but not limited provide direction to the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) Securityholder Representative in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims its services under this Agreement, the Escrow Agreement and the Securityholder Representative Engagement Agreement (ivsuch Indemnifying Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholder Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholder Representative Group”) shall incur any Liability or otherwise have liability to any Indemnifying Securityholder for any action or failure to act in connection with the acceptance or administration of the Securityholder Representative’s responsibilities hereunder, under the Escrow Agreement or under the Securityholder Representative Engagement Agreement, including any by virtue of the failure or refusal of the Securityholder Representative for any reason to consummate the transactions contemplated hereby or relating to the performance of their duties hereunder, unless and only to the extent such action or failure to act constitutes gross negligence or willful misconduct. Without limiting the generality of the foregoing, the Securityholder Representative Group shall have no Liability in respect of any action, claim or proceeding brought against any such Person by any Indemnifying Securityholder, regardless of the legal theory under which such Liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at Law or in equity, or otherwise, if any such Person took or omitted taking any action in good faith;
(d) Securityholder Representative Expenses may be recovered first, from the Expense Fund, second, from any distribution of the Escrow Funds otherwise distributable to the Indemnifying Securityholders at the time of distribution, and third, directly from each Indemnifying Securityholder severally (based on such Indemnifying Securityholder’s Pro Rata Portion), and not jointly;
(e) The Representative Holdback Amount shall be held by the Securityholder Representative in a segregated client account and shall be used (i) for the purposes of paying directly or reimbursing the Securityholder Representative for any Securityholder Representative Expenses incurred pursuant to this Agreement, the Escrow Agreement or the Securityholder Representative Engagement Agreement, or (ii) as otherwise determined by the Advisory Group (the “Expense Fund”). The Securityholder 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 other than as a result of its gross negligence or willful misconduct. The Securityholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund and has no tax reporting or income distribution obligations. The Indemnifying Securityholders will not receive any interest on the Expense Fund and assign to the Securityholder Representative any such interest. Subject to Advisory Group approval, the Securityholder Representative may contribute funds to the Expense Fund from any consideration otherwise distributable to the Indemnifying Securityholders. Upon full reimbursement of all Securityholder Representative Expenses or when reasonably determined by the Securityholder Representative that the Expense Fund is no longer required to be withheld, the Securityholder Representative shall distribute the remaining Expense Fund (if any) to receive from the Buyer monies payable Paying Agent and/or the Company, as applicable, for further distribution to the Indemnifying Securityholders in accordance with their respective Pro Rata Portions; and
(f) The Indemnifying Securityholders acknowledge that the provisions Securityholder 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, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modificationsthe Escrow Agreement, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as the Securityholder RepresentativeRepresentative Engagement Agreement or the transactions contemplated hereby or thereby. Furthermore, the Securityholder Representative shall not be required to take any action unless the Securityholder Representative has been provided with funds, security or indemnities which, in its sole discretiondetermination, deems proper, (vi) are sufficient to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of protect the Securityholder Representative under this Agreement. The Buyer is entitled to rely on against the acts costs, expenses and agreements of liabilities which may be incurred by the Securityholder Representative as the acts and agreements of the Securityholdersin performing such actions. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses to: (including court costs and reasonable attorney’s fees and expensesi) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by Spreadsheet, (ii) rely upon any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Indemnifying Securityholder or other party. Notwithstanding anything to the contrary herein and without limiting the generality of other protections in good faith favor of the Securityholder Representative Group hereunder, the Securityholder Representative and its Affiliates shall not be liable for any Loss or otherwise to any Indemnifying Securityholder for any action taken or not taken by the Securityholder Representative or for any mistake act or omission taken or not taken in fact reliance upon the actions taken or lawnot taken or decisions, communications or for anything which it may do writings made, given or refrain from doing in connection with this Agreement except in the case of gross negligence executed by Parent or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer Merger Sub or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion of such counselSurviving Corporation.
Appears in 1 contract
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS as the “Securityholder Representative” to act as the agent of the Securityholders with the full power (i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the Securityholders, and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions For purposes of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including the Securityholders without any modifications, waivers or amendments thereto) further action on the Securityholders’ behalf in connection with this Agreement as part of any such parties, shall be deemed to have consented to the appointment of the Securityholder Representative, in its sole discretionas the attorney-in-fact for and on behalf of each such Securityholder, deems proper, (vi) to pay, release and/or distribute any or all of and the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust taking by the Securityholder Allocation Percentage Representative of any and all actions and the Reserve Account otherwise payable making of any decisions required or permitted to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of be taken by the Securityholder Representative under this Agreement, including the exercise of the power to (a) prepare, execute and deliver any document, certificate or other instrument required to be delivered by or on behalf of the Securityholders pursuant to this Agreement or the Escrow Agreements and any amendments hereto and thereto, (b) authorize delivery to Acquiror of the Escrow Amount and the Working Capital Escrow Amount, or any portion thereof, in satisfaction of Indemnification Claims and payment of any Adjustment Amount due, respectively, (c) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to Indemnification Claims and disputes relating to the Earn-Out, and pursue remedies and Actions in connection with any alleged breach of this Agreement, (d) resolve any Indemnification Claims, (e) make and settle determinations and calculations with respect to distributions and allocations of the Total Merger Consideration and any portion thereof, including, the Working Capital Adjustment, the Earn-Out Amounts, the Escrow Amount, the Working Capital Adjustment Amount and the Securityholder Representative Expense Amount, (f) give and receive notices and communications hereunder, and (g) take all actions necessary in the judgment of the Securityholder Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement and the Escrow Agreements or that are specifically mandated by the terms of this Agreement or the Securityholder Representative Engagement Agreement. The Buyer is Accordingly, Securityholder Representative has unlimited authority and power to act on behalf of each Securityholder with respect to this Agreement and the Escrow Agreements and the disposition, settlement or other handling of all Indemnification Claims, rights or obligations arising from and taken pursuant to this Agreement or the Escrow Agreements. Securityholders will be bound by all actions taken by Securityholder Representative in connection with this Agreement or the Escrow Agreements, and Acquiror and the Surviving Corporation shall be entitled to rely on any action or decision of Securityholder Representative. Securityholder Representative will incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other document believed by it to be genuine and to have been signed by the acts proper person (and agreements shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except its own willful misconduct, bad faith or gross negligence. In all questions arising under this Agreement or the Escrow Agreements, Securityholder Representative may rely on the advice of counsel, and Securityholder Representative will not be liable to the Securityholders for anything done, omitted or suffered in good faith by Securityholder Representative based on such advice. The Securityholders shall, severally (on the basis of each Securityholder’s Pro-Rata Portion at the time the claim shall be made) and not jointly, indemnify, defend and hold harmless the Securityholder Representative as the acts and agreements its successors and assigns from and against any and all suits, actions, causes of the Securityholders. The Securityholder Representative shall be entitled to retain counsel action, losses, liabilities, damages, claims, penalties, fines, forfeitures, fees, costs and to incur such reasonable expenses (including reasonable attorneys’ fees and court costs and reasonable attorney’s fees and expensesexpenses of counsel and experts and all expenses of document location, duplication and shipment) as in an amount not to exceed the amount of Total Merger Consideration actually received by each Securityholder (collectively, “Securityholder Representative deems to be reasonably necessary or appropriate Losses”) actually incurred in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred any actions taken or omitted to be taken by the Securityholder Representative shall be borne pro rata pursuant to the terms of this Agreement, in each case as such Securityholder Representative Loss is incurred; provided that in the event it is finally adjudicated that a Securityholder Representative Loss or any portion thereof was primarily caused by the Securityholders based upon their respective initial willful misconduct, bad faith or gross negligence of the Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify Representative, the Securityholder Representative (in its capacity as such)will reimburse the Securityholders the amount of such indemnified Securityholder Representative Loss attributable to such willful misconduct, on a pro rata basis based upon their respective bad faith or gross negligence. Any Securityholder Allocation Percentages, against, and to hold Representative Losses actually suffered or incurred may be recovered by the Securityholder Representative only in the following order: (i) first, from the Securityholder Representative Expense Amount, (ii) second, from the amounts in the Escrow Amount otherwise distributable to the Securityholders pursuant to the terms hereof and the Indemnity Escrow Agreement; (iii) third, from any Earn-out Amounts at such time as any such amounts would otherwise be distributable to the Securityholders; and (iv) last, directly from the Securityholders, in which case indemnification for Securityholder Representative’s Losses actually suffered or incurred shall be limited to each Securityholder’s Pro-Rata Portion thereof; provided, that while this section allows the Securityholder Representative to be paid from Securityholder Representative Expense Amount, the Escrow Amount, and the Earn-out Amounts, this does not relieve the Securityholders from their obligation to promptly pay such Securityholder Representative Losses as they are suffered or incurred, nor does it prevent the Securityholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Securityholder Representative be required to advance its capacity as suchown funds on behalf of the Securityholders or otherwise, and the Securityholder Representative will not be required to take any action involving any expense unless the payment of such expense is made or provided for in a manner satisfactory to it. The Securityholders who have contributed at least 60% of the Escrow Amount can appoint a new Securityholder Representative by sending notice and a copy of the duly executed written consent appointing such new Securityholder Representative to the Securityholder Representative, Acquiror and the Escrow Agent. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Acquiror, Sub (or, if after the Effective Time, the Surviving Corporation) harmless from (and the Escrow Agent. No bond shall be required of the Securityholder Representative, and the Securityholder Representative shall have the right to deduct receive no compensation for its services, other than from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative Expense Amount or as set forth in such capacity in any way relating to or arising out the Securityholder Representative Engagement Agreement. Solely as between the Securityholders, the engagement of its action or failure to take action the Securityholder Representative is made pursuant to this Agreement or in connection herewith in such capacity; provided, that none the terms of the Securityholders shall Engagement Agreement to be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of entered with the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to Securityholders acknowledge and agree that the Securityholders covering such expenses and/or liabilities and, upon foregoing indemnities will survive the request resignation or removal of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions approval of this Agreement by the requisite vote or its duties hereunder, and it written consent of Stockholders shall incur no liability in its capacity as Securityholder Representative also be deemed to constitute approval of all arrangements relating to the Buyer or transactions contemplated hereby and to the Securityholders provisions hereof and shall be fully protected with respect to any action takenof the applicable Ancillary Agreements binding upon the Stockholders, omitted or suffered by it in good faith in accordance with the opinion of such counselincluding Article VII hereof.
Appears in 1 contract
Securityholder Representative. (a) Each As of the Effective Date, each Securityholder hereby appoints ACAS irrevocably appointed the Securityholder Representative as the “Securityholder Representative” such Securityholder’s representative, attorney-in-fact and exclusive agent, with full power of substitution to act in the name, place and stead to act on behalf of such Securityholder in any amendment of or litigation or arbitration involving this Agreement, including defending, negotiating, settling or otherwise dealing with claims under Article X hereof, and to do or refrain from doing all such further acts and things, and to execute all such documents, as the agent such Securityholder Representative shall deem necessary or appropriate in conjunction with any of the Securityholders with transactions contemplated by this Agreement and each Ancillary Agreement (subject to the full power foregoing limitation), including the power:
(i) to resolve take all questions, disputes, conflicts action necessary or desirable in connection with the waiver of any condition to the obligations of the Securityholders to consummate the transactions contemplated by this Agreement and controversies concerning Losses as provided in this Article 11, each Ancillary Agreement;
(ii) to negotiate, execute and enter intodeliver each Ancillary Agreement, statements, certificates, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to given in connection with the consummation of the transactions contemplated by this Agreement and each Ancillary Agreement (it being understood that such Securityholder shall execute and deliver any such documents which the Securityholder Representative agrees to execute);
(iii) to give and receive all notices and communications to be given or received under this Agreement and to receive service of process in connection with any claims under this Agreement and the transactions contemplated hereby; and
(iv) to take all actions which under this Agreement and the transactions contemplated hereby may be taken by the Securityholders and to do or refrain from doing any further act or deed on behalf of the Securityholders, and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as Securityholder which the Securityholder Representative, Representative deems necessary or appropriate in its sole discretiondiscretion relating to the subject matter of this Agreement and the transactions contemplated hereby as fully and completely as such Securityholder could do if personally present. Notwithstanding the foregoing, deems proper, (vi) the Securityholder Representative shall have no obligation to pay, release and/or distribute any or all act on behalf of the Reserve Account or otherwise to pay Losses hereunderSecurityholder, except as expressly provided herein and in each in its sole discretionAncillary Agreement, (vii) to adjust the Securityholder Allocation Percentage and for purposes of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representationsclarity, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions there are no obligations of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on in any ancillary agreement, schedule, exhibit or the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation PercentagesDisclosure Schedule.
(b) The Certain Securityholders hereby agree severally have entered into a Security Representative Letter Agreement to indemnify provide direction to the Securityholder Representative in connection with the performance of its services under this Agreement and each Ancillary Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholder Representative (together with its members, managers, directors, officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Securityholder Representative Group”) will be liable to the Securityholders for any action taken or omitted by it as permitted under this Agreement and each Ancillary Agreement and the transactions contemplated hereby and thereby, except if such action is taken or omitted in its capacity as such)bad faith, by willful misconduct or due to gross negligence. The Securityholder Representative will also be fully protected against the Securityholders in relying upon any signature, written notice, demand, certificate or document that he in good faith believes to be genuine (including facsimiles thereof) and shall be entitled to reasonably assume that a signatory has proper authorization to sign on a pro rata basis based upon behalf of the applicable Securityholder or other party.
(c) The Securityholders agree, in accordance with their respective Transaction Percentage, to indemnify and defend the Securityholder Allocation Percentages, againstRepresentative Group for, and to hold the Securityholder Representative Group harmless against, any loss, liability, cost, fee, claim, damage, judgment, amount in settlement or expense (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers) incurred without willful misconduct, bad faith, or gross negligence or material breach of the Securityholder Representative Agreement on the part of the Securityholder Representative Group, arising out of or in connection with the Securityholder Representative Group’s carrying out its capacity as suchduties under this Agreement and each Ancillary Agreement and the transactions contemplated hereby and thereby, including costs and expenses (which may be funded first, from the Expense Fund, second, from any amount payable to the Securityholders pursuant to Section 3.7 or any portion of the Escrow Fund payable to the Securityholders pursuant to the terms of this Agreement and each Ancillary Agreement, if any, in either case, solely if and to the extent not subject to any claims for indemnification by any Buyer Indemnified Party, and third, directly from the Securityholders based on their respective Transaction Percentage) harmless from (and of successfully defending the Securityholder Representative against any claim of liability with respect thereto. The Securityholders acknowledge that the Securityholder Representative shall have not be required to expend or risk its own funds or otherwise incur any financial liability in the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), exercise or performance of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action powers, rights, duties or failure to take action pursuant to this Agreement privileges or in connection herewith in such capacity; provided, that none administration of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representativeits duties. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request consult with counsel of its own choice and will have full and complete authorization and protection for any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined action taken and suffered by it in good faith and in accordance with the opinion of such counsel. The powers, immunities and rights to be owed indemnification granted to the Securityholder Representative against and the Reserve Account and against any amounts to be paid to the Securityholders Advisory Group hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
: (ci) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to whole or any applicable Lawfraction of his, her or its interest in the Escrow Fund.
(d) The In acting hereunder, the Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position shall act on behalf of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization not on behalf of the Securityholdersany one Securityholder.
(e) The If the Securityholder Representative becomes unable to serve as Securityholder Representative, such other Person or Persons as may be designated by a majority of the Securityholders, based on each Securityholder’s Transaction Percentage, and shall not be liable to the Buyer or the Securityholders in its capacity succeed as the Securityholder Representative. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any member of the provisions Advisory Group and the Closing and/or any termination of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion of such counselAncillary Agreements.
Appears in 1 contract
Samples: Acquisition Agreement and Plan of Merger (Envestnet, Inc.)
Securityholder Representative. (a) Each Pursuant to the adoption of this Agreement by the Company, it will be deemed to have irrevocably appointed, authorized and empowered the Securityholder hereby appoints ACAS as the “Securityholder Representative” Representative to act as a representative for the benefit of each Unitholder as the exclusive agent and attorney‑in‑fact with the power and authority to act on behalf of each Unitholder in connection with and to facilitate the consummation of the Securityholders with Transactions, which shall include the full power and authority:
(i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the Securityholders, deliver such waivers and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Transactions as the Securityholder Representative, in its sole discretion, deems propermay deem necessary or desirable, including any amendments or modifications to this Agreement or the other Transaction Agreements;
(ii) to enforce and protect the rights and interests of the Unitholders and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Transactions, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Unitholders. Without limiting the generality of the foregoing, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Purchaser or any other Person, or by any Governmental Entity against the Securityholder Representative and/or the Unitholders, (C) receive process on behalf of any or all Unitholders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary; and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder Representative shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions);
(iii) to refrain from enforcing any right of the Unitholders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Unitholders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the Transactions, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) to give and receive all notices and communications to be given or received under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration;
(vi) to pay, release and/or distribute determine whether to deliver a Notice of Disagreement and to resolve any disputes regarding the Closing Statement; and
(vii) to make or all receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements on behalf of the Reserve Account Unitholders, including by using the Securityholder Representative Funds (and any interest or otherwise earnings thereon) to pay Losses hereundersatisfy costs, each expenses and/or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (the “Securityholder Representative Expenses”), with any balance of the Securityholder Representative Funds not used for such purposes to be disbursed and paid, at such time as the Securityholder Representative determines, in its sole discretion, (vii) that no additional Securityholder Representative Expenses shall become due and payable, to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunderUnitholders in accordance with Section 3.2(a) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation PercentagesSection 3.2(c)(ii).
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), Notwithstanding any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements provision of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; providedto the contrary, that none the consent of the Securityholders Unitholder(s) comprising the Class A Majority Interest (as defined in the LLC Agreement) shall be liable required for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf make any compromise, settlement, or agreement that would require the payment of the Securityholders. Any payment any amounts not expressly provided for in this Agreement by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable LawUnitholders.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion of such counsel.
Appears in 1 contract
Samples: Merger Agreement (PJT Partners Inc.)
Securityholder Representative. (a) Each Securityholder hereby irrevocably appoints ACAS the Securityholder Representative as the “Securityholder Representative” such Securityholder’s representative, attorney-in-fact and agent, with full power of substitution to act in the name, place and stead to act on behalf of such Securityholder in any amendment of or litigation or arbitration involving this Agreement, including, without limitation, defending, negotiating, settling or otherwise dealing with claims under ARTICLE IX hereof, and to do or refrain from doing all such further acts and things, and to execute all such documents, as the agent such Securityholder Representative shall deem necessary or appropriate in conjunction with any of the Securityholders with transactions contemplated by this Agreement (subject to the full power foregoing limitation), including, without limitation, the power:
(i) to resolve take all questions, disputes, conflicts and controversies concerning Losses as provided action necessary or desirable in connection with the waiver of any condition to the obligations of the Securityholders to consummate the transactions contemplated by this Article 11, Agreement;
(ii) to negotiate, execute and enter intodeliver all ancillary agreements, statements, certificates, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement (it being understood that such Securityholder shall execute and deliver any such documents which the Securityholder Representative agrees to execute);
(iii) to give and receive all notices and communications to be given or received under this Agreement and to receive service of process in connection with any claims under this Agreement and the transactions contemplated hereby; and
(iv) to take all actions which under this Agreement and the transactions contemplated hereby may be taken by the Securityholders and to do or refrain from doing any further act or deed on behalf of the Securityholders, and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as which the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance sole discretion relating to the subject matter of its obligations under this Agreement, Agreement and all the transactions contemplated hereby as fully and completely as such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentagescould do if personally present.
(b) The Securityholder Representative will not be liable to the Securityholders hereby agree severally for any action taken or omitted by him as permitted under this Agreement and the transactions contemplated hereby, except if such action is taken or omitted in bad faith, by willful misconduct or due to gross negligence or constitutes a breach of the Securityholder Representative Agreement. The Securityholder Representative will also be fully protected against the Securityholders in relying upon any written notice, demand, certificate or document that he in good faith believes to be genuine (including facsimiles thereof).
(c) The Indemnifying Securityholders agree, in accordance with their respective Escrow Pro Rata Share, to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, againstfor, and to hold the Securityholder Representative (in its capacity as such) harmless from (and against, any loss, liability or expense incurred without willful misconduct, bad faith, gross negligence or breach of the Securityholder Representative shall have Agreement on the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct part of the Securityholder Representative, arising out of or in connection with the Securityholder Representative’s carrying out his duties under this Agreement and the transactions contemplated hereby, including costs and expenses (which may be funded from the Expense Fund or any amount payable to the Securityholders pursuant to Section 3.7 or any portion of the Escrow Fund payable to the Indemnifying Securityholders pursuant to the terms of this Agreement and the Escrow Agreement, if any, in either case, solely if and to the extent not subject to any claims for indemnification by any Buyer Indemnified Party) of successfully defending the Securityholder Representative against any claim of liability with respect thereto. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request consult with counsel of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account his own choice and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement will have full and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest complete authorization and shall be irrevocable by any Securityholder in any manner or protection for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer action taken and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith and in accordance with the opinion of such counsel.
(d) In acting hereunder, the Securityholder Representative shall act on behalf of all Securityholders and not on behalf of any one Securityholder.
(e) If the Securityholder Representative becomes unable to serve as Securityholder Representative, such other Person or Persons as may be designated by a majority of the Securityholders, based on each Securityholder’s Pro Rata Share, and shall succeed as the Securityholder Representative.
Appears in 1 contract
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS as the “Securityholder Representative” to act as the agent By virtue of the Securityholders with approval of this Agreement by the full power (i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf requisite vote or written consent of the SecurityholdersStockholders and the terms of the Support Agreements, the Option Surrender Agreements and Warrant Surrender Agreements, each Indemnifying Party shall be deemed to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable have consented to the Securityholders in accordance with the provisions appointment of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement Fortis Advisors LLC as the Securityholder Representative, as the exclusive agent and attorney-in-fact for and on behalf of each such Securityholder, and the taking by the Securityholder Representative of any and all actions and the making of any decisions required or permitted to be taken by the Securityholder Representative under this Agreement, including the exercise of the power to: (i) execute and deliver this Agreement any amendment thereof or waiver thereunder; (ii) authorize delivery to Parent of amounts in its sole discretionsatisfaction of any Adjustment Escrow Amount; (iii) authorize delivery to Parent of amounts in satisfaction of Indemnification Claims; (iv) agree to, deems propernegotiate, enter into settlements and compromises of and comply with Orders and awards of arbitrators with respect to Indemnification Claims; (v) resolve any Indemnification Claims; (vi) to payadminister the Relinquishment Agreements, release and/or distribute including resolving any or claims thereunder, and (vii) take all actions necessary in the judgment of the Securityholder Representative for the accomplishment of the foregoing and all of the Reserve Account other terms, conditions and limitations of this Agreement, the Securityholder Representative Engagement Agreement and the Relinquishment Agreements. Accordingly, the Securityholder Representative has unlimited authority and power to act on behalf of each Securityholder with respect to this Agreement and the disposition, settlement or other handling of all Indemnification Claims, rights or obligations arising from and taken pursuant to this Agreement or the Relinquishment Agreements. Notwithstanding the foregoing, the Securityholder Representative shall have no obligation to act on behalf of the Indemnifying Parties, except as expressly provided herein, in the Escrow Agreement and in the Securityholder Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Securityholder Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedule. The Securityholders, and such Indemnifying Party’s successors as if expressly confirmed and ratified in writing by such Indemnifying Party, will be bound by all actions taken by the Securityholder Representative in connection with this Agreement, the Securityholder Representative Engagement Agreement and the Relinquishment Agreements, and all defenses which may be available to any Indemnifying Party to contest, negate or disaffirm the action of the Securityholder Representative taken in good faith under this Agreement, the Escrow Agreement or the Securityholder Representative Engagement Agreement are waived. Parent shall be entitled to rely on any action or decision of the Securityholder Representative. Certain Indemnifying Parties have entered into an engagement agreement (the “Securityholder Representative Engagement Agreement”) with the Securityholder Representative to provide direction to the Securityholder Representative in connection with its services under this Agreement, the Escrow Agreement and the Securityholder Representative Engagement Agreement (such Indemnifying Party, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholder Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholder Representative Group”) will incur any Liability with respect to any action taken or suffered by the Securityholder Representative in reliance upon any notice, direction, instruction, consent, statement or other document believed by the Securityholder Representative to be genuine and to have been signed by the proper Person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except the Securityholder Representative’s own intentional misconduct, bad faith or gross negligence. In all questions arising under this Agreement or the Relinquishment Agreements, the Securityholder Representative may: (i) rely on the advice of counsel, and the Securityholder Representative will not be liable to Securityholders or Key Employees for anything done, omitted or suffered in good faith by the Securityholder Representative based on such advice, (ii) rely upon the Closing Spreadsheet, (iii) rely upon any signature believed by it to be genuine, and (iv) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Indemnifying Party or other party. If and to the extent any such appointment of the Securityholder Representative is revoked, such revocation shall be considered a breach of this Agreement and Parent shall be entitled to any such resulting Losses from such revocation. Each Indemnifying Party shall indemnify, defend and hold harmless the Securityholder Representative Group against such Indemnifying Party’s Pro Rata Portion of any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment and costs in connection with seeking recovery from insurers) (collectively, the “Representative Losses”) arising out of or in connection with the Securityholder Representative’s execution and performance of this Agreement and the other Transaction Documents, in each case as such Representative Loss is suffered or incurred; provided, however, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by gross negligence or intentional misconduct of the Securityholder Representative, the Securityholder Representative will reimburse the Indemnifying Parties the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or intentional misconduct. If not paid directly to the Securityholder Representative by the Indemnifying Parties, any such Representative Losses may be recovered by the Securityholder Representative from the Expense Fund; provided that while this Section 7.3(a) allows the Securityholder Representative to be paid from the Expense Fund, this does not relieve the Indemnifying Parties from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Securityholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Securityholder Representative be required to advance its own funds on behalf of the Indemnifying Parties or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to pay Losses hereunderthis Agreement, each the Escrow Agreement, the Securityholder Representative Engagement Agreement or the transactions contemplated hereby or thereby. Furthermore, the Securityholder Representative shall not be required to take any action unless the Securityholder Representative has been provided with funds, security or indemnities which, in its sole discretiondetermination, (vii) are sufficient to adjust protect the Securityholder Allocation Percentage Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in performing such actions. The Indemnifying Parties acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Reserve Account otherwise payable to Securityholder Representative or any particular Securityholder as a result member of the payment Advisory Group and the Closing and/or the termination of Losses resulting from breaches this Agreement. The initial Securityholder Representative may appoint a successor Securityholder Representative, and such appointment shall become effective upon written notice to Parent. The Securityholder Representative may be removed by action of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all Indemnifying Parties who collectively held a majority of the functions Shares that were issued and outstanding as of immediately prior to the Effective Time. In the event of the resignation, removal, death or incapacity of the Securityholder Representative, a successor Securityholder Representative shall thereafter be appointed by vote or written consent of a majority of the Indemnifying Parties. Any new or successor Securityholder Representative will assume all rights and obligations of the initial Securityholder Representative under this Agreement. The Buyer is entitled powers, immunities and rights to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed indemnification granted to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders Group hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
: (ci) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is are coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by and survive the death, illnessincompetence, dissolution, disability, incapacity bankruptcy or other inability to act liquidation of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer Indemnifying Party and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all any successor thereto, and (ii) shall survive the delivery of an assignment by any Indemnifying Party of the Securityholders and shall constitute whole or any fraction of his, her or its interest in the authorization of the SecurityholdersIndemnity Escrow Fund.
(eb) The In furtherance of the foregoing, each Indemnifying Party hereby authorizes Parent to withhold or cause to be withheld an aggregate amount in cash equal to $250,000 (the “Expense Amount”) from the amounts otherwise payable by Parent to the Indemnifying Parties pursuant to Section 1.6, with each Indemnifying Party contributing an amount equal to such Indemnifying Party’s Pro Rata Portion of the Expense Amount. For Tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Indemnifying Parties at the time of the Closing. Promptly following the Effective Time, Parent shall cause the Exchange Agent to deliver to the account of the Securityholder Representative shall not be liable set forth in the Closing Spreadsheet, an amount in cash equal to the Buyer Expense Amount (such funds being referred to herein as the “Expense Fund”), provided that the Exchange Agent shall have first received an IRS Form W-9 duly executed by the Securityholder Representative and such know-your-customer information as the Exchange Agent may request to comply with Applicable Law, in each case, in form and substance reasonably satisfactory to the Exchange Agent. The Indemnifying Parties shall hold harmless and indemnify the Indemnified Parties from and against any Losses relating to the deduction of the Expense Amount from the consideration payable to the Indemnifying Parties pursuant to this Agreement. The Expense Fund will be used: (i) for the purposes of paying directly or the Securityholders in its capacity as reimbursing the Securityholder Representative for and Representative Losses pursuant to this Agreement, the Securityholder Representative Engagement Agreement, the Relinquishment Agreements and the other Transaction Documents or (ii) as otherwise directed by the Advisory Group. The Indemnifying Parties will not receive any liability of a interest or earnings on the Expense Fund and irrevocably transfer and assign to the Securityholder Representative any ownership right that they may otherwise have had in any such interest or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by itearnings. The Securityholder Representative may seek will not be liable for any loss of principal of the advice Expense Fund other than as a result of reputable legal counsel its gross negligence or intentional misconduct. The Securityholder Representative will hold these funds separate from its own funds, will not use these funds for its own purposes and will not voluntarily make these funds available to its creditors in the event of any dispute or question as bankruptcy. Subject to Advisory Group approval, the Securityholder Representative may contribute funds to the construction of Expense Fund from any consideration otherwise distributable to the Indemnifying Parties. As soon as practicable following the completion of the provisions of this Agreement or its duties hereunderSecurityholder Representative’s responsibilities, and it shall incur no liability in its capacity as the Securityholder Representative will deliver the balance of the Expense Fund to the Buyer or the Securityholders and shall be fully protected with respect to any action takenIndemnifying Parties, omitted or suffered by it in good faith in accordance with the opinion of such counseltheir Pro Rata Portions.
Appears in 1 contract
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS By executing this Agreement (or, with respect to holders of options or warrants, by acknowledging their obligations as Securityholders under this Agreement), the Securityholders irrevocably appoint Shareholder Representative Services LLC, solely in its capacity as the representative, agent and attorney-in-fact of the Securityholders, as of the Closing for all purposes in connection with this Agreement and all agreements ancillary hereto and to execute and deliver this Agreement on their behalf and exercise all or any of the powers, authority and discretion so conferred under this Agreement, including Section 10 (the “Securityholder Representative” to act ”), and Shareholder Representative Services LLC hereby accepts the appointment as the agent Securityholder Representative for purposes of Section 10.
(b) The Securityholder Representative shall have and may exercise all of the Securityholders with powers conferred upon it pursuant to this Agreement and, the full power Paying Agent Agreement, which shall include:
(i) The power to resolve all questionsexecute any agreement or instrument in connection with the transactions contemplated hereby for and on behalf of the Securityholders, disputes, conflicts and controversies concerning Losses as provided in including this Article 11, Agreement;
(ii) The power to execute give or receive any notice or instruction permitted or required under this Agreement, the Paying Agent Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, to be given or received by any Securityholder, and each of them (other than notice for service of process relating to any Legal Proceeding before a court or other tribunal of competent jurisdiction, which notice must be given to each Securityholder individually, as applicable), and to take any and all action for and on behalf of Securityholders, and each of them, under this Agreement, the Paying Agent Agreement, or any other such agreement, document or instrument;
(iii) The power (subject to the provisions of this Section 10.5(b)(iii)) to contest, negotiate, defend, compromise or settle (or refrain from doing so) in accordance with and subject to terms of Section 10 any indemnification claims or Legal Proceedings for which a Securityholder may be entitled to indemnification through counsel selected by the Securityholder Representative and solely at the cost, risk and expense of the Securityholders, authorize payment to any Securityholder of any of the Holdback Amounts, or any portion thereof, in satisfaction of any indemnification claims, agree to, negotiate, enter intointo settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such indemnification claims, resolve any indemnification claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated hereby by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Securityholder or necessary in the judgment of the Securityholder Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement and the Paying Agent Agreement;
(iv) The power to consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Securityholders;
(v) The power to review, negotiate and agree to and authorize, in accordance with and subject to terms of Section 10, any payments from the Holdback Amounts in satisfaction of any payment obligation, in each case, on behalf of the Securityholders, as contemplated thereunder;
(vi) The power to waive any terms and conditions of this Agreement and the Paying Agent Agreement providing rights or benefits to the Securityholders (other than the payment of the Closing Payment in accordance with the terms hereof and in the manner provided herein);
(vii) The power to take all any actions thereunder contemplated hereunder or under the Paying Agent Agreement and otherwise in regard to such other matters as are reasonably necessary for and on their behalf, including but not limited the authorization consummation of payments from the Reserve Account transactions contemplated hereby or as the Securityholder Representative reasonably believes are in the best interests of the Securityholders;
(including any increase thereof pursuant viii) The power to Section 2.04(b)(i)) direct the Paying Agent to disburse amounts paid to the Paying Agent in connection accordance with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) and to receive from direct such portions of the Buyer monies payable Holdback Amounts to be disbursed to the Securityholders in accordance with the provisions hereof in accordance with the Allocation Schedule and in accordance with the terms and conditions of this Agreement; and
(ix) The power to amend this Agreement, (v) to otherwise take such actions (the Paying Agent Agreement or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account instruments to be delivered to the Purchaser pursuant hereof and thereof; provided, however, that notwithstanding the foregoing or otherwise anything to pay Losses hereunderthe contrary set forth herein, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants powers conferred above shall not authorize or agreements hereunder) and (viii) to perform all of the functions of empower the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements do or cause to be done any of the Securityholder Representative as the acts and agreements of foregoing (i) in a manner that improperly discriminates between or among the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses ; or (including court costs and reasonable attorney’s fees and expensesii) as to any matter insofar as such matter relates solely and exclusively to a single Securityholder, whereupon the Securityholder Representative deems who is alleged to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreementbreach shall handle all matters related to such indemnification claim, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally references to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith Section 10.2 in such capacity; providedevent shall refer to the Securityholder. Without implying that other actions would constitute an improper discrimination, that none each of the Securityholders shall be liable for agrees that discrimination between or among Securityholders solely on the basis of the respective number of Shares held by each Securityholder or their respective pro rata share or any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely recovery from the gross negligence or willful misconduct of Retention Indemnity Holdback Amount and/or the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request Special Indemnification Holdback Amount on a joint basis (based on any Securityholder’s pro rata share of any Securityholder, Damage covered in Section 10.1) as specified therein shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it not be deemed to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreementimproper.
(c) The Buyer shall be fully protected in dealing with Securityholder Representative hereby represents and warrants to Purchaser as follows:
(i) The Securityholder Representative has all necessary limited liability company power and authority to execute and deliver this Agreement and to carry out the Securityholder Representative’s obligations hereunder and thereunder, subject to the laws of agency.
(ii) This Agreement has been duly executed and delivered by the Securityholder Representative under and, assuming the due authorization, execution and delivery of this Agreement by Purchaser, the Company and may rely upon the authority Sellers, constitutes the valid and legally binding obligation of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to Representative, enforceable against the Securityholder Representative in accordance with its terms, subject to (i) bankruptcy, insolvency, reorganization or similar laws of general application affecting the rights and remedies of creditors, and to general equity principles and to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment laws of the Securityholder Representative is coupled with an interest agency, and shall be irrevocable by any Securityholder in any manner or for any reason. This power (ii) rules of attorney shall not be affected by the deathlaw governing specific performance, illness, dissolution, disability, incapacity or injunctive relief and other inability to act of the principal pursuant to any applicable Lawequitable remedies.
(d) Upon receipt or notice of any indemnification claim, the Securityholder Representative shall give prompt notice of the amount and details thereof (to the extent of the information in the Securityholder Representative’s possession) to the advisory committee (the “Advisory Committee”) established pursuant to that certain engagement letter to be entered into by and among Shareholder Representative Services LLC and certain of the Securityholders (the “SRS Engagement Letter”). Promptly thereafter, the Securityholder Representative shall notify the Advisory Committee of the proposed action which the Securityholder Representative recommends shall be taken in response to such indemnification claim. The Securityholder Representative may resign from its capacity shall have the discretion to take such action as the Securityholder Representative at shall determine to be in the best interest of all of the Securityholders, including authorizing the distribution to any time by written notice delivered Securityholder of any portion of the Retention Indemnity Holdback Amount and the Special Indemnification Holdback Amount, subject to the Buyer and limitations of Section 10.5(b). Except to the Securityholders. If there is extent that this Agreement requires that a vacancy at notice be made to a Securityholder, any time in notice given to the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in that is within the form of a writing executed by the Securityholders entitled to a majority scope of the number of votes referred Securityholder Representative’s authority under Section 10.5(b) will constitute notice to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders at the time notice is given to the Securityholder Representative. Any action taken by, or notice or instruction received from, the Securityholder Representative will be deemed to be action by, or notice or instruction from, each and shall constitute the authorization all of the Securityholders. Except as otherwise contained herein or in the Paying Agent Agreement, Purchaser and the Company may, and the Paying Agent will, disregard any notice or instruction received from any one or more individual Securityholders.
(e) The Securityholder Representative hereby agrees to do such acts, and execute further documents, as shall be necessary to carry out the provisions of this Agreement.
(f) The Securityholder Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its fraud, bad faith, gross negligence or willful misconduct. The Securityholder Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders shall indemnify the Securityholder Representative and hold the Securityholder Representative harmless against any claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs and expenses (including attorneys’ fees and court costs) (collectively, “Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is incurred or suffered; provided that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, willful misconduct or bad faith of the Securityholder Representative, the Securityholder Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence, fraud, willful misconduct or bad faith. If not paid directly to the Securityholder Representative by the Securityholders, any such Representative Losses shall be recovered by the Securityholder Representative from (i) the Securityholder Representative Expense Fund (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders in accordance with written instructions delivered by the Securityholder Representative to Purchaser; provided that while this Section allows the Securityholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay any such Representative Losses as they are suffered or incurred, nor does it prevent the Securityholder Representative from seeking any remedies available to it at law. In no event will the Shareholder Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Securityholder Representative hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Securityholder Representative or the termination of this Agreement.
(g) Purchaser (including, after the Closing, the Company) shall be entitled to rely on the appointment of the Securityholder Representative and treat such Securityholder Representative as the duly appointed attorney-in-fact of each Securityholder having the duties, power and authority provided for in this Agreement (subject to the limitation set forth in Section 10.5(b)). Purchaser (including, after the Closing, the Company) shall not be liable to the Buyer any Securityholder for any actions taken or the Securityholders omitted by them in its capacity as reliance upon any instructions, notice or other instruments delivered by the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as was authorized pursuant to the construction of any of the provisions of this Agreement Section 10.5(b) above. No resignation of the Securityholder Representative shall become effective unless at least thirty (30) days prior written notice of the replacement or its duties hereunderresignation of such Securityholder Representative shall be provided to Purchaser. Purchaser (including, after the Closing, the Company) shall be entitled to rely at any time after receipt of any such notice on the most recent notice so received. The former holders of a majority of the Company’s Shares (on an as-converted basis), may remove the Securityholder Representative by a written instrument delivered to the Securityholder Representative, Purchaser and the Company, and, in such event and also if the Securityholder Representative shall be unable or unwilling to serve in such capacity, such person’s successor who shall serve and exercise the powers of the Securityholder Representative hereunder shall be appointed by a written instrument signed by the former holders of a majority of the Company’s Shares (on an as-converted basis), and it shall incur no liability in its capacity as delivered to Purchaser. If the Securityholder Representative shall die, become disabled or otherwise be unable to fulfill the responsibilities as agent of the Securityholders, then the Securityholders shall, within ten (10) days after such death or disability, appoint a successor agent and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the “Securityholder Representative” for purposes of Section 10 and this Section 10.5. If for any reason there is no Securityholder Representative at any time, all references herein to the Buyer or the Securityholders and Securityholder Representative shall be fully protected with respect deemed to any action taken, omitted or suffered by it in good faith in accordance with refer to the opinion of such counselSecurityholders.
Appears in 1 contract
Securityholder Representative. (a) Each Pursuant to the adoption of this Agreement by Company Stockholders representing greater than 50% of the outstanding shares of Company Common Stock, each Company Stockholder will be deemed to have irrevocably designated, appointed, authorized and empowered the Securityholder hereby appoints ACAS as the “Securityholder Representative” Representative to act as a representative for the benefit of each Company Stockholder as the exclusive agent and attorney‑in‑fact with the power and authority to act on behalf of each Company Stockholder in connection with and to facilitate the consummation of the Securityholders with Transactions (including the full Merger), which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Agreement; 86 provided, however, that the Securityholder Representative shall have no obligation to the Company Stockholders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority:
(i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the Securityholders, deliver such waivers and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby as the Securityholder Representative, in its sole discretion, deems propermay deem necessary or desirable, including any amendments or modifications to this Agreement or the other Transaction Agreements;
(ii) to enforce and protect the rights and interests of the Company Stockholders and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Company Stockholders. Without limiting the generality of the foregoing, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent, R1 or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Company Stockholders, (C) receive process on behalf of any or all Company Stockholders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary, and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder Representative shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions);
(iii) to refrain from enforcing any right of the Company Stockholders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Company Stockholders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings (including, without limitation, the EMS Stockholders Agreement and any joinders thereto), and, in general, to do any and all things and to take any and all action that the Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the Merger and other transactions contemplated by this Agreement and the other Transaction 87 Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) to terminate this Agreement if the Company is entitled to do so;
(vi) to paygive and receive all notices and communications to be given or received under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, release and/or distribute including service of process in connection with any arbitration;
(vii) to determine whether to deliver a Notice of Disagreement and to resolve any disputes regarding the Closing Statement; and
(viii) to make or all receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Reserve Account Company Stockholders, including by using the Securityholder Representative Expense Amount (and any interest or otherwise earnings thereon) to pay Losses hereundersatisfy costs, each expenses and/or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements, with any balance of the Securityholder Representative Expense Amount not used for such purposes to be disbursed and paid, at such time as the Securityholder Representative determines, in its sole discretion, (vii) that no additional such costs, expenses or liabilities shall become due and payable, to adjust the Securityholder Allocation Percentage Company Stockholders in accordance with Section 3.06(f), which, for the avoidance of doubt, shall not be prior to the determination of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation PercentagesFinal Cash Merger Consideration.
(b) The Securityholders hereby agree severally Parent and R1 may rely upon all actions taken or omitted to indemnify be taken by the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement and the other Transaction Agreements, all of which actions or in connection herewith in such capacity; provided, that none of the Securityholders omissions shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, legally binding upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this AgreementCompany Stockholders.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the grant of authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative provided for herein (i) is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by and survive the death, illnessincompetency, dissolution, disability, incapacity bankruptcy or other inability to act liquidation of any Company Stockholder and (ii) shall survive the consummation of the principal pursuant to any applicable LawMerger and other transactions contemplated hereby and by the other Transaction Agreements.
(d) The All actions taken by the Securityholder Representative may resign from under this Agreement and the other Transaction Agreements shall be binding upon all Company Stockholders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Company Stockholders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, unless otherwise instructed by the Securityholder Representative, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Company Stockholders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its capacity responsibilities as representative of the Company Stockholders, the Company Stockholders shall, within 10 days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Company Stockholders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Company Stockholders hereunder. If for any reason there is no Securityholder Representative at any time by written notice delivered time, all references herein or in any other agreement or instrument contemplated hereby to the Buyer Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Company Stockholders shall be deemed to refer to the Company Stockholders. Each Company Stockholder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reasonother agreements and instruments contemplated hereby and thereby, such vacancy including all actions and inactions permitted by this Section 10.15, shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be fully binding on all of the Securityholders and shall constitute the authorization of the Securityholdersthem.
(e) The By the execution of a Letter of Transmittal each Company Stockholder irrevocably shall agree and acknowledge that the Securityholder Representative shall not have no liability to any Company Stockholder with respect to actions taken or omitted to be liable to the Buyer or the Securityholders taken in its capacity as the Securityholder Representative for and that the Securityholder Representative shall be under no obligation to take any liability action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Company Stockholder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. By the execution of a Letter of Transmittal each Company Stockholder irrevocably shall agree that the Securityholder Representative shall be entitled to indemnification from the Company Stockholders against any loss, liability or for any error expenses arising out of judgment, or any act done or step actions taken or omitted by it believed by it to be taken in good faith or its capacity as the Securityholder Representative (except for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case those arising out of Securityholder Representative’s gross negligence or willful misconduct by itmisconduct), including the costs and expenses of investigation and defense of claims. The Company Stockholders will indemnify the Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Company Stockholders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such counselcapacity.
Appears in 1 contract
Samples: Merger Agreement (R1 RCM Inc.)
Securityholder Representative. By virtue of the execution and delivery of a Joinder Agreement, and the adoption of this Agreement and approval of the Merger by the Stockholders, and without any further action of any of the Indemnifying Securityholders or the Company, each Indemnifying Securityholder will, as a specific term of the Merger, be deemed to have agreed that:
(a) Each The Securityholder hereby appoints ACAS Representative is irrevocably constituted and appointed as of the Closing as the “Securityholder Representative” to act as , representative, agent, proxy, and attorney in fact (coupled with an interest) for all such Persons for all purposes under this Agreement and the agent of the Securityholders with Transaction Documents including the full power and authority on each such Person’s behalf: (i) to resolve all questions, disputes, conflicts consummate the transactions contemplated under this Agreement and controversies concerning Losses as provided in this Article 11, the other Transaction Documents; (ii) to execute negotiate claims and enter intodisputes arising under, or relating to, this Agreement and the other Transaction Documents (including, for the avoidance of doubt, the adjustment of Closing Proceeds contemplated by Section 3.3 and claims for indemnification under Article 9); (iii) to facilitate the disbursement to any Indemnifying Securityholder of any funds due to such Indemnifying Securityholder under this Agreement (including, for the avoidance of doubt, any portion of the Merger Consideration) or otherwise; (iv) to withhold any amounts received on behalf of any Indemnifying Securityholder pursuant to this Agreement (including, for the avoidance of doubt, any portion of the Merger Consideration) or to satisfy (on behalf of the Indemnifying Securityholders) any and all obligations or Liabilities of any Indemnifying Securityholder or the Securityholder Representative in the performance of any of their commitments hereunder (including, and to take all actions thereunder for and the avoidance of doubt, the satisfaction of payment obligations (on their behalf, including but not limited behalf of the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)Indemnifying Securityholder) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims the adjustment of Closing Proceeds contemplated by Section 3.3 or the indemnification of Indemnified Persons under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, Article 9); (v) to otherwise execute and deliver any amendment or waiver to this Agreement and the other Transaction Documents (without the prior approval of any Indemnifying Securityholder); and (vi) to take such all other actions (to be taken by or refrain from taking actions) and execute such documents (including on behalf of any modifications, waivers or amendments thereto) on the Securityholders’ behalf Indemnifying Securityholder in connection with this Agreement as and the Securityholder Representativeother Transaction Documents. Such agency and proxy are coupled with an interest, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of are therefore irrevocable without the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions consent of the Securityholder Representative under and will survive the death, incapacity, bankruptcy, dissolution or liquidation of each Indemnifying Securityholder. All decisions and actions by the Securityholder Representative will be binding upon each Indemnifying Securityholder, and no Indemnifying Securityholder will have the right to object, dissent, protest or otherwise contest the same. No Indemnified Person will be liable to any Indemnifying Securityholder for any actions taken or omitted by them in reliance upon any instructions, notice, or other instruments delivered by the Securityholder Representative. The Securityholder Representative will have no duties or obligations hereunder, including any fiduciary duties, except those set forth herein, and such duties and obligations will be determined solely by the express provisions of this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.may resign at any time;
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and will incur no liability of any kind with respect to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses action or disbursements of whatever kind which may at any time be imposed upon, incurred omission by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of connection with its action or failure to take action services pursuant to this Agreement and the Transaction Documents, except in the event of liability directly resulting from the Securityholder Representative’s gross negligence or willful misconduct. The Securityholder Representative will not be liable for any action or omission pursuant to the advice of counsel. The Indemnifying Securityholders will indemnify, defend and hold harmless the Securityholder Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection herewith with the Securityholder Representative’s execution and performance of this Agreement and the Transaction Documents, in each case as such capacityRepresentative Loss is suffered or incurred; provided, that none of in the Securityholders shall be liable for event that any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior will reimburse the Indemnifying Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or contemporaneous written notice, offset any amounts determined by it to be owed willful misconduct. If not paid directly to the Securityholder Representative against by the Reserve Account Indemnifying Securityholders, any such Representative Losses may be recovered by the Securityholder Representative from (i) the funds in the Representative Expense Fund and against (ii) any other funds that become payable to the Indemnifying Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Indemnifying Securityholders; provided, that while this section allows the Securityholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Indemnifying Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Securityholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Securityholder Representative be required to advance its own funds on behalf of the Indemnifying Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Indemnifying Securityholders hereunderset forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Securityholder Representative under this section. The agreements in this Section 11.04 shall foregoing indemnities will survive the Closing, the resignation or removal of the Securityholder Representative or the termination of this Agreement.
(c) The Buyer shall Representative Expense Fund will be fully protected in dealing with used for the purposes of paying directly, or reimbursing the Securityholder Representative under for, any third party expenses pursuant to this Agreement and may rely upon the authority of agreements ancillary hereto. The Indemnifying Securityholders will not receive any interest or earnings on the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer Expense Fund and irrevocably transfer and assign to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholdersany ownership right that they may otherwise have had in any such interest or earnings. The appointment Securityholder Representative will not be liable for any loss of principal of the Representative Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Securityholder Representative’s responsibilities, the Securityholder Representative is coupled with an interest will deliver any remaining balance of the Representative Expense Fund to the Paying Agent for further distribution to the Indemnifying Securityholders. For tax purposes, the Representative Expense Fund will be treated as having been received and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected voluntarily set aside by the death, illness, dissolution, disability, incapacity or other inability to act Indemnifying Securityholders at the time of the principal pursuant to any applicable Law.Closing; and
(d) The Notwithstanding anything to the contrary herein, the Securityholder Representative may resign from and its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall Affiliates will not be liable for any Loss to the Buyer any Indemnifying Securityholder for any action taken or the Securityholders in its capacity as not taken by the Securityholder Representative for any liability of a Securityholder or for any error of judgment, act or any act done or step omission taken or omitted not taken in reliance upon the actions taken or not taken or decisions, communications or writings made, given or executed by it believed by it to be in good faith Parent or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer Merger Sub or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion of such counselSurviving Corporation.
Appears in 1 contract
Securityholder Representative. (a) Each By approving this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Company Stockholder shall have irrevocably authorized and appointed Securityholder hereby appoints ACAS Representative as the “Securityholder Representative” such Person’s representative and attorney-in-fact to act as the agent of the Securityholders with the full power (i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the Securityholders, and to take such Person for all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf purposes in connection with this Agreement as Agreement, the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of Additional Agreements and the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) ancillary hereto and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholdersthereto. The Securityholder Representative shall act as the representative of the Company Stockholders in respect of all matters arising under this Agreement, the Additional Agreements and the agreements ancillary hereto and thereto, and shall be entitled authorized to retain counsel act, or refrain from acting, with respect to any actions to be taken by or on behalf of the Company Stockholders or the Securityholder Representative, including to enforce any rights granted to the Company Stockholders hereunder and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) thereunder, in each case as the Securityholder Representative deems to be reasonably believes is necessary or appropriate in connection with its performance of its obligations under this Agreement, the Additional Agreements and/or the agreements ancillary hereto and thereto, for and on behalf of the Company Stockholders. The Company Stockholders shall be bound by all such fees and expenses incurred actions taken by the Securityholder Representative and the Company Stockholders shall not be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentagespermitted to take any such actions.
(b) The Securityholders hereby agree severally to indemnify Securityholder Representative is serving as the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, againstsolely for purposes of administrative convenience, and is not personally liable for any of the obligations of the Company, any of its Subsidiaries or the Company Stockholders hereunder, and Parent (on behalf of itself and its Affiliates) agrees that it will not look to hold the Securityholder Representative (in its capacity as such) harmless from (and or the underlying assets of the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of)satisfaction of any obligations of the Company, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses of its Subsidiaries or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Company Stockholders. The Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall not be liable for any portion error of such liabilitiesjudgment, obligationsor any action taken, lossessuffered or omitted to be taken, damagesin connection with the performance by the Securityholder Representative of the Securityholder Representative’s duties or the exercise by the Securityholder Representative of the Securityholder Representative’s rights and remedies under this Agreement, penaltiesany Additional Agreement or any agreement ancillary hereto or thereto, actions, judgments, suits, costs, expenses or disbursements resulting solely from except in the gross negligence case of its intentional fraud or willful misconduct misconduct. No bond shall be required of the Securityholder Representative. The Securityholder Representative may from time consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to time submit invoices be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Securityholder Representative shall not have any duty to ascertain or to inquire as to the Securityholders covering such expenses and/or liabilities and, upon the request performance or observance of any Securityholderof the terms, shall provide such Securityholder with an accounting covenants or conditions of all expenses paidthis Agreement or any Additional Agreement or any agreement ancillary hereto or thereto. In addition to any other rights or remedies (including Section 11.02(d))Without limiting the generality of the foregoing, the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it shall have the full power and authority to be owed to interpret all the Securityholder Representative against the Reserve Account terms and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination provisions of this AgreementAgreement and the Additional Agreements or any agreement ancillary hereto or thereto, and to consent to any amendment hereof or thereof on behalf of the Company Stockholders and their respective successors.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement may resign at any time by giving twenty (20) days’ notice to Parent and may rely upon the authority Company Stockholders; provided, however, in the event of the resignation or removal of the Securityholder Representative, a new Securityholder Representative (who shall be reasonably acceptable to act on behalf Parent) shall be appointed by the vote or written consent of a majority of the Securityholders. Any payment shares of Parent Common Stock, voting together as a single class (with each such share entitled to one vote), then held by the Buyer Company Stockholders as of immediately prior to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. Effective Time.
(d) The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder Company Stockholders in any manner or for any reason. This power of attorney authority granted to the Securityholder Representative shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the any principal pursuant to any applicable Law.
(d) The . Sxxxx Xxxxxxx hereby accepts his appointment as the initial Securityholder Representative may resign from its capacity as Securityholder Representative at any time Representative. Any decision, act, consent or instruction taken by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion this Section 11.18 on behalf of Company Stockholders (each, an “Securityholder Representative Authorized Action”) shall be final, binding and conclusive on Company Stockholders as fully as if such counselPersons had taken such Securityholder Representative Authorized Action.
Appears in 1 contract
Securityholder Representative. (a) Each Pursuant to the adoption of this Agreement by Company Common Stockholders representing greater than 50% of the outstanding shares of Company Common Stock, each Equity Holder will be deemed to have irrevocably appointed, authorized and empowered the Securityholder hereby appoints ACAS as the “Securityholder Representative” Representative to act as a representative for the benefit of each Equity Holder as the exclusive agent and attorney-in-fact with the power and authority to act on behalf of each Equity Holder in connection with and to facilitate the consummation of the Securityholders with Transactions (including the full Initial Merger and the Follow-On Merger), which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority:
(i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the Securityholders, deliver such waivers and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Initial Merger and the Follow-On Merger and other transactions contemplated hereby and thereby as the Securityholder Representative, in its sole discretion, deems propermay deem necessary or desirable, including any amendments or modifications to this Agreement or the other Transaction Agreements;
(ii) to enforce and protect the rights and interests of the Equity Holders and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Mergers and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders. Without limiting the generality of the foregoing, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary, and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder Representative shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions);
(iii) to refrain from enforcing any right of the Equity Holders arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the Initial Merger and the Follow-On Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) to give and receive all notices and communications to be given or received under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration;
(vi) to pay, release and/or distribute determine whether to deliver a Notice of Disagreement and to resolve any disputes regarding the Closing Statement; and
(vii) to make or all receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Reserve Account Equity Holders, including by using the Securityholder Representative Expense Amount (and any interest or otherwise earnings thereon) to pay Losses hereundersatisfy costs, each expenses and/or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements, with any balance of the Securityholder Representative Expense Amount not used for such purposes to be disbursed and paid, at such time as the Securityholder Representative determines, in its sole discretion, (vii) that no additional such costs, expenses or liabilities shall become due and payable, to adjust the Securityholder Allocation Percentage Equity Holders in accordance with Section 3.06(e), which, for the avoidance of doubt, shall not be prior to the determination of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation PercentagesFinal Merger Consideration.
(b) The Securityholders hereby agree severally Parent and the Merger Subs may rely upon all actions taken or omitted to indemnify be taken by the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement and the other Transaction Agreements (including any instructions with respect to the allocation or in connection herewith in such capacity; providedpayment of any consideration payable to the Equity Holders or former Equity Holders hereunder), that none all of the Securityholders which actions or omissions shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, legally binding upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this AgreementEquity Holders.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the grant of authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative provided for herein (i) is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by and survive the death, illnessincompetency, dissolution, disability, incapacity bankruptcy or other inability to act liquidation of any Equity Holder and (ii) shall survive the consummation of the principal pursuant to any applicable LawMergers and other transactions contemplated hereby and by the other Transaction Agreements.
(d) The All actions taken by the Securityholder Representative may resign from under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Mergers and other transactions contemplated hereby or thereby, unless otherwise instructed by the Securityholder Representative, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its capacity responsibilities as representative of the Equity Holders, the Equity Holders shall, within 10 days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time by written notice delivered time, all references herein or in any other agreement or instrument contemplated hereby to the Buyer Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reasonother agreements and instruments contemplated hereby and thereby, such vacancy including all actions and inactions permitted by this Section 10.15, shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be fully binding on all of the Securityholders and shall constitute the authorization of the Securityholdersthem.
(e) The By the execution of a Letter of Transmittal, each Equity Holder irrevocably shall agree that the Securityholder Representative shall not have no liability to any Equity Holder with respect to actions taken or omitted to be liable to the Buyer or the Securityholders taken in its capacity as the Securityholder Representative for and that the Securityholder Representative shall be under no obligation to take any liability action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal, each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. By the execution of a Letter of Transmittal, each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to indemnification from the Equity Holders against any loss, liability or for any error expenses arising out of judgment, or any act done or step actions taken or omitted by it believed by it to be taken in good faith or its capacity as the Securityholder Representative (except for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case those arising out of Securityholder Representative’s gross negligence or willful misconduct by itmisconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such counselcapacity.
Appears in 1 contract
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS as The Company Securityholders, by the “Securityholder Representative” to act as approval and adoption of this Agreement and the agent execution of the Securityholders Stockholder Consent and the letters of transmittal, shall be deemed to have designated Shareholder Representative Services LLC (together with the full power its permitted successors) as his, her or its representative and true and lawful agent and attorney-in-fact for purposes of (i) taking all action necessary to resolve all questionsconsummate the transactions contemplated hereby, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) or the defense and/or settlement of any claims for which the Company Securityholders may be required to execute and enter into, on behalf of the Securityholders, and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including indemnify Parent or any increase thereof other Indemnified Party pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions Article VII of this Agreement, (vii) giving and receiving all notices required to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with be given under this Agreement as or the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Escrow Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(biii) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), taking any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time additional action as is contemplated to be imposed upon, incurred taken by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none on behalf of the Company Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from by the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination terms of this Agreement.
(cb) The Buyer shall be fully protected in dealing with All decisions and actions by the Securityholder Representative, including any agreement between the Securityholder Representative under and Parent relating to the defense or settlement of any claims for which the Company Securityholders may be required to indemnify Parent pursuant to Article VII of this Agreement and may rely Agreement, shall be binding upon the authority all of the Company Securityholders, and no Company Securityholder Representative shall have the right to act on behalf of object, dissent, protest or otherwise contest the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Lawsame.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(ec) The Securityholder Representative shall not be liable have any Liability to any of the parties hereto or to the Buyer or the Company Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be hereunder as Securityholder Representative while acting in good faith and in the exercise of reasonable judgment, and any act done or for omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Company Securityholders shall severally and not jointly (based on each Company Securityholder’s Pro Rata Share) indemnify the Securityholder Representative and hold it harmless against any mistake in fact loss, Liability or law, expense incurred without gross negligence or for anything which it may do bad faith on the part of the Securityholder Representative and arising out of or refrain from doing in connection with this Agreement except the acceptance or administration of his duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs incurred by the Securityholder Representative. If not paid directly to the Securityholder Representative by the Company Securityholders, such losses, liabilities or expenses may be distributed to the Securityholder Representative, on behalf of the Company Securityholders, from the cash deposited in the case Indemnity Escrow Amount of the Escrow Fund that is otherwise distributable to Company Securityholders after the Survival Date (and not distributed or distributable to Parent or subject to a pending indemnification claim of Parent) pursuant to the terms hereof and of the Escrow Agreement, at the time of distribution; provided that while this section allows the Securityholder Representative to be paid from the Indemnity Escrow Amount of the Escrow Fund, this does not relieve the Company Securityholders from their obligation to indemnify the Securityholder Representative and hold it harmless against any loss, Liability or expense incurred without gross negligence or willful misconduct by it. The bad faith on the part of the Securityholder Representative, nor does it prevent the Securityholder Representative may seek the advice of reputable legal counsel in the event of from seeking any dispute remedies available to it at law or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion of such counselotherwise.
Appears in 1 contract
Samples: Merger Agreement (Vistaprint N.V.)
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS as the “Securityholder Representative” to act as the agent of the Securityholders with the full power (i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the Securityholders, and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions For purposes of this Agreement, (v) the Company and each Securityholder by virtue of the adoption and approval of this Agreement and approval of the Mergers and/or acceptance of any consideration pursuant to otherwise take such actions (this Agreement or refrain by approving of and adopting this Agreement, the Mergers and the Transaction Documents by the Required Stockholder Vote or the Letter of Transmittal and receiving the benefits thereof, have constituted, appointed and empowered effective from taking actions) and execute such documents (including any modificationsafter the date thereof the Securityholder Representative, waivers or amendments thereto) for the benefit of the Securityholders and as the exclusive agent and attorney-in-fact to act on the Securityholders’ behalf of each Securityholder, in connection with and to facilitate the consummation of the transactions contemplated by this Agreement, which shall include the power and authority to: (i) execute this Agreement and other agreements, documents and certificates pursuant to such agreements, including all amendments to this Agreement and such agreements, and take all actions required or permitted to be taken under this Agreement and such agreements; (ii) negotiate, execute and deliver such waivers, consents and amendments as the Securityholder Representative, in its sole discretion, deems propermay deem necessary or desirable; (iii) authorize or object to delivery to Parent of cash from the Adjustment Escrow Account; (iv) to deduct and/or hold back any funds that may be payable to the Securityholder Representative pursuant to the terms of this Agreement and the Escrow Agreement in order to pay any amount that may be payable by such Securityholder hereunder, in each case on a basis consistent with their Allocable Percentage of such funds; (v) enforce and protect the rights and interests of the Securityholder and to enforce and protect the rights and interests of such Persons arising out of or under or in any manner relating to this Agreement and the transactions provided for herein and therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement for and on behalf of the Securityholders, including consenting to, compromising or settling any such claims, conducting negotiations with Parent, the Company and their respective Representatives regarding such claims, and, in connection therewith, to: (A) assert any claim or institute any action, proceeding or investigation; (B) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Parent, the Company or any other Person, or by any Governmental Authority against the Securityholder Representative and/or any of the Securityholders, and receive process on behalf of any or all Securityholders in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Securityholder Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such claim, action, proceeding or investigation; (C) file any proofs of debt, claims and petitions as the Securityholder Representative may deem advisable or necessary; (D) settle or compromise any claims asserted under this Agreement; (E) file and prosecute appeals from any decision, judgment or award rendered in any such action, proceeding or investigation, it being understood that the Securityholder Representative shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions; and (F) use the Expense Fund Amount to satisfy any expenses incurred by the Securityholder Representative in connection with fulfilling its obligations hereunder from and after the Closing Date; (vi) to pay, release and/or distribute refrain from enforcing any or all right of the Reserve Account Securityholders arising out of or under or in any manner relating to this Agreement; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Securityholders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative; (vii) make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to pay Losses hereunderdo any and all things and to take any and all action that the Securityholder Representative, each in its sole and absolute discretion, (vii) may consider necessary or proper or convenient in connection with or to adjust carry out the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and transactions contemplated by this Agreement; (viii) to perform all engage special counsel, accountants and other advisors and incur such other expenses on behalf of the functions Securityholders in connection with any matter arising under this Agreement; and (ix) collect, hold and disburse the Expense Fund Amount and any other amounts due and payable to the Securityholder Representative for the benefit of the Securityholders, in accordance with the terms of this Agreement.
(b) By virtue of the adoption and approval of this Agreement and approval of the Mergers or by signing the Stockholder Written Consent or the Letter of Transmittal and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Mergers, each Securityholder grants unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the specific and limited matters described above, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that the Securityholder Representative may lawfully do or cause to be done by virtue hereof. Each Securityholder further acknowledges and agrees that, upon execution of this Agreement, with respect to any delivery by the Securityholder Representative of any documents executed by the Securityholder Representative pursuant to this Section 11.15, such Securityholder shall be bound by such documents as fully as if such Securityholder had executed and delivered such documents. No bond shall be required of the Securityholder Representative under this AgreementRepresentative. The Buyer is entitled to rely on the acts Any and agreements of all actions taken by the Securityholder Representative as on behalf of the acts Securityholders shall be deemed to be facts ascertainable outside this Agreement and agreements shall be binding on all of the Securityholders. The Securityholders shall cooperate with the Securityholder Representative and any accountants, attorneys or other agents whom the Securityholder Representative may retain to assist in carrying out the Securityholder Representative duties hereunder. The parties acknowledge that the Securityholder Representative obligations under this Section 11.15 are solely as a representative of the Securityholders as set forth in this Agreement. All notices, counter notices, or other instruments or designations delivered by any Securityholders or the Securityholder Representative shall not be effective unless, but shall be effective if, signed by the Securityholder Representative, and if not, such document shall have no force and effect whatsoever hereunder and Parent and any other Person may proceed without regard to any such document.
(c) The Securityholder Representative shall be entitled to retain counsel (i) receive reimbursement from the Securityholders for all expenses and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as charges incurred by the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its the performance of its their duties and the fulfillment of their obligations under this Agreement, and (ii) be indemnified by the Securityholders. In connection with this Agreement, and in exercising or failing to exercise all such fees or any of the powers conferred upon the Securityholder Representative hereunder, (A) the Securityholder Representative shall incur no responsibility whatsoever to any Securityholders by reason of any error in judgment or other act or omission performed or omitted hereunder, excepting only responsibility for any act or failure to act which is finally judicially determined to constitute willful misconduct, and expenses incurred by (B) the Securityholder Representative shall be borne pro rata by entitled to rely on the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify 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 Securityholder Representative (pursuant to such advice shall in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold no event subject the Securityholder Representative (in its capacity as such) harmless from (to liability to any Securityholders. Each Securityholder shall indemnify, severally and not jointly, based on such Securityholders' Allocable Percentage, the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and against all liabilities, obligations, losses, damages, penaltiesliabilities, actionsclaims, judgmentsobligations, suitscosts and expenses, costsincluding reasonable attorneys', expenses accountants' and other experts' fees and the amount of any judgment against them, of any nature whatsoever (including any and all expense whatsoever reasonably incurred in investigating, preparing or disbursements of whatever kind which may at defending against any time be imposed uponlitigation, incurred by commenced or asserted against the Securityholder threatened or any claims whatsoever) ("Representative in such capacity in any way relating to or Losses"), arising out of its action or failure to take action pursuant to this Agreement or in connection herewith with this Agreement and any related agreements, in each case as such capacityRepresentative Loss is suffered or incurred; provided, provided that none of in the Securityholders shall be liable for event that any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from Representative Loss is finally adjudicated to have been caused by the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative maywill reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. Representative Losses may be recovered by the Securityholder Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided that while the Securityholder Representative may be paid from the aforementioned sources of funds, upon prior this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or contemporaneous written noticeincurred. In no event will the Securityholder Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, offset any amounts determined by it restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be owed applicable to the indemnities provided to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall foregoing indemnities will survive the Closing, the resignation or removal of the Securityholder Representative or the termination of this Agreement.
(cd) The Buyer shall be fully protected in dealing with All of the indemnities, immunities and powers granted to the Securityholder Representative under this Agreement and may rely upon shall survive the Closing and/or any termination of this Agreement.
(e) The grant of authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative provided for herein (i) is coupled with an interest and shall be irrevocable by and survive the death, incompetency, bankruptcy or liquidation of any Securityholder and (ii) shall survive the consummation of the transactions contemplated by this Agreement, and any action taken by the Securityholder Representative pursuant to the authority granted in this Agreement shall be effective and absolutely binding on each Securityholder notwithstanding any manner contrary action of or direction from such Securityholder and no Securityholder shall have any right to object, dissent, protest or otherwise contest the same, except for actions or omissions of the Securityholder Representative constituting willful misconduct.
(f) At a time determined by the Securityholder Representative in its sole discretion, the Securityholder Representative shall distribute to the Paying Agent (or if the Paying Agent is no longer engaged, the Surviving Entity) or in the case of payments to holders of Company Options the Surviving Entity, for further distribution to the applicable Securityholders in accordance with their respective Allocable Percentage, any portion of the Expense Fund that is unused less any reserve that the Securityholder Representative, in good faith, reasonably determines is necessary for any out of pocket costs that the Securityholder Representative may reasonably expect to arise.
(g) Upon thirty (30) days' prior written notice to the Surviving Entity, the Securityholder Representative, shall have the right to resign its position as Securityholder Representative at its sole discretion for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder resigns or for any error of judgment, or any act done or step taken or omitted by it believed by it ceases to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability function in its capacity as Securityholder Representative for any reason whatsoever (including death or disability), then the Stockholders with an aggregate Allocable Percentage of greater than 50.0% shall, as promptly as reasonably practicable, elect a new Securityholder Representative and shall have sent notice and a copy of the duly executed written consent appointing such new Securityholder Representative to Parent, and the Paying Agent and provided evidence that such alternative replacement Securityholder Representative has accepted such appointment.
(h) Parent acknowledges and agrees that the Securityholder Representative is a party to this Agreement solely to perform certain administrative functions in connection with the consummation of the transactions contemplated hereby. Accordingly, each of Parent and the Merger Subs acknowledges and agrees that the Securityholder Representative shall have no liability to, and shall not be liable for any losses of, any of Parent or the Merger Subs in connection with any obligations of the Securityholder Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby, except (i) to the Buyer or the Securityholders and extent such losses shall be fully protected proven to be the direct result of willful misconduct by the Securityholder Representative in connection with the performance of its obligations hereunder, and (ii) with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion willful breaches of such counselSection 11.15(c).
Appears in 1 contract
Samples: Merger Agreement (Inotiv, Inc.)
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS as the “Securityholder Representative” to act as the agent By virtue of the Securityholders with execution and delivery of a Release, and without any further action of any of the full power (i) Indemnity Stockholders or the Company, each of the Indemnity Stockholders shall be deemed to resolve all questionshave agreed to appoint the Securityholder Representative as their exclusive agent and attorney-in-fact, disputes, conflicts as their sole and controversies concerning Losses as provided in this Article 11, (ii) to execute exclusive representative for and enter into, on behalf of the SecurityholdersIndemnity Stockholders and to receive and distribute payments, to give and receive notices and communications, to authorize payment to any TheMaven Indemnified Party from the Indemnity Escrow and otherwise in satisfaction of indemnification claims by any TheMaven Indemnified Party pursuant to Section 10 of this Agreement, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any indemnification claim hereunder or any dispute between any TheMaven Indemnified Party and any Indemnity Stockholders, in each case relating to this Agreement, the Escrow Agreement or the Merger, and to take all other actions thereunder for and on their behalf, including but not limited that are either (i) necessary or appropriate in the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions judgment of the Securityholder Representative under for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement. The Buyer is entitled to rely on Notwithstanding the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreementforegoing, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative no obligation to act on behalf of the SecurityholdersIndemnity Stockholders, except as expressly provided in this Agreement and in the Escrow Agreement and, for the avoidance of doubt, there are no obligations of the Securityholder Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedule. Any payment The Securityholder Representative may resign at any time. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholder Representative and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required of the Securityholder Representative. Other than in connection with any claim pursued by a TheMaven Indemnified Party directly against an Indemnity Stockholder, notices or communications to or from the Buyer Securityholder Representative shall constitute notice to or from the Indemnity Stockholders. The powers, immunities and rights to indemnification granted to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is hereunder: (i) are coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by and survive the death, illnessincompetence, dissolutionbankruptcy or liquidation of any Indemnity Stockholder and shall be binding on any successor thereto, disabilityand (ii) shall survive the delivery of an assignment by any Indemnity Stockholder of the whole or any fraction of his, incapacity her or its interest in the Indemnity Escrow.
(b) The Securityholder Representative may (i) rely and act upon any statement, report or opinion prepared by or any advice received from the auditors, counsel or other inability to act professional advisors of the principal Securityholder Representative, (ii) rely upon any signature believed by him to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Indemnity Stockholder or other party. Absent fraud, gross negligence or willful misconduct, neither the Securityholder Representative nor his Representatives shall be responsible or held liable, in each case to any Indemnity Stockholder for any loss or damage resulting from so relying or from acting in accordance with this Agreement or the Escrow Agreement, in each case, as the Securityholder Representative.
(c) A decision, act, consent or instruction of the Securityholder Representative, including an amendment of any provision of this Agreement pursuant to Section 11.12 of this Agreement, shall constitute a decision of the Indemnity Stockholders and shall be final, binding and conclusive upon the Indemnity Stockholders and shall be binding on their successors as if expressly confirmed and ratified in writing, and TheMaven may rely upon any applicable Lawsuch decision, act, consent or instruction of the Securityholder Representative as being the decision, act, consent or instruction of the Indemnity Stockholders. All defenses which may be available to any Indemnity Stockholder to contest, negate or disaffirm the action of the Securityholder Representative taken in good faith under this Agreement or the Escrow Agreement are waived. TheMaven is hereby relieved from any liability to any person for any acts done by TheMaven in accordance with such decision, act, consent or instruction of the Securityholder Representative.
(d) The Each Indemnity Stockholder agrees (i) to jointly and severally indemnify and hold harmless the Securityholder Representative from and against any and all losses, claims, damages, costs, judgements, fines, amounts paid in settlement, expenses (including, without limitation, legal fees and expenses on a full indemnity basis, costs of counsel and other skilled professionals and in connection with seeking recovery from insurers) and liabilities (collectively, such losses, claims, damages, costs, expenses and liabilities being the “Indemnified Liabilities”) to which Securityholder Representative may resign become subject, insofar as such Indemnified Liabilities (or actions, suits, or proceedings, including any inquiry or investigation or claim, in respect thereof) arise out of, in any way relate to, or result from its capacity acting as Securityholder Representative at under this Agreement or under the Escrow Agreement and (ii) to reimburse the Securityholder Representative upon demand for all legal or other expenses, if any, incurred in connection with its acting as Securityholder Representative, other than in the case of fraud, gross negligence or willful misconduct, on condition that the Securityholder Representative has acted in compliance with this Agreement. Such Indemnified Liabilities may be recovered, first, from any time by written notice delivered distribution of the Indemnity Escrow otherwise distributable to the Buyer and Indemnity Stockholders at the Securityholderstime of distribution and, second, directly from the Indemnity Stockholders. If there is a vacancy at any time in The Indemnity Stockholders acknowledge that the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable required to expend or risk his own funds or otherwise incur any financial liability in the Buyer exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the Securityholders in its capacity as transactions contemplated hereby. Furthermore, the Securityholder Representative for shall not be required to take any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in action unless the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute has been provided with funds, security or question as to the construction of any of the provisions of this Agreement or its duties hereunderindemnities which, and it shall incur no liability in its capacity as determination, are sufficient to protect the Securityholder Representative to against the Buyer or costs, expenses and liabilities which may be incurred by the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it Securityholder Representative in good faith in accordance with the opinion of performing such counselactions.
Appears in 1 contract
Samples: Merger Agreement (theMaven, Inc.)
Securityholder Representative. (a) Each The parties have agreed that it is desirable to designate a representative to act on behalf of Blocker Holder and the Company Unitholders (the “Securityholders”). By voting in favor of the adoption of the Transactions or participating therein and receiving the benefits thereof, including the right to receive the consideration payable in connection herewith, each Securityholder shall be deemed to have approved the designation of, and hereby appoints ACAS designates, Shareholder Representative Services LLC as its representative, agent and attorney-in-fact for all purposes in connection with this Agreement and the agreements ancillary hereto (the “Securityholder Representative” ”). The Securityholders hereby designate Shareholder Representative Services LLC as the initial Securityholder Representative. The Securityholder Representative may resign at any time, and the Securityholder Representative may be removed by the affirmative vote of the Blocker Holder and persons which collectively owned more than fifty percent (50%) membership interests of the Company as of immediately prior to the Second Effective Time, voting together as a single class (the “Majority Holders”). In the event that a Securityholder Representative has resigned or been removed, a new Securityholder Representative shall be appointed by a vote of the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Securityholder Representative. The Securityholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to it under this Agreement and the agreements ancillary hereto; provided, however, that the Securityholder Representative shall have no obligation to act as the agent on behalf of the Securityholders with except as expressly provided herein. Without limiting the generality of the foregoing, the Securityholder Representative shall have full power power, authority and discretion to, after the Second Effective Time (i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) to execute negotiate and enter into, into amendments to this Agreement for and on behalf of the Securityholders, (ii) give and receive notices and other communications relating to take all actions thereunder for this Agreement and the Transactions on their behalf, including but not limited behalf of the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided hereinSecurityholder, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actionsany actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and execute such documents (including any modifications, waivers disputes arising out of or amendments thereto) on the Securityholders’ behalf in connection with related to this Agreement as and the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) Transactions and (viiiiv) to perform take all of actions necessary or appropriate in the functions judgment of the Securityholder Representative under this Agreementfor the accomplishment of the foregoing, including with respect to any determination or dispute related to the Contingency Consideration. The Buyer is entitled Securityholder Representative shall have no liability to rely on NAC, ParentCo, Blocker, Merger Sub Corp, Merger Sub LLC, the acts and agreements Company or the Surviving Company or any Securityholder with respect to actions taken or omitted to be taken, except to the extent directly arising out of the Securityholder Representative as the acts and agreements of the SecurityholdersRepresentative’s gross negligence or willful misconduct. The Securityholder Representative shall be entitled to retain counsel engage such counsel, experts and to incur such reasonable expenses (including court costs other agents and reasonable attorney’s fees and expenses) consultants as the Securityholder Representative deems to be reasonably it shall deem necessary or appropriate in connection with exercising its performance powers and performing its function hereunder and shall be entitled to conclusively rely on the opinions and advice of such persons and shall have no liability for such reliance. The Securityholder Representative shall be entitled to reimbursement solely from the Securityholders (pro rata in proportion to Cash Consideration and ParentCo Common Shares issuable to such Securityholder at the Closing as set forth on the Payment Spreadsheet) for all reasonable expenses, disbursements and advances (including fees and disbursements of its obligations under this Agreementcounsel, experts and all such fees other agents and expenses consultants) incurred by the Securityholder Representative shall be borne Representative. The Securityholders will (pro rata by in proportion to Cash Consideration and ParentCo Common Shares issuable to such Securityholder at the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(bClosing as set forth on the Payment Spreadsheet) The Securityholders hereby agree severally to indemnify indemnify, defend and hold harmless the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, from and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), against any and all losses, liabilities, obligations, losses, damages, claims, penalties, fines, forfeitures, actions, judgmentsfees, suitscosts and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, costsduplication and shipment) (collectively, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder “Representative in such capacity in any way relating to or Losses”) arising out of its action or failure to take action pursuant to this Agreement or in connection herewith with the Securityholder Representative’s execution and performance of this Agreement, in each case as such capacityRepresentative Loss is suffered or incurred; provided, that none of in the Securityholders shall be liable for event that any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior will reimburse each Securityholder (pro rata in proportion to Cash Consideration and ParentCo Common Shares issuable to such Securityholder at the Closing as set forth on the Payment Spreadsheet) the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or contemporaneous written notice, offset any amounts determined by it to be owed willful misconduct. If not paid directly to the Securityholder Representative against by the Reserve Account and against Securityholders, any amounts such Representative Losses may be recovered by the Securityholder Representative from the funds in the Expense Fund; provided, that while this section allows the Securityholder Representative to be paid from the aforementioned sources of funds, 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 Securityholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Securityholder Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of the Securityholders hereunder. The agreements set forth elsewhere in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer shall Agreement are not intended to be fully protected in dealing with applicable to the indemnities provided to the Securityholder Representative under this Agreement section. The Securityholders acknowledge and may rely upon agree that the authority foregoing indemnities will survive the Closing, the resignation or removal of the Securityholder Representative or the termination of this Agreement. Upon the Closing, the Company will wire an amount of $200,000 (the “Expense Fund”) to act the Securityholder Representative, which will be used for the purposes of paying directly, or reimbursing the Securityholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Securityholders will not receive any interest or earnings on behalf of the Securityholders. Any payment by the Buyer Expense Fund and irrevocably transfer and assign to the Securityholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Securityholder Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Securityholder Representative’s responsibilities, the Securityholder Representative will deliver any remaining balance of the Expense Fund to the extent authorized under this Agreement shall be considered a payment by the Buyer Exchange Agent for further distribution to the Securityholders. The appointment of For tax purposes, the Securityholder Representative is coupled with an interest Expense Fund will be treated as having been received and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed voluntarily set aside by the Securityholders entitled to a majority at the time of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the SecurityholdersClosing.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion of such counsel.
Appears in 1 contract
Samples: Business Combination Agreement (Nebula Acquisition Corp)
Securityholder Representative. (a) Each The Securityholder hereby appoints ACAS as the “Securityholder Representative” to Representative shall act as the agent representative of the Securityholders in respect of all matters arising under this Agreement or any of the Ancillary Documents, and shall be authorized to act, or refrain from acting, with respect to any actions to be taken by or on behalf of any Securityholder or the full power (i) Securityholder Representative, including to resolve all questionsenforce any rights granted to any Securityholder hereunder, disputesin each case as the Securityholder Representative believes is necessary or appropriate under this Agreement and the Ancillary Documents, conflicts for and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the Securityholders, including taking any and to take all actions thereunder for and on their behalfthat may be necessary or desirable, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as determined by the Securityholder Representative, in its sole discretion, deems properin connection with negotiating or entering into settlements and compromises of any claim for indemnification pursuant to Article VII hereof. The Securityholders shall be bound by all such actions taken by the Securityholder Representative and no Securityholder shall be permitted to take any such actions. The Securityholder Representative is serving as the Securityholder Representative solely for purposes of administrative convenience, and is not personally liable (viexcept in its capacity as a Securityholder hereunder) to pay, release and/or distribute for any or all of the Reserve Account obligations of the Company, Newco, any of their Subsidiaries or otherwise to pay Losses any of Securityholders hereunder, each in and Parent (on behalf of itself and its sole discretion, (viiAffiliates) agrees that it will not look to adjust the Securityholder Allocation Percentage of Representative or the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions underlying assets of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on for the acts and agreements satisfaction of any obligations of the Securityholder Representative as the acts and agreements Company, Newco, any of their respective Subsidiaries or any of the Securityholders. The Securityholder Representative shall not be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems liable for any error of judgment, or any action taken, suffered or omitted to be reasonably necessary or appropriate taken, in connection with its the performance of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative of the Securityholder Representative’s duties or the exercise by the Securityholder Representative of the Securityholder Representative’s rights and remedies under this Agreement or any Ancillary Document, except in the case of its bad faith or willful misconduct. No bond shall be borne pro rata required of the Securityholder Representative. The Securityholder Representative may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Securityholder Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or any Ancillary Document. Without limiting the generality of the foregoing, the Securityholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Ancillary Documents, and to consent to any amendment hereof or thereof on behalf of all Securityholders based upon and their respective initial successors. Parent shall be entitled to rely on all statements, representations, decisions of, and actions taken or omitted to be taken by, the Securityholder Allocation PercentagesRepresentative relating to this Agreement or any Ancillary Document.
(b) The Securityholders hereby agree severally to will indemnify and hold harmless the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, from and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or Losses arising out of its action or failure to take action pursuant to this Agreement or in connection herewith with the Securityholder Representative’s execution and performance of this Agreement and the Ancillary Document, in each case as such capacityLoss is suffered or incurred; provided, that none of in the Securityholders shall be liable for event that any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior will reimburse the Securityholders the amount of such indemnified Loss to the extent attributable to such gross negligence or contemporaneous written notice, offset any amounts determined by it to be owed to willful misconduct. In no event will the Securityholder Representative against the Reserve Account and against any amounts be required to be paid to advance its own funds on behalf of the Securityholders hereunderor otherwise. The agreements in this Section 11.04 shall Securityholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Securityholder Representative or the termination of this Agreement.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written giving 30 days’ notice delivered to the Buyer Parent and the Securityholders. If there is a vacancy at any time ; provided, that (i) in the position of Securityholder Representative for any reason, such vacancy no event shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability resign without the prior written consent of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel Parent and (ii) in the event of any dispute the resignation or question as removal of the Securityholder Representative, a new Securityholder Representative (who shall be reasonably acceptable to Parent) shall be appointed by the vote or written consent of a majority-in-interest of the Securityholders immediately prior to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion of such counselEffective Time.
Appears in 1 contract
Samples: Agreement and Plan of Merger (B. Riley Principal Merger Corp. II)
Securityholder Representative. (a) Each By virtue of the approval of the Merger and this Agreement by the Securityholders and without any further action of any of the Securityholders or the Company, (i) Fortis Advisors LLC shall serve as the Securityholder hereby appoints ACAS Representative, and in such capacity as the exclusive agent and attorney-in-fact for and on behalf of the Securityholders other than the Dissenting Stockholders, if any (the “Securityholder Representative” to act as the agent of the Securityholders with the full power (i”) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) each Securityholder (A) agrees that all actions taken by the Securityholder Representative under this Agreement or the Escrow Agreement shall be binding upon such Securityholder and its successors as if expressly confirmed and ratified in writing by such Securityholder, and (B) waives any and all defenses which may be available to execute and enter intocontest, negate or disaffirm the action of the Securityholder Representative taken in good faith under this Agreement or the Escrow Agreement. The Securityholder Representative shall, on behalf of the Securityholders, and to :
(i) take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) action permitted in connection with Losses as provided hereinthe implementation of those provisions of this Agreement and the Escrow Agreement that require or permit action by the Securityholder Representative;
(ii) take all action permitted in connection with the defense and/or settlement of any and all claims for which the Securityholders may be required to provide indemnification pursuant to SECTION 11 (Indemnification) hereof (including rejecting, contesting, negotiating, settling and resolving any such claims) and any claims that may be made against the Escrow Amount;
(iii) comply with Orders of courts and determinations and awards of arbitrators with respect to negotiate and/or settle all claims under this Agreement, claims;
(iv) review and take action with respect to Tax Returns or other Tax matters pursuant to SECTION 6;
(v) review and take action pursuant to Sections 1.7(c) (Post-Closing True-Up) and 1.7(d) (Resolution of Disputes) or any;
(vi) give and receive from the Buyer monies payable all notices and service of process required or permitted to be given or received by the Securityholders or the Securityholder Representative under this Agreement or the Escrow Agreement;
(vii) execute and deliver all amendments and waivers to this Agreement and the Escrow Agreement that the Securityholder Representative deemed necessary or appropriate, whether prior to, at or after the Closing; and
(viii) take any and all such additional action or refrain from doing any further act or deed as is contemplated to be taken by or on behalf of the Securityholders by the terms of this Agreement or of the Escrow Agreement or as may be necessary or appropriate in the judgment of the Securityholder Representative for the accomplishment of the foregoing.
(b) All notices provided to and/or legal process served upon the Securityholder Representative in accordance with this Agreement or the provisions of this AgreementEscrow Agreement shall be deemed to be provided to and/or served upon the Securityholders and shall be conclusive and binding upon the Securityholders. All decisions, (v) to otherwise take such actions (or refrain from taking actions) , agreements, and execute such documents (instructions by the Securityholder Representative, including any modificationsconsent, waivers waiver, or amendments theretoagreement between the Securityholder Representative and any Buyer Indemnitee relating to the defense or settlement of any claim for which the Securityholders may be required to provide indemnification pursuant to SECTION 11 (Indemnification) on hereof, shall be conclusive and binding upon the Securityholders’ behalf ; and the Buyer, each other Buyer Indemnitee and the Escrow Agent shall be entitled to rely conclusively thereon. The Buyer, each other Buyer Indemnitee and the Escrow Agent shall have no duty to inquire into the authority of any person reasonably believed to be the Securityholder Representative and no responsibility or liability for any action or omission thereof, and no party shall have any cause of action against the Buyer, any other Buyer Indemnitee or the Escrow Agent for any action or omission by such party in connection with this Agreement reliance upon the instructions or decisions of any person reasonably believed to be the Securityholder Representative.
(c) In the event that more than one Person shall at any time serve collectively as the Securityholder Representative, decisions of such Persons shall, as between them and with respect to the rights of the Securityholders in its sole discretionrelation to the Securityholder Representative, deems properbe made by majority vote; provided, however that they shall designate a single Person as “Securityholder Representative” for all purposes involving the Buyer, any other Buyer Indemnitee, or the Escrow Agent.
(d) The Securityholder Representative is authorized to act on behalf of the Securityholders notwithstanding any dispute or disagreement among the Securityholders. In taking any actions as Securityholder Representative, the Securityholder Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any person he or it reasonably believes to be authorized thereunto. The Securityholder Representative shall be entitled to: (i) rely upon the Allocation Certificate, (viii) rely upon any signature believed by it to paybe genuine, release and/or distribute any or all and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the Reserve Account applicable Securityholder or otherwise to pay Losses other party. The Securityholder Representative may, in all questions arising hereunder, each in its sole discretionrely on the advice of counsel, (vii) to adjust and the Securityholder Allocation Percentage Representative shall not be liable to any Securityholder for anything done, omitted or suffered in good faith by the Securityholder Representative based on such advice. The Securityholder Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and/or the Escrow Agreement and no implied covenants or obligations shall be read into this Agreement or the Escrow Agreement against the Securityholder Representative and for purposes of clarity, there are no obligations of the Reserve Account otherwise payable Securityholder Representative in any other Ancillary Agreement, schedule, exhibit or the Company Disclosure Schedule.
(e) As of the Effective Time, Buyer shall cause the Paying Agent to wire to the Securityholder Representative the Expense Fund, which will be held by the Securityholder Representative as agent and for the benefit of the Securityholders and will be used for the purposes of paying any particular professional fees and expenses of any attorney, accountant or other advisors retained by the Securityholder Representative and other reasonable out-of-pocket expenses incurred by the Securityholder Representative in connection with the performance of the Securityholder Representative’s duties under this Agreement (“Representative Expenses”). The Securityholder Representative will hold the Expense Fund separate from its corporate funds and will not voluntarily make it available to its creditors in the event of bankruptcy. The Securityholder Representative is not providing any investment supervision, recommendations or advice. The Securityholder Representative shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholder Representative is not acting as a withholding agent or in any similar capacity in connection with the payment of Losses resulting from breaches of such Securityholder’s representationsExpense Fund, warrantiesand has no tax reporting or income distribution obligations hereunder. As soon as reasonably determined by Securityholder Representative that the Expense Fund is no longer required to be withheld, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The shall distribute the remaining Expense Fund (if any) to the Escrow Agent (or directly to the Paying Agent, Buyer is entitled or Surviving Corporation, if so instructed) for further distribution to rely on the acts and agreements of Securityholders.
(f) Certain Securityholders have entered into a letter agreement with the Securityholder Representative to provide direction to the Securityholder Representative in connection with the performance of its services under this Agreement and the Escrow Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the acts “Advisory Group”). Neither the Securityholder Representative (together with its members, managers, directors, officers, contractors, agents and agreements employees) nor any member of the SecurityholdersAdvisory Group (collectively, the “Securityholder Representative Group”), shall have any liability to any Securityholder for any action taken, suffered or omitted by it as Securityholder Representative Group hereunder, under the Escrow Agreement or under any Securityholder Representative engagement agreement without gross negligence or willful misconduct. The Securityholders shall, in accordance with their respective Pro Rata Shares, indemnify, defend and hold the Securityholder Representative Group harmless from and against any loss, claim, damage, Tax, Liability, cost, fee and expense (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement that may be incurred or paid by the Securityholder Representative arising out of or in connection with the acceptance or administration of its duties (except as caused by the Securityholder Representative’s gross negligence or willful misconduct), including the legal costs and expenses of defending the Securityholder Representative Group against any claim or Liability in connection with the performance of its duties, to the extent such losses, damages, Taxes, Liabilities and expenses exceed the Expense Fund. The Securityholders will not receive any interest or earnings on the Expense Fund. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as recover from the Securityholder Stockholders any Representative deems to be Expenses reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata in connection with actions taken by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such)pursuant to the terms of this Agreement, on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Escrow Agreement or under any Securityholder Representative (in its capacity as such) harmless from (and engagement agreement, without the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), requirement of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses consent or disbursements of whatever kind which may at approval by Buyer or any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none other Person. All of the Securityholders shall be liable for any portion of such liabilitiesindemnities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed immunities and powers granted to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in under this Section 11.04 Agreement shall survive the Merger or any termination of this Agreement.
(cg) The Buyer If not paid directly to the Securityholder Representative by the Securityholders, the Representative Expenses shall be fully protected satisfied (i) from the Expense Fund, (ii) to the extent the amount of the Representative Expenses exceeds the amounts then available in dealing the Expense Fund, from any amounts payable to the Stockholders from the Escrow Amount solely to the extent the Securityholders would otherwise then be paid such amounts from the Escrow Amount in accordance with the terms of this Agreement and the Escrow Agreement (as applicable) and (iii) to the extent the amount of the Representative Expenses exceeds amounts immediately available to the Securityholder Representative under (i) and (ii), from each Securityholder, severally and not jointly and in proportion to its Pro Rata Share; provided that while this Agreement and may rely upon the authority of section allows the Securityholder Representative to act on behalf be paid from the Expense Fund and the Escrow Amount, this does not relieve the Securityholders from their obligation to promptly pay such Representative Expenses as they are suffered or incurred, nor does it prevent the Securityholder Representative from seeking any remedies available to it at law or otherwise. The Securityholders acknowledge that the Securityholder 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 administration of its duties.
(h) The Securityholder Representative shall have the power to designate its successor hereunder. In the event that the Securityholder Representative resigns from such position or is unable to continue in such position without having designated a successor, Securityholders holding among them the rights to receive at least a majority of the amount then remaining in the Escrow Amount to be distributed to the Securityholders (or, if no Escrow Amount remains, representing a majority in interest of the Pro Rata Shares) (the “Majority Holders”) shall promptly appoint another representative to fill such vacancy, and such substituted representative shall be deemed to be the Securityholder Representative for all purposes of this Agreement; provided that a resigning Securityholder Representative shall continue to perform its duties and obligations until its successor is appointed and has become a party to this Agreement and the Escrow Agreement. In the absence of such appointment, the Securityholder Representative or the Buyer may apply to a court of competent jurisdiction for the appointment of a successor Securityholder Representative, and the costs, expenses and reasonable attorneys’ fees incurred in connection with such proceeding shall be paid from the Expense Fund or, to the extent exhausted, the Securityholders. Any payment by The Securityholder Representative may be removed at any time upon the Buyer written consent of the Majority Holders with not less than thirty (30) days’ prior written notice to the Buyer; provided however, that a successor Securityholder Representative must be concurrently appointed and become a party to this Agreement and the Escrow Agreement. The immunities and rights to indemnification shall survive the resignation or removal of Securityholder Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(i) The provisions of this Section 13.15 (including the powers, immunities and rights to indemnification granted to the Securityholder Representative to and the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is Advisory Group hereunder: (i) are independent and severable, are irrevocable and coupled with an interest and shall be irrevocable by enforceable notwithstanding any rights or remedies that any Securityholder may have in any manner or for any reason. This power of attorney connection with the Transactions, (ii) shall not be affected by irrevocable and survive the death, illnessincompetence, dissolution, disability, incapacity bankruptcy or other inability to act liquidation of the principal pursuant to any applicable Law.
(d) The respective Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all any successor thereto, and (iii) shall survive the delivery of an assignment by any Securityholder of the Securityholders and shall constitute whole or any fraction of his, her or its interest in the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative Escrow Amount. Remedies available at Law for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any breach of the provisions of this Agreement or its duties hereunderSection 13.15 may be inadequate; therefore, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and each other Buyer Indemnitee shall be fully protected with respect entitled to seek temporary and permanent injunctive relief without the necessity of proving damages or posting any bond if such person brings an action taken, omitted or suffered by it in good faith in accordance with proceeding to enforce the opinion provisions of such counselthis Section 13.15.
Appears in 1 contract
Securityholder Representative. (a) Each By virtue of the adoption of this Agreement and the approval of the Mergers and the other Transactions by the Requisite Stockholder Approval, each of the Securityholders shall have irrevocably constituted and appointed, upon the Effective Time (and by its execution of this Agreement as Securityholder Representative, Shareholder Representative Services LLC hereby appoints ACAS accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Securityholder Representative” to act as the agent ”), of the Securityholders receiving consideration hereunder to act in the name, place and stead of the Securityholders in connection with the full power Transactions, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Securityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Securityholder Representative shall deem necessary or appropriate in connection with the Transactions, including the power:
(i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided act for the Securityholders with regard to matters pertaining to indemnification referred to in this Article 11Agreement, including the power to compromise any indemnity claim on behalf of the Securityholders and to transact matters of litigation or other Proceedings, with respect to any funds to be released from the Indemnity Escrow Fund (but, for clarity, not including any Damages in excess of funds then remaining in the Indemnity Escrow Fund);
(ii) to execute and enter intodeliver all amendments, on behalf of the Securityholderswaivers, ancillary agreements, stock powers, certificates and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as that the Securityholder Representative deems to be reasonably necessary or appropriate in connection with the consummation of the Transactions;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Securityholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Securityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Securityholders that the Securityholder Representative deems necessary or appropriate in its performance sole discretion relating to the subject matter of its obligations this Agreement as fully and completely as the Securityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Company by the Company Stockholders holding at least a majority of outstanding shares of Company Common Stock (in its capacity on an as-converted to Company Common Stock basis) as such)of immediately prior to the Effective Time. Parent, on a pro rata basis based the Surviving Company and any other Person may conclusively and absolutely rely, without inquiry, upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements action of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in all matters referred to herein. The Securityholder Representative shall act for the Securityholders on all of the matters set forth in this Agreement in the manner the Securityholder Representative believes to be in the best interest of the Securityholders and consistent with the obligations under this Agreement, but neither the Securityholder Representative nor any member of the Securityholder Representative’s Advisory Committee (the “Advisory Committee”) shall be responsible to the Securityholders for any Damages the Securityholders may suffer by the performance of its duties under this Agreement, other than Damages arising from willful violation of the law or gross negligence in the performance of the duties of the Stockholder Representative or such capacity in member of the Advisory Committee, as applicable, under this Agreement. The Indemnitors will indemnify, defend and hold harmless the Securityholder Representative and each member of the Advisory Committee from and against any way and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the reasonable, documented out-of-pocket fees and expenses of counsel and experts and their staffs and relating to or document location, duplication and shipment) (collectively, “Representative Losses”) arising out of its action or failure to take action pursuant to this Agreement or in connection herewith with the Securityholder Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such capacityRepresentative Loss is suffered or incurred; providedprovided that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the fraud, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to or any member of the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d))Advisory Committee, the Securityholder Representative mayor such member of the Advisory Committee will reimburse the Indemnitors the amount of such indemnified Representative Loss to the extent attributable to such fraud, upon prior gross negligence or contemporaneous written notice, offset any amounts determined by it to be owed willful misconduct. If not paid directly to the Securityholder Representative against or such member of the Reserve Account and against Advisory Committee, as applicable, by the Indemnitors, any such Representative Losses may be recovered by the Securityholder Representative or such member of the Advisory Committee, as applicable, from the funds in the Securityholder Expense Fund at such time as remaining amounts would otherwise be distributable to the Indemnitors; provided, that while this section allows the Securityholder Representative or any member of the Advisory Committee, as applicable, to be paid from the aforementioned sources of funds, this does not relieve the Indemnitors from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Securityholder Representative or any member of the Advisory Committee, as applicable from seeking any remedies available to it at law or otherwise. In no event will the Securityholder Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders hereunderset forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Securityholder Representative under this Section 11.01(b). The agreements in this Section 11.04 shall foregoing indemnities will survive the Closing or the resignation or removal of the Securityholder Representative or the termination of this Agreement.
(c) The Buyer Securityholder Representative shall be fully protected in dealing with use the Securityholder Expense Fund to pay any expenses incurred by the Securityholder Representative under this Agreement in fulfilling its obligations hereunder and may rely upon the authority shall distribute any remaining balance of the Securityholder Expense Fund to the Exchange Agent for further distribution to the Securityholders upon completion by the Securityholder Representative to act on behalf of the Securityholdersits duties hereunder. Any payment by such distributions from the Buyer Securityholder Expense Fund shall be paid to the Exchange Agent for further distribution to the Indemnitors, with equal priority and pro rata based on each such Securityholder’s Pro Rata Share. The Securityholders will not receive any interest or earnings on the Securityholder Expense Fund and irrevocably transfer and assign to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholdersany ownership right that they may otherwise have had in any such interest or earnings. The appointment Securityholder Representative will not be liable for any loss of principal of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power Expense Fund other than as a result of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct misconduct. For tax purposes, the Securityholder Expense Fund will be treated as having been received and voluntarily set aside by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with at the opinion time of such counselClosing.
Appears in 1 contract
Samples: Merger Agreement (Intuit Inc)
Securityholder Representative. (a) Each Securityholder hereby By virtue of the approval of the Merger and this Agreement by the Sufficient Equityholder Vote, and/or by accepting any portion of the Equity Consideration or other amounts in accordance with Section 1.8 of this Agreement or the Distribution in accordance with Section 5.17 of this Agreement, each of the Legacy Equityholders appoints ACAS Xxxx X. Xxxxxx as its exclusive agent and attorney-in-fact, as the “Securityholder Representative” , to act as the agent of the Securityholders with the full power (i) to resolve take all questions, disputes, conflicts actions for and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the SecurityholdersLegacy Equityholders with respect to matters, claims and disputes under this Agreement and the Exchange Agreement (to the extent set forth therein), the Tax Receivable Agreement (to the extent set forth therein), the Payments Administration Agreement and the Escrow Agreement, including to amend this Agreement or such Related Agreements, to waive any provision of this Agreement or such Related Agreements, to negotiate payments due pursuant to this Article VII, to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Indemnified Party against any Legacy Equityholder or by any such Legacy Equityholder against any Indemnified Party or any dispute between any Indemnified Party and any such Legacy Equityholder, in each case relating to this Agreement or such Related Agreements, and to take all other actions thereunder that are either (i) necessary or appropriate in the discretion of the Securityholder Representative for and on their behalf, including but not limited the authorization accomplishment of payments the foregoing or (ii) specifically mandated by the terms of this Agreement. Notices or communications to or from the Reserve Account Securityholder Representative shall constitute notice to or from the Legacy Equityholders with respect to this Agreement or such Related Agreements.
(b) The power of attorney hereunder is irrevocable and coupled with an interest, and, to the extent permitted by applicable law, shall survive the death or disability of a Legacy Equityholder, and the transfer of any portion of the Equity Consideration or other amounts in accordance with Section 1.8 of this Agreement or the Distribution in accordance with Section 5.17 of this Agreement. The Securityholder Representative shall have the power (from time to time) to select and appoint his successor Securityholder Representative, and to revoke a prior selection and appointment of his successor, by providing written notice thereof to Parent. In the event a vacancy in the position of Securityholder Representative exists for fifteen (15) or more days, Parent shall have the right to petition a court of competent jurisdiction to appoint a replacement Securityholder Representative. No bond shall be required of the Securityholder Representative, and the Securityholder Representative shall not receive any compensation for its services (notwithstanding its right to reimbursement of expenses including any increase thereof pursuant to Section 2.04(b)(ifrom the Representative Fund). The Securityholder Representative shall have sole control of withdrawals from, or other decisions with respect to, the Representative Fund, and the Parent acknowledges that such funds may be used for (i) expenses incurred in connection with Losses performing its duties as provided hereinthe Securityholder Representative, (ii) indemnification of the Securityholder Representative by the Legacy Equityholders under agreements between the Securityholder Representative and the Legacy Equityholders, (iii) to negotiate and/or settle all satisfaction of any contribution claim the Securityholder Representative has against Legacy Equityholders for any indemnification claims under this Agreementpaid by the Securityholder Representative in excess of such Securityholder Representative’s Pro Rata Portion of the Legacy Equityholders, and (iv) to receive from satisfaction of any indemnification claims by the Buyer monies payable to Parent Indemnified Parties against the Securityholders Legacy Equityholders.
(c) Until notified in writing by the Securityholder Representative that he has resigned, or that a successor has been appointed, Parent and the Escrow Agent may rely conclusively and act upon the directions, instructions and notices of the Securityholder Representative named above and, thereafter, upon the directions, instructions and notices of any successor appointed in accordance with clause “(b)” above. A decision, act, consent or instruction of the provisions Securityholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Legacy Equityholders and shall be final, binding and conclusive upon the Legacy Equityholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Securityholder Representative as being the decision, act, consent or instruction of the Legacy Equityholders. The Escrow Agent and Parent are hereby relieved from any liability to any Person for any decision, act, consent or instruction of the Securityholder Representative.
(vd) In addition to, and without limiting, the foregoing, the Company and each Legacy Equityholder each hereby authorizes the Securityholder Representative to:
(i) Receive all notices or documents given or to otherwise take be given to the Legacy Equityholders pursuant hereto or in connection herewith or therewith and to receive and accept services of legal process in connection with any Proceeding arising under this Agreement;
(ii) Engage counsel, accountants, and other advisors, agents and representatives (each, a “SH Rep Advisor”), and incur such actions (or refrain from taking actions) related fees and execute such documents (including any modificationsexpenses, waivers or amendments thereto) on the Securityholders’ behalf and other fees and expenses, in each case, in connection with this Agreement and the Transactions as the Securityholder Representative, Representative may in its his sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of discretion deem appropriate; the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain rely conclusively on the opinions, advice and counsel and to incur of such reasonable expenses SH Rep Advisors;
(including court costs and reasonable attorney’s fees and expensesiii) Take such action as the Securityholder Representative deems to be reasonably necessary or may in its sole discretion deem appropriate in connection with its performance respect of: (A) waiving any inaccuracies in the representations or warranties of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (Parent or Sub contained in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith any document delivered by Parent or Sub pursuant hereto; (B) taking such other action as the Securityholder Representative is authorized to take under this Agreement; (C) receiving all documents or certificates and making all determinations, in his capacity as Securityholder Representative, required under this Agreement; and (D) all such capacity; provided, that none actions as may be necessary to carry out any of the Securityholders shall be liable transactions contemplated by this Agreement, including the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article VII and any portion waiver of such liabilitiesany obligation of Parent or the Surviving Entity; and
(iv) purchase, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from obtain and maintain liability and other insurance coverage with respect to the gross negligence or willful misconduct administration of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders ’s duties hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to have no liability hereunder for any act or omission in connection with, or related to, this Agreement and the Buyer Transactions, in each case, except for willful misconduct or the Securityholders in its capacity as intentional fraud. The Legacy Equityholders shall indemnify the Securityholder Representative and his Affiliates, heirs, beneficiaries, personal representatives, successors and assigns (the “Securityholder Representative Indemnified Parties”) and hold the Securityholder Representative Indemnified Parties harmless against any and all direct and indirect, incidental and consequential Losses (except for any liability of Losses directly caused by the Securityholder Representative’s willful misconduct or intentional fraud), incurred or sustained by the Securityholder Representative Indemnified Parties, directly or indirectly, as a Securityholder or for any error of judgmentresult of, or any act done with respect to or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in with, the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any acceptance and/or administration of the provisions of this Agreement or its Securityholder Representative’s duties hereunder, including (i) the fees and it shall incur no liability expenses of any and all SH Rep Advisors, and (ii) any and all other fees, expenses, liabilities and obligations in its capacity as Securityholder Representative to connection with, or related to, this Agreement and the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion of such counselTransactions.
Appears in 1 contract
Samples: Merger Agreement (Global Partner Acquisition Corp.)
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS as the “Securityholder Representative” to act as the agent 7.1 By virtue of the Securityholders with execution and delivery of a Lock-Up/Release Agreement, and without any further action of any of the full power (i) Company Indemnitors or the Company, each of the Company Indemnitors shall be deemed to resolve all questionshave agreed to appoint the Securityholder Representative as their exclusive agent and attorney-in-fact, disputes, conflicts as their sole and controversies concerning Losses as provided in this Article 11, (ii) to execute exclusive representative for and enter into, on behalf of the SecurityholdersCompany Indemnitors and to receive and distribute payments, to give and receive notices and communications and otherwise in satisfaction of indemnification claims by any TheMaven Indemnified Party pursuant to Section 5 of this Agreement, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any indemnification claim hereunder or any dispute between any TheMaven Indemnified Party and any Company Indemnitors, in each case relating to this Agreement or the Merger, and to take all other actions thereunder for and on their behalf, including but not limited that are either (i) necessary or appropriate in the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions judgment of the Securityholder Representative under for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. The Buyer is entitled to rely on Notwithstanding the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreementforegoing, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative no obligation to act on behalf of the SecurityholdersCompany Indemnitors, except as expressly provided in this Agreement and, for the avoidance of doubt, there are no obligations of the Securityholder Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedule. Any payment The Securityholder Representative may resign at any time. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholder Representative and the Closing and/or any termination of this Agreement. No bond shall be required of the Securityholder Representative. Other than in connection with any claim pursued by a TheMaven Indemnified Party directly against any Company Indemnitor, notices or communications to or from the Buyer Securityholder Representative shall constitute notice to or from the Company Indemnitors. The powers, immunities and rights to indemnification granted to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is hereunder: (i) are coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by and survive the death, illnessincompetence, dissolution, disability, incapacity bankruptcy or other inability to act liquidation of any Company Indemnitor and shall be binding on any successor thereto; and (ii) shall survive the delivery of an assignment by any Company Indemnitor of the principal pursuant to whole or any applicable Lawfraction of his, her or its interest in the Indemnification Shares.
(d) 7.2 The Securityholder Representative may resign (i) rely and act upon any statement, report or opinion prepared by or any advice received from its capacity as the auditors, counsel or other professional advisors of the Securityholder Representative, (ii) rely upon any signature believed by him to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Indemnitor or other party. Absent fraud, gross negligence or willful misconduct, neither the Securityholder Representative at nor his Representatives shall be responsible or held liable, in each case to any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative Company Indemnitor for any reasonloss or damage resulting from so relying or from acting in accordance with this Agreement, such vacancy as the Securityholder Representative.
7.3 A decision, act, consent or instruction of the Securityholder Representative, including an amendment of any provision of this Agreement pursuant to Section 8.12 of this Agreement, shall constitute a decision of the Company Indemnitors and shall be filled by a Securityholders vote in final, binding and conclusive upon the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 Company Indemnitors and the authorization of a majority of such number of votes shall be binding on all their successors as if expressly confirmed and ratified in writing, and TheMaven may rely upon any such decision, act, consent or instruction of the Securityholders and shall constitute Securityholder Representative as being the authorization decision, act, consent or instruction of the SecurityholdersCompany Indemnitors. All defenses which may be available to any Company Indemnitor to contest, negate or disaffirm the action of the Securityholder Representative taken in good faith under this Agreement are waived. TheMaven is hereby relieved from any liability to any person for any acts done by TheMaven in accordance with such decision, act, consent or instruction of the Securityholder Representative.
7.4 Each Company Indemnitor agrees (ei) to jointly and severally indemnify and hold harmless the Securityholder Representative from and against any and all losses, claims, damages, costs, judgements, fines, amounts paid in settlement, expenses (including, without limitation, legal fees and expenses on a full indemnity basis, costs of counsel and other skilled professionals and in connection with seeking recovery from insurers) and liabilities (collectively, such losses, claims, damages, costs, expenses and liabilities being the “Indemnified Liabilities”) to which Securityholder Representative may become subject, insofar as such Indemnified Liabilities (or actions, suits, or proceedings, including any inquiry or investigation or claim, in respect thereof) arise out of, in any way relate to, or result from its acting as Securityholder Representative under this Agreement and (ii) to reimburse the Securityholder Representative upon demand for all legal or other expenses, if any, incurred in connection with its acting as Securityholder Representative, other than in the case of fraud, gross negligence or willful misconduct, on condition that the Securityholder Representative has acted in compliance with this Agreement. The Company Indemnitors acknowledge that the Securityholder Representative shall not be liable required to expend or risk his own funds or otherwise incur any financial liability in the Buyer exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement or the Securityholders in its capacity as transactions contemplated hereby. Furthermore, the Securityholder Representative for shall not be required to take any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in action unless the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute has been provided with funds, security or question as to the construction of any of the provisions of this Agreement or its duties hereunderindemnities which, and it shall incur no liability in its capacity as determination, are sufficient to protect the Securityholder Representative to against the Buyer or costs, expenses and liabilities which may be incurred by the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it Securityholder Representative in good faith in accordance with the opinion of performing such counselactions.
Appears in 1 contract
Samples: Merger Agreement (theMaven, Inc.)
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS By virtue of the approval of the First Merger and this Agreement by the Reliant Stockholders, each of the Indemnifying Parties shall be deemed to have agreed to appoint Xxxxxx Xxxxxxxx in as their agents and attorney-in-facts, as the “Securityholder Representative” to act as the agent of the Securityholders with the full power (i) to resolve all questions, disputes, conflicts Representative for and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the SecurityholdersIndemnifying Parties to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Funds in satisfaction of claims by such Indemnified Party pursuant to Section 2.9 or Section 8.2(a), to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Indemnifying Party or by any such Indemnifying Party against any Indemnified Party or any dispute between any Indemnified Party and any such Indemnifying Party, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions thereunder that are either (i) necessary or appropriate in the judgment of the Securityholder Representative for and on their behalf, including but not limited the authorization accomplishment of payments from the Reserve Account foregoing or (including any increase thereof pursuant to Section 2.04(b)(i)ii) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from specifically mandated by the Buyer monies payable to the Securityholders in accordance with the provisions terms of this Agreement. Such agency may be changed by the Indemnifying Party from time to time upon not less than 30 days prior written notice to Thermage; provided, (v) however, that the Securityholder Representative may not be removed unless holders of a majority of the Total As-Converted Outstanding Common Shares agree to otherwise take such actions (or refrain from taking actions) removal and execute such documents (including any modificationsto the identity of the substituted agent. Notwithstanding the foregoing, waivers or amendments thereto) on a vacancy in the Securityholders’ behalf in connection with this Agreement as position of Securityholder Representative may be filled by the holders of a majority of the Total As-Converted Outstanding Common Shares. No bond shall be required of the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust and the Securityholder Allocation Percentage Representative shall not receive any compensation for his services. Notices or communications to or from the Securityholder Representatives shall constitute notice to or from the Indemnifying Parties.
(b) The Securityholder Representative shall not be liable for any act done or omitted hereunder as Securityholder Representative while acting in good faith and in the exercise of reasonable judgment. The Indemnifying Parties shall indemnify the Reserve Account otherwise payable to Securityholder Representative and hold the Securityholder Representative harmless against any particular Securityholder as a result of loss, liability or expense incurred without gross negligence or bad faith on the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions part of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on and arising out of or in connection with the acts and agreements acceptance or administration of the Securityholder Representative as Representative’s duties hereunder, including the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as expenses of any legal counsel retained by the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this AgreementRepresentative, and all such any fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
in connection with this Agreement (b) The Securityholders hereby agree severally to indemnify the “Securityholder Representative (in its capacity as suchExpenses”), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the . The Securityholder Representative shall have the right to deduct from use up to One Hundred Thousand Dollars ($100,000) of the Reserve Account or, after Escrow Amount in the exhaustion thereof, aggregate for reasonably and appropriately documented Securityholder Representative Expenses and subordinate to seek payment directly from the Securityholders for the amount ofsatisfaction of any then outstanding indemnification claims made pursuant to Section 8.2(a), and prior to any and all liabilitiessuch distribution, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against shall deliver to Thermage a certificate setting forth the Securityholder Representative in such capacity in any way relating to Expenses actually incurred. A decision, act, consent or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct instruction of the Securityholder Representative. The Securityholder Representative may from time , including an amendment, extension or waiver of this Agreement pursuant to time submit invoices to Section 10.3 and Section 10.4 hereof, shall constitute a decision of the Securityholders covering such expenses and/or liabilities andIndemnifying Parties and shall be final, binding and conclusive upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account Indemnifying Parties; and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and Thermage may rely upon the authority any such decision, act, consent or instruction of the Securityholder Representative to act on behalf as being the decision, act, consent or instruction of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the SecurityholdersIndemnifying Parties. The appointment of the Securityholder Representative is coupled with an interest Escrow Agent and shall be irrevocable by Thermage are hereby relieved from any Securityholder in liability to any manner or person for any reason. This power of attorney shall not be affected acts done by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith them in accordance with such decision, act, consent or instruction of the opinion either of such counselSecurityholder Representative.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Thermage Inc)
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS By virtue of the approval of the Merger and this Agreement by the requisite vote of the Shareholders, each of the Shareholders shall be deemed to have agreed to appoint Xxxxxxx Xxxxx as his, her or its agent and attorney-in-fact, as the “Securityholder Representative” to act as the agent of the Securityholders with the full power (i) to resolve all questions, disputes, conflicts Representative for and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the SecurityholdersShareholders to give and receive notices and communications, to authorize payment to any Parent Indemnified Party in satisfaction of claims by any Parent Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Parent Indemnified Party against any Shareholder or by any such Shareholder against any Parent Indemnified Party or any dispute between any Parent Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions thereunder that are either (i) necessary or appropriate in the judgment of the Securityholder Representative for and on their behalf, including but not limited the authorization accomplishment of payments from the Reserve Account foregoing or (including any increase thereof pursuant to Section 2.04(b)(i)ii) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under specifically mandated by the terms of this Agreement. The Securityholder Representative will also act as a proxy for each Shareholder who elects to execute and deliver a Proxy and Voting Agreement in the form prescribed by the Securityholder Representative, (iv) granting the Securityholder Representative the right to receive from vote the Buyer monies payable to shares of Parent Common Stock held by such Shareholder following the Securityholders Closing in accordance with the provisions of this Agreementsuch Proxy and Voting Agreement with a view toward combining the voting power of those Shareholders and increasing their collective influence over the affairs of the Parent after the Effective Time. The Securityholder Representative may be changed from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Securityholder Representative may not be removed unless Shareholders holding a majority of the Company Class A Common Stock (vas of the Effective Time) agree to otherwise take such actions (or refrain from taking actions) removal and execute such documents (including any modifications, waivers or amendments thereto) on to the Securityholders’ behalf in connection with this Agreement as identity of the substituted agent. No bond shall be required of the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right not receive any compensation for its services. Notices or communications to deduct or from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating shall constitute notice to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this AgreementShareholders.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(eb) The Securityholder Representative shall not be liable for any act done or omitted hereunder or under any Proxy and Voting Agreement as Securityholder Representative while acting in good faith and in the exercise of reasonable judgment. The Shareholders shall indemnify the Securityholder Representative and hold the Securityholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Securityholder Representative and arising out of or in connection with the acceptance or administration of the Securityholder Representative’s duties hereunder or under any Proxy and Voting Agreement, including the reasonable fees and expenses of any legal counsel retained by the Securityholder Representative (“Securityholder Representative Expenses”). A decision, act, consent or instruction of the Securityholder Representative, including but not limited to an amendment, extension or waiver of this Agreement, shall constitute a decision of the Buyer Shareholders and shall be final, binding and conclusive upon the Shareholders; and Parent may rely upon any such decision, act, consent or instruction of the Securityholders in its capacity Securityholder Representative as being the decision, act, consent or instruction of the Shareholders. The Parent is hereby relieved from any liability to any person for any decision, act, consent or instruction of the Securityholder Representative.
(c) At the Closing, the Parent shall pay $250,000 of the Initial Cash Consideration to the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in Representative Expenses (the case of gross negligence or willful misconduct by it“Representative Fund”). The Securityholder Representative may seek shall maintain the advice Representative Fund in a separate bank account for the benefit of reputable legal counsel the Shareholders. Any Securityholder Representative Expenses above the amount in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and Fund shall be fully protected with respect to any action taken, omitted or suffered paid by it in good faith the Shareholders on a pro rata basis in accordance with its, his or her Pro Rata Portion of the opinion of such counselMerger Consideration received hereunder. Any unused funds remaining in the Representative Fund shall be distributed to the Shareholders according to their Pro Rata Portion.
Appears in 1 contract
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS By virtue of the approval and adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, by the Company Stockholders, the acceptance of consideration under this Agreement and/or the completion, execution and delivery of the letters of transmittal contemplated by Section 1.9, each of the Participating Securityholders shall be deemed to have (i) designated Shareholder Representative Services LLC as the representative of the Participating Securityholders (the “Securityholder Representative” to act as the agent of the Securityholders with the full power (i) to resolve all questions”), disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) agreed that the Securityholder Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Participating Securityholder, with full power in his, her or its name and on his, her or its behalf to execute give and receive notices and communications in respect of indemnification claims under this Agreement to be recovered against the Escrow Fund, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of any indemnification claims hereunder by any Indemnified Party, to object to such payments, to agree to, negotiate, enter intointo settlements and compromises of, on behalf and demand arbitration and comply with orders of courts and awards of arbitrators with respect to any such indemnification claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any such indemnification claim by any Indemnified Party hereunder against any Participating Securityholder or by any such Participating Securityholder against any Indemnified Party or any dispute between any Indemnified Party and any such Participating Securityholder, in each case relating to this Agreement or the Securityholderstransactions contemplated hereby, and to take all other actions thereunder for and on their behalf, including but not limited that are either (i) necessary or appropriate in the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions judgment of the Securityholder Representative under for the accomplishment of the foregoing or (ii) specifically mandated or permitted by the terms of this Agreement. The Buyer is entitled Such agency may be changed by the Participating Securityholders from time to rely on time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the acts Securityholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and agreements to the identity of the substituted agent. Notwithstanding the foregoing, in the event of a resignation of the Securityholder Representative as or other vacancy in the acts and agreements position of Securityholder Representative, such vacancy may be filled by the holders of a majority in interest of the SecurityholdersEscrow Fund. The Securityholder Representative No bond shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as required of the Securityholder Representative deems Representative. After the Closing, notices or communications to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by from the Securityholder Representative shall be borne pro rata by constitute notice to or from the Securityholders based upon their respective initial Securityholder Allocation PercentagesParticipating Securityholders.
(b) The Securityholder Representative shall not be liable for any act done or omitted hereunder as Securityholder Representative while acting in good faith and without gross negligence. The Participating Securityholders hereby agree severally on whose behalf the Escrow Amount was contributed to the Escrow Fund shall indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (harmless against any and all Losses arising out of or in its capacity as such) harmless from (connection with the acceptance or administration of the Securityholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Securityholder Representative shall have the right and any amounts required to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred paid by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action the Escrow Agent pursuant to this the Escrow Agreement (“Representative Expenses”), in each case, as such Representative Expense is incurred or in connection herewith in such capacitysuffered; provided, that none of in the Securityholders shall be liable for event that any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely Representative Expense is finally adjudicated to have arisen from the bad faith, gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative maywill reimburse the Participating Securityholders the amount of such Representative Expense attributable to such bad faith, upon gross negligence or willful misconduct. The Representative Expense Amount shall be available to reimburse the Securityholder Representative for any Representative Expenses. Following the Expiration Date, the Securityholder Representative shall have the right to recover Representative Expenses not previously recovered from the Representative Expense Fund from the Escrow Fund prior or contemporaneous written noticeto any distribution to the Participating Securityholders (solely from any funds that are not subject to any pending indemnification claims made under this Agreement), offset and prior to any amounts determined by it such distribution, shall deliver to the Escrow Agent a certificate setting forth the Representative Expenses actually incurred and not previously recovered. For the avoidance of doubt, while this section allows the Securityholder Representative to be owed paid from the Representative Expense Fund and Escrow Fund, this Section 7.6(b) shall not limit the obligation of any Participating Securityholder to promptly pay such Representative Expenses as they are incurred. Following the Expiration Date, the resolution of all indemnification claims made under this Agreement and the satisfaction of all such indemnification claims, the Securityholder Representative shall distribute such portion of the Representative Expense Amount that has not been used to reimburse the Securityholder Representative for Representative Expenses, if any, to the Escrow Agent, who will promptly distribute such funds to the Participating Securityholders in accordance with their respective Pro Rata Fractions. A decision, act, consent or instruction of the Securityholder Representative shall constitute a decision of the Participating Securityholders and shall be final, conclusive and binding upon the Participating Securityholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Securityholder Representative as being the decision, act, consent or instruction of the Participating Securityholders. The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Securityholder Representative.
(c) Certain Participating Securityholders (the “Advisory Group”) have entered or will enter into a letter agreement with the Securityholder Representative regarding direction to be provided by the Advisory Group to the Securityholder Representative against the Reserve Account and against any amounts to be paid Representative. The Advisory Group shall incur no liability to the Participating Securityholders hereunderfor any liability incurred by the members of the Advisory Group while acting in good faith and arising out of or in connection with the acceptance or administration of their duties (it being understood that any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith), even if such act or omission constitutes negligence on the part of the Advisory Group or one of its members. The agreements in this Section 11.04 This exculpation from liability shall survive the termination of this Agreement.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion of such counsel.
Appears in 1 contract
Samples: Merger Agreement (Lifelock, Inc.)
Securityholder Representative. (a) Each By virtue of the adoption of this Agreement and the approval of the Merger and the other Transactions by the Requisite Stockholder Approval and without any further action of any of the Securityholders or the Company, each of the Securityholders shall have irrevocably constituted and appointed, upon the Effective Time (and by its execution of this Agreement as Securityholder Representative, Fortis Advisors LLC hereby appoints ACAS accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Securityholder Representative” to act as the agent ”), of the Securityholders with receiving consideration hereunder to act in the full power (i) to resolve all questionsname, disputes, conflicts place and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf stead of the Securityholders, and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) Securityholders in connection with Losses as provided hereinthe Transactions, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the terms and provisions of this Agreement, (v) and to otherwise take such actions (act on behalf of the Securityholders in any Proceeding involving this Agreement, to do or refrain from taking actions) doing all such further acts and things, and to execute all such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably shall deem necessary or appropriate in connection with the Transactions and the Securityholder Representative Engagement Agreement, including the power:
(i) to specifically bring (or decide not to bring) actions on behalf of Securityholders and Permitted Transferees to specifically enforce the terms of this Agreement and any agreements ancillary hereto or for damages for breaches hereof or thereof, including, but not limited to, the provisions of Section 6.03;
(ii) to act for the Securityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Securityholders and to transact matters of litigation or other Proceedings;
(iii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Securityholder Representative deems necessary or appropriate in connection with the consummation of the Transactions;
(iv) to execute and deliver all amendments and waivers to this Agreement that the Securityholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(v) to receive the Securityholder Expense Fund for the payment of expenses of the Securityholders and apply such funds in payment for such expenses;
(vi) to do or refrain from doing any further act or deed on behalf of the Securityholders that the Securityholder Representative deems necessary or appropriate in its performance sole discretion relating to the subject matter of its obligations this Agreement as fully and completely as the Securityholders could do if personally present; and
(vii) to receive service of process in connection with any claims under this Agreement. Notwithstanding the foregoing, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative no obligation to act on behalf of the Securityholders, except as expressly provided herein and in the Securityholder Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Securityholder Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. Any payment by the Buyer The powers, immunities and rights to indemnification granted to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Securityholder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in any manner or for any reasonthe Holdback Amount. This power of attorney shall not be affected All actions taken by the deathSecurityholder Representative under this Agreement or the Securityholder Representative Engagement Agreement shall be binding upon each Securityholder and such Securityholder’s successors as if expressly confirmed and ratified in writing by such Securityholder, illnessand all defenses which may be available to any Securityholder to contest, dissolution, disability, incapacity negate or other inability to act disaffirm the action of the principal pursuant to any applicable LawSecurityholder Representative taken in good faith under this Agreement or the Securityholder Representative Engagement Agreement are waived.
(db) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by and may be removed or replaced only upon delivery of written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed Surviving Corporation by the Securityholders entitled to holding at least a majority of outstanding shares of Company Common Stock (on an as-converted to Company Common Stock basis) as of immediately prior to the number Effective Time. The immunities and rights to indemnification shall survive the resignation or removal of votes the Securityholder Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Securityholder Representative in all matters referred to herein. The Securityholder Representative shall be entitled to: (i) rely upon the Consideration Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Securityholder or other party. Certain Securityholders have entered into an engagement agreement (the “Securityholder Representative Engagement Agreement”) with the Securityholder Representative to provide direction to the Securityholder Representative in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 connection with its services under this Agreement and the authorization of a majority of Securityholder Representative Engagement Agreement (such number of votes Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Securityholder Representative shall be binding act for the Securityholders on all of the matters set forth in this Agreement in the manner the Securityholder Representative believes to be in the best interest of the Securityholders and shall constitute consistent with the authorization obligations under this Agreement, but neither the Securityholder Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholder Representative Group”), shall be responsible to the Securityholders for any Damages the Securityholders may suffer by the performance of its duties under this Agreement or the Securityholder Representative Engagement Agreement, other than Damages arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Securityholders shall indemnify, defend and hold harmless the Securityholder Representative Group from and against any and all losses, claims, damages, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Securityholder Representative Expenses”) incurred without gross negligence or willful misconduct on the part of the Securityholder Representative and arising out of or in connection with the acceptance or administration of its duties hereunder or under the Securityholder Representative Engagement Agreement. Such Securityholder Representative Expenses may be recovered first, from the Securityholder Expense Fund, second, from any distribution of the Holdback Amount otherwise distributable to the Securityholders at the time of distribution, and third, directly from the Securityholders. The Securityholders acknowledge that the Securityholder 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 Securityholder Representative Engagement Agreement or the transactions contemplated hereby or thereby. Furthermore, the Securityholder Representative shall not be required to take any action unless the Securityholder Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in performing such actions.
(ec) The Securityholder Representative shall use the Securityholder Expense Fund: (i) to pay any Securityholder Representative Expenses incurred by the Securityholder Representative in fulfilling its obligations hereunder or under the Securityholder Representative Engagement Agreement, or (ii) as otherwise determined by the Advisory Group, and shall distribute any remaining balance of the Securityholder Expense Fund to the Exchange Agent for further distribution to the Securityholders upon completion by the Securityholder Representative of its duties hereunder. Any such distributions from the Securityholder Expense Fund shall be paid to the Indemnitors in accordance with such Securityholder’s Pro Rata Share of the Securityholder Expense Fund. The Securityholders will not receive any interest or earnings on the Securityholder Expense Fund and irrevocably transfer and assign to the Securityholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Securityholder Representative is not providing any investment supervision, recommendations or advice and will not be liable to the Buyer or the Securityholders in its capacity as for any loss of principal of the Securityholder Representative for any liability Expense Fund other than as a result of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of its gross negligence or willful misconduct by itmisconduct. The Securityholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Securityholder Representative Fund and has no tax reporting or income distribution obligations. Subject to Advisory Group approval, the Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as contribute funds to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative Fund from any consideration otherwise distributable to the Buyer or Securityholders. For tax purposes, the Securityholder Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with at the opinion time of such counselClosing.
Appears in 1 contract
Samples: Merger Agreement (Okta, Inc.)
Securityholder Representative. Each of the Securityholders hereby irrevocably constitutes, designates and appoints Xxxxxxx Xxxxxxxx as the sole representative, agent and attorney for and on behalf of each Securityholder and each Securityholder Group Member (a) Each Securityholder hereby appoints ACAS as the “Securityholder Representative” to act as the agent of the Securityholders with the full power (i”) to resolve (a) represent and act for it, him or her for all questionspurposes relating to, disputesmake any and all determinations and agreements in connection with, conflicts and controversies concerning Losses as provided take or refrain from taking any other actions for and on his, her or its behalf pursuant to, this Agreement, any Securityholder Ancillary Agreement (other than the Amended and Restated Employment Agreements and the Non-Competition Agreements), any Company Ancillary Agreement or any Parent Ancillary Agreement, (b) give and receive notices and communications, organize or assume defense of third-party claims, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to third-party claims including pursuant to Article VIII and Sections 9.19 and 9.20, (c) take or refrain from taking any other actions specified in this Article 11Agreement, any Securityholder Ancillary Agreement (other than the Amended and Restated Employment Agreements and the Non-Competition Agreements), any Company Ancillary Agreement or any Parent Ancillary Agreement to be taken by any Securityholder, the Securityholder Representative or any Securityholder Group Member, (iid) to execute and enter into, on behalf of authorize releases from the SecurityholdersEscrow Account, and (e) to take all actions thereunder necessary or appropriate in the judgment of the Securityholder Representative for and on their behalf, including but not limited the authorization accomplishment of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders foregoing in accordance with the terms and provisions of this Agreement, any Securityholder Ancillary Agreement (v) to otherwise take such actions (other than the Amended and Restated Employment Agreements and the Non-Competition Agreements), any Company Ancillary Agreement or refrain from taking actions) and execute such documents (including any modificationsParent Ancillary Agreement. Any decision, waivers act, consent, agreement or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions instruction of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts shall constitute a decision, act, consent, agreement or instruction of each Securityholder and agreements of the each Securityholder Representative as the acts Group Member and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel final, binding and to incur such reasonable expenses (including court costs conclusive and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and Parent may rely upon the same. This appointment and grant of power and authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be is in consideration of the mutual covenants made herein and is irrevocable by any Securityholder in any manner or for any reason. This power of attorney and shall not be affected terminated by the death, illness, dissolution, disability, incapacity or other inability to any act of the principal Securityholders or by operation of law, whether by death or incapacity of any Securityholder or by the occurrence of any other event. Each Securityholder hereby consents to the taking of any and all actions and the making of any decisions required or permitted to be taken or made by Securityholder Representative pursuant to this Section 9.23. If Xxxxxxx Xxxxxxxx or any applicable Law.
(d) The successor to such person as the Securityholder Representative may resign dies or is unwilling or unable to serve as the Securityholder Representative, then the Securityholders hereby agree that Xxxxxxx XxxXxxxxx shall be appointed as the successor to act as the Securityholder Representative. Notices or communications to or from its capacity as the Securityholder Representative at any time by written hereunder shall constitute notice delivered to the Buyer and or from each of the Securityholders. If there is a vacancy at any time Each Securityholder shall, in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal proportion to such Securityholder’s respective Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on (other than any matters involving less than all of the Securityholders for which the applicable Securityholders shall bear their respective pro rata share of such costs and shall constitute expenses), pay or reimburse the authorization Stockholder Representative, upon presentation of an invoice, for all costs and expenses of the Securityholders.
Stockholder Representative (eincluding, without limitation, fees and expenses of counsel to the Stockholder Representative) in connection with: (i) the enforcement of this Agreement and/or any Securityholder Ancillary Agreement (other than the Amended and Restated Employment Agreements and the Non-Competition Agreements), any Company Ancillary Agreement or any Parent Ancillary Agreement and/or the protection or preservation of the rights of each Securityholder and/or the Securityholders against Parent, or any of their respective assets, and (ii) any amendment, modification or waiver of any of the terms of this Agreement and/or any Securityholder Ancillary Agreement (other than the Amended and Restated Employment Agreements and the Non-Competition Agreements), any Company Ancillary Agreement or any Parent Ancillary Agreement (whether or not any such amendment, modification or waiver is signed or becomes effective) (collectively, the “Securityholder Representative Expenses”). Such amounts shall first be paid out of an advance amount equal to One Million Dollars ($1,000,000) (together with any interest thereon, the “Advance Amount”), which will be delivered by Parent to the Securityholder Representative at Closing as a deduction from the Estimated Cash Closing Consideration and which the Securityholder Representative may maintain in a separate account for application under this Section 9.23. Any portion of the Advance Amount remaining after final settlement of the Contingent Payment pursuant to Section 2.8 and payment of the Securityholder Representative Expenses shall be distributed to the Securityholders in proportion to their respective Securityholder Percentages. In addition, the Securityholder Representative may reduce any amounts distributed under the Escrow Agreement to the Securityholders for any amounts due by the Securityholders under this Section 9.23. The Securityholder Representative shall not be liable to any Securityholder for any action or omission taken or omitted to be taken by the Buyer or Securityholder Representative in good faith under this Agreement, and each Securityholder, in proportion to their respective Securityholder Percentages (other than any claims involving less than all of the Securityholders for which the applicable Securityholders shall bear their respective pro rata share of such costs and expenses), for itself and for his, her or its heirs, executors, legal representatives and assigns, hereby agrees to indemnify and hold harmless the Securityholder Representative from and against any and all claims that may arise against the Securityholder Representative by reason of the Securityholder Representative’s actions or inactions hereunder in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement (except in the case of gross negligence fraud or intentional or willful misconduct by it. The Securityholder Representative may seek on the advice of reputable legal counsel in the event of any dispute or question as to the construction of any part of the provisions of this Agreement Securityholder Representative) or its duties hereunderagainst the Securityholder Representative, and it shall incur no liability in its capacity as such, by reason of such Securityholder’s fraud, misrepresentation, breach of representation or warranty or non-fulfillment of any obligation of such Securityholder contained in this Agreement. In the event any Securityholder (a “Defaulting Securityholder”) fails to indemnify the Securityholder Representative within sixty (60) days of the date of demand by the Securityholder Representative for such indemnity, the other Securityholders shall, in proportion to the Buyer or their respective Securityholder Percentages (other than any claims involving less than all of the Securityholders for which the applicable Securityholders shall bear their respective pro rata share), make such indemnity payment and shall be fully protected with respect subrogated to any action taken, omitted or suffered by it in good faith in accordance with the opinion rights of the Securityholder Representative against the Defaulting Securityholder to the extent of such counselpayments. Notwithstanding anything to the contrary set forth herein, if any of the loans made by the Company to directors, officers or employees described in Section 3.2(k) are not repaid within seven (7) days after the Closing Date, the Securityholder Representative shall purchase from the Surviving Corporation, using funds from the Advance Amount, each such loan which is not so repaid, for an amount equal to the aggregate principal amount thereof. [Signature pages follow.]
Appears in 1 contract
Samples: Agreement and Plan of Merger (Navigant Consulting Inc)
Securityholder Representative. (a) Each By approving this Agreement and the Transactions or by executing and delivering a Support Agreement or a Letter of Transmittal, and by receiving the benefits thereof, including any consideration payable hereunder, each Company Securityholder hereby appoints ACAS shall have irrevocably authorized and appointed Securityholder Representative as the “Securityholder Representative” such Person’s representative, agent and attorney-in-fact to act as the agent of the Securityholders with the full power (i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of such Person as of the SecurityholdersClosing with respect to this Agreement, the Escrow Agreement and any related agreements, and to take any and all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including make any increase thereof pursuant decisions required or permitted to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf be taken by Securityholder Representative in connection with this Agreement, the Escrow Agreement as or any related agreement, including the exercise of the power to:
(i) give and receive notices and communications;
(ii) authorize delivery to Purchaser of cash from the Purchase Price Adjustment Escrow Fund (or, if necessary, the Indemnification Escrow Fund) in satisfaction of any amounts owed to Purchaser pursuant to Section 2.08 or from the Indemnification Escrow Fund in satisfaction of claims for indemnification made by Purchaser pursuant to ARTICLE 6 or ARTICLE 8, or otherwise authorize payments pursuant to the Escrow Agreement or with respect to the Securityholder RepresentativeRepresentative Fund;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in its sole discretionSection 2.08 or Section 2.09;
(iv) agree to, deems propernegotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Purchaser pursuant to ARTICLE 6 and ARTICLE 8;
(v) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to ARTICLE 6 and ARTICLE 8;
(vi) execute and deliver all documents necessary or desirable to pay, release and/or distribute carry out the intent of this Agreement and any or all of Ancillary Document (including the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, Escrow Agreement);
(vii) to adjust make all elections or decisions contemplated by this Agreement and any Ancillary Document (including the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and Escrow Agreement);
(viii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to perform assist Securityholder Representative in complying with its duties and obligations; and
(ix) take all actions necessary or appropriate in the good faith judgment of Securityholder Representative for the accomplishment of the functions of the Securityholder Representative under this Agreementforegoing. The Buyer is entitled to rely on the acts Purchaser and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative its Affiliates shall be entitled to retain counsel and deal exclusively with Securityholder Representative on all matters relating to incur such reasonable expenses this Agreement (including court costs ARTICLE 8) and reasonable attorney’s fees shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Company Securityholder by Securityholder Representative, and expenses) on any other action taken or purported to be taken on behalf of any Company Securityholder by Securityholder Representative, as the being fully binding upon such Person. Notices or communications to or from Securityholder Representative deems after the Closing shall constitute notice to or from each of the Company Securityholders. Any decision or action by Securityholder Representative hereunder, including any Agreement between Securityholder Representative and Purchaser relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Company Securityholders and shall be reasonably necessary final, binding and conclusive upon each such Person. No Company Securityholder shall have the right to object to, dissent from, protest or appropriate in connection otherwise contest the same. The provisions of this Section 10.01, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with its performance an interest and shall not be terminated by any act of its obligations under this Agreementany one or more Company Securityholders, and all such fees and expenses incurred or by operation of Law, whether by death or other event. Notwithstanding any provision to the contrary contained herein, the Securityholder Representative shall be borne pro rata by not have the power or authority to execute any amendment, waiver, document or other instrument that would adversely affect in any material respect the rights, obligations or liability of a specific Company Securityholder (as opposed to Company Securityholders based upon their respective initial generally) without the prior written consent of such Company Securityholder. Prior to OCGC having given written notice to the Securityholder Allocation PercentagesRepresentative that the MOF Consent has been received, the Securityholder Representative shall not have any liability or obligation to OCGC.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, againstmay resign at any time, and may be removed for any reason or no reason by the unanimous vote or written consent of the Advisory Committee, provided that at least five Business Days’ notice of such removal and replacement shall be given to hold the removed Securityholders’ Representative and Parent. In the event of the death, incapacity, resignation or removal of Securityholder Representative, a new Securityholder Representative (in its capacity as such) harmless from (and reasonably acceptable to Purchaser shall be appointed by the unanimous vote or written consent of the Advisory Committee. Notice of such vote or a copy of the written consent appointing such new Securityholder Representative shall have be sent to Purchaser, such appointment to be effective upon the right later of the date indicated in such consent or the date such notice is received by Purchaser; provided that until such notice is received, Purchaser and its Affiliates (including the Company Group after Closing) shall be entitled to deduct from rely on the Reserve Account or, after decisions and actions of the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the prior Securityholder Representative as described in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement10.01(a) above.
(c) The Buyer Securityholders Representative shall act in the manner Securityholder Representative believes to be fully protected in dealing the best interest of the Company Securityholders and consistent with the obligations under this Agreement and the Escrow Agreement and any related agreements. Certain Company Securityholders have entered into an engagement agreement (the “Securityholder Representative Engagement Agreement”) with the Securityholder Representative to provide direction to the Securityholder Representative in connection with its services under this Agreement, the Escrow Agreement, the Securityholder Representative Engagement Agreement and may rely upon any related agreements (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the authority “Advisory Committee”). Neither the Securityholder Representative nor any member of the Advisory Committee, solely in such Advisory Committee members’ capacity as such, is or shall be personally liable for any of the obligations of the Company Securityholders hereunder, and the Purchaser Indemnitees agree that they will not look to the underlying assets of the Securityholder Representative or the members of the Advisory Committee for the satisfaction of any obligations of the Company Securityholders. Neither the Securityholder Representative nor any member of the Advisory Committee shall be liable to the Company Securityholders for actions taken or omitted by the Securityholder Representative or the Advisory Committee, respectively, in connection with this Agreement, the Escrow Agreement or any related agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted, in the case of the Securityholder Representative, the Securityholder Representative’s gross negligence or involved intentional common law fraud, intentional misconduct or bad faith, or in the case of the Advisory Committee, such Advisory Committee member’s gross negligence or involved intentional common law fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Securityholder Representative or the Advisory Committee shall be conclusive evidence of good faith). The Company Securityholders shall severally and not jointly (in accordance with their Pro Rata Shares), indemnify and hold harmless Securityholder Representative and each member of the Advisory Committee from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, Actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of or in connection with its activities as Securityholder Representative or as a member of the Advisory Committee under this Agreement, the Escrow Agreement, the Securityholder Representative Engagement Agreement or any related agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by, in the case of the Securityholder Representative, the Securityholder Representative’s gross negligence, intentional common law fraud, intentional misconduct or bad faith of the Securityholder Representative or, in the case of a member of the Advisory Committee, such Advisory Committee member’s gross negligence or involved intentional common law fraud, intentional misconduct or bad faith, the Securityholder Representative or such Advisory Committee member, as applicable, shall reimburse the Company Securityholders the amount of such indemnified Representative Loss attributable to such gross negligence, intentional common law fraud, intentional misconduct or bad faith. Representative Losses may be recovered by the Securityholder Representative or an Advisory Committee member from (i) the funds in the Securityholder Representative Fund and (ii) any other funds that become payable to the Company Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Securityholders; provided, that while the Securityholder Representative or Advisory Committee member may be paid from the aforementioned sources of funds, this does not relieve the Company Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Securityholder Representative or any member of the Advisory Committee be required to advance its own funds on behalf of the SecurityholdersCompany Securityholders or otherwise. Any payment by Notwithstanding anything in this Agreement to the Buyer contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Securityholder Representative to and members of the extent authorized under this Agreement shall be considered a payment by the Buyer to the SecurityholdersAdvisory Committee hereunder. The appointment foregoing indemnities will survive the Closing, the resignation or removal of the Securityholder Representative is coupled with or an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer Advisory Committee member or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions termination of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion of such counselAgreement.
Appears in 1 contract
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS Immediately upon the approval of this Agreement by the Company Holder Approval, each Holder shall be deemed to have consented to the appointment of Fortis Advisors LLC as the Holders’, Optionholders’ and Warrantholder’s representative and attorney-in-fact (the “Securityholder Representative” to act ”), as the agent of the Securityholders with the full power (i) to resolve all questions, disputes, conflicts attorney-in-fact for and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the Securityholderseach such Holder, Optionholder and Warrantholder, and to take the taking by the Securityholder Representative of any and all actions thereunder for and on their behalf, including but not limited the authorization making of payments from the Reserve Account (including any increase thereof pursuant decisions required or permitted to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of be taken by the Securityholder Representative under this Agreement, including the exercise of the power to (a) execute and deliver this Agreement and the Escrow Agreement and, in each case, any amendment thereof or waiver thereunder, (b) authorize delivery to the Parent of the Escrow Amount, or any portion thereof, in satisfaction of claims for indemnification hereunder, (c) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to claims for indemnification hereunder, (d) resolve any claims for indemnification hereunder and take all actions necessary in the judgment of the Securityholder Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement and the Escrow Agreement. Accordingly, the Securityholder Representative has unlimited authority and power to act on behalf of each Holder, Optionholder and Warrantholder with respect to this Agreement and the Escrow Agreement and the disposition, settlement or other handling of all claims for indemnification hereunder, rights or obligations arising from and taken pursuant to this Agreement or the Escrow Agreement. The Buyer is Holders, Optionholder and Warrantholder will be bound by all actions taken by the Securityholder Representative in connection with this Agreement or the Escrow Agreement, and the Parent shall be entitled to rely on the acts and agreements any decision, action, consent or instruction of the Securityholder Representative as being the acts and agreements decision, action, consent or instruction of the Securityholders. The Securityholder Representative shall be entitled to retain counsel Holders, Optionholders and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this AgreementWarrantholder, and all the Parent and Merger Sub are hereby relieved from any liability to any Person for acts done by them in accordance with any such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentagesdecision, act, consent or instruction.
(b) The Securityholders hereby agree severally Certain Company Indemnifying Parties have entered, or prior to indemnify the Closing will enter, into a letter agreement with the Securityholder Representative to provide direction to the Securityholder Representative in connection with the performance of its services under this Agreement and the Escrow Agreement (such Company Indemnifying Parties, including their individual representatives, the “Advisory Group”). Neither the Advisory Group nor the Securityholder Representative (and its members, managers, directors, officers, contractors, agents and employees) (collectively, the “Representative Group”) will incur any liability with respect to any action taken or suffered by the Representative Group in its capacity as suchreliance upon any notice, direction, instruction, consent, statement or other document believed by the Representative Group to be genuine and to have been signed by the proper Person (and shall have no responsibility to determine the authenticity thereof), on a pro rata basis based upon their respective Securityholder Allocation Percentagesnor for any other action or inaction, against, and to hold except the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account orRepresentative’s own willful misconduct, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and bad faith or gross negligence. In all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or questions arising out of its action or failure to take action pursuant to under this Agreement or in connection herewith in such capacity; providedthe Escrow Agreement, that none the Representative Group may rely on the advice of counsel, experts or consultants, and the Securityholders shall Representative Group will not be liable to the Company Indemnifying Parties for anything done, omitted or suffered in good faith by the Representative Group based on such advice. The Securityholder Representative will not be required to take any portion action involving any expense or risk of its own funds unless the payment of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses expense is made or disbursements resulting solely from the gross negligence or willful misconduct of provided for in a manner satisfactory to the Securityholder Representative. The Securityholder Holders, Optionholders and Warrantholder shall severally indemnify, defend and hold harmless the Representative may Group from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any and all losses, claims, damages, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Representative Expenses”) incurred without willful misconduct, bad faith or gross negligence on the part of the Representative Group and arising out of or in connection with the acceptance or administration of their duties. The powers, immunities and rights to be paid indemnification granted to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of Representative Group under this Agreement.
: (ci) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is are coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by and survive the death, illnessincompetence, dissolution, disability, incapacity bankruptcy or other inability to act liquidation of the principal respective Holder, Optionholder or Warrantholder and shall be binding on any successor thereto, (ii) shall survive the delivery of an assignment by any Holder, Optionholder or Warrantholder of the whole or any fraction of his, her or its interest in the Escrow Fund and (iii) shall survive the resignation or removal of Securityholder Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) The Representative Expenses may be recovered first from the Expense Fund. To the extent that the Expense Fund is insufficient and funds remain and are to be distributed from the Escrow Fund to the Company Indemnifying Parties pursuant to the terms of this Agreement and the Escrow Agreement, the Securityholder Representative shall receive reimbursement from the Company Indemnifying Parties directly out of any applicable Lawsuch distributions that are being made to the Company Indemnifying Parties for any and all Representative Expenses that have not previously been reimbursed. To the extent there are insufficient funds in the Expense Fund and the Escrow Fund to reimburse Representative Expenses, the balance of such Representative Expenses may be recovered directly from the Company Indemnifying Parties based on their respective Consideration Pro Rata Percentage (rounded to the nearest cent).
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions approval of this Agreement or its duties hereunder, and it by the Company Holder Approval shall incur no liability in its capacity as Securityholder Representative also be deemed to constitute approval of all arrangements relating to the Buyer or transactions contemplated hereby and to the Securityholders provisions hereof binding upon the Holders, Optionholders and shall be fully protected with respect to any action takenWarrantholder, omitted or suffered by it including the covenants and agreements included in good faith in accordance with the opinion of such counselSection 8.2.
Appears in 1 contract
Samples: Merger Agreement (AOL Inc.)
Securityholder Representative. (a) Each The Securityholders, by virtue of the approval and adoption of this Agreement by the Stockholders, irrevocably constitute and appoint the Securityholder Representative (and Securityholder Representative hereby appoints ACAS accepts such appointment) as the “Securityholder Representative” their agent and attorney-in-fact for and on behalf of each Securityholder, with full power of substitution, to act as in the agent name, place and stead of each Securityholder, with respect to any matter relating to or under this Agreement and the Securityholders with the full power Escrow Agreement, including (i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the Securityholders, and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take taking such actions (or refrain from taking actions) and execute making such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement decisions as the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall may be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance the determination of its obligations the amounts payable hereunder; (ii) taking such actions and making such decisions as may be necessary or appropriate in connection with any dispute arising pursuant to Section 1.9, including reviewing, disputing, agreeing to, negotiating, entering into settlements or compromises of any such disputes; (iii) enforcing this Agreement and the Escrow Agreement on behalf of the Securityholders; (iv) giving and receiving all notices required to be given under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (Agreement and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), Escrow Agreement; (v) taking any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses actions and making any and all decisions required or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it permitted to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer shall be fully protected in dealing with taken or made by the Securityholder Representative under this Agreement and may rely upon the authority Escrow Agreement; and (vi) taking any and all actions necessary or appropriate in furtherance of or for the accomplishment of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholdersforegoing. The appointment power of attorney granted in this Section 7.3 by each Securityholder to the Securityholder Representative is coupled with an interest and is irrevocable, may be delegated by the Securityholder Representative and shall survive the death or incapacity of any Securityholder. No bond shall be irrevocable required of the Securityholder Representative. The Securityholder Representative shall be entitled to engage outside legal counsel, accountants, consultants, experts or other advisors as the Securityholder Representative deemed necessary or appropriate in connection with performing its duties or exercising its rights under this Agreement and the Escrow Agreement.
(b) All decisions, consents, instructions and actions by the Securityholder Representative made or taken in accordance with this Agreement or the Escrow Agreement shall be final and binding on all of the Securityholders, and no Securityholders shall have any cause of action against the Securityholder in any manner or Representative for any reasondecision made, consent or instruction given, or action taken by the Securityholder Representative under this Agreement or the Escrow Agreement, except for any such decision, consent, instruction or action that constitutes fraud, gross negligence, bad faith or willful misconduct by or on behalf of the Securityholder Representative. This power Parent shall be entitled to rely conclusively on any decisions, consents, instructions and actions by the Securityholder Representative made or taken in connection with this Agreement or the Escrow Agreement in writing, and no party hereto shall have any cause of attorney action against Parent for any action taken by Parent in reliance upon any such decision, consent, instruction or action.
(c) The Securityholder Representative shall not have any liability to any of the parties hereto or to the Securityholders for any act done or omitted hereunder as Securityholder Representative while acting in good faith exercise of reasonable judgment, and any act done or omitted pursuant to the advice of outside legal counsel shall be affected conclusive evidence of such good faith. The Securityholders shall severally but not jointly, based on their respective Pro Rata Portions, indemnify and hold harmless the Securityholder Representative, from and against any loss, liability or expense incurred by the deathSecurityholder Representative arising out of or in connection with the acceptance, illnessperformance or administration of its duties under this Agreement and the Escrow Agreement, dissolutionexcept for any such loss, disabilityliability or expense based upon or arising out of any fraud, incapacity gross negligence, bad faith or other inability willful misconduct by or on behalf Securityholder Representative. The Securityholder Representative shall be entitled to act recover any such losses, liabilities or expenses which are indemnifiable hereunder (i) first by recourse to any amounts available in the Expense Fund, (ii) second by recourse to any amounts in the Escrow Fund that are otherwise available for distribution to the Securityholders pursuant to this Agreement and the Escrow Agreement (but solely, following the final determination of the principal Negative Adjustment pursuant to any applicable LawSection 1.9), and (iii) third by recourse directly to the Securityholders, pro rata, based on the respective portion of the Merger Consideration received by them.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time retain copies, reproductions, summaries, analyses or extracts (whether in the position of Securityholder Representative for any reasonhard-copy form or on intangible media, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority as electronic mail or computer files) of the number contents of votes referred to any virtual data room maintained by in connection with the next sentence. In such eventtransactions contemplated hereby, each Securityholder shall have a number of votes equal to such Securityholderthe Company’s Securityholder Allocation Percentage multiplied by 100 books and the authorization of a majority of such number of votes shall be binding on records and all of the Securityholders Company’s historical written communications (including electronic mail) prior to the Effective Time solely for record retention purposes or in connection with performing its duties or exercising its rights under this Agreement and shall constitute the authorization of the SecurityholdersEscrow Agreement.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as identity of the Securityholder Representative for any liability and the terms of the agency may be changed, and a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The successor Securityholder Representative may seek the advice of reputable legal counsel be appointed, from time to time (including in the event of the resignation, death, disability or other incapacity of the Securityholder Representative) by consent of the Securityholders representing a majority-in-interest (based on the respective Pro Rata Portions) of the Securityholders. Each successor Securityholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Securityholder Representative, and the term “Securityholder Representative” as used herein shall be deemed to include any dispute or question as such successor Securityholder Representatives.
(f) The Securityholder Representative shall, in its sole discretion, determine when the unused portion, if any, of the Expense Fund shall be released for further distribution to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with their Pro Rata Portions. Upon such determination by the opinion Securityholder Representative, the Securityholder Representative shall, at its sole discretion, either (i) directly release such unused portion of the Expense Fund to the Securityholders or (ii) along with Parent, deliver to the Escrow Agent or the Paying Agent a written notice executed by each such party instructing the Escrow Agent or the Paying Agent, as applicable, to promptly (and in no event later than one (1) Business Day after the date of such counselwritten notice) deliver to each Securityholder his, her or its Pro Rata Portion of the aggregate amount of such funds.
(g) This Section 7.3 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to the rights of the Securityholders hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
Appears in 1 contract
Securityholder Representative. (a) Each Securityholder By the approval and adoption of this Agreement in the Company Stockholder Approval pursuant to Delaware law and without any further action of any of the Company Equity Holders or the Company, the Company Equity Holders are hereby appoints ACAS deemed to irrevocably appoint, and by participating in the Merger and receiving the benefits thereof, each Company Equity Holder is hereby deemed to and hereby does irrevocably appoint Fortis Advisors LLC, a Delaware limited liability company, as the “Securityholder Representative” Representative to act as the true and lawful attorney-in-fact, exclusive agent and representative of the Securityholders with Company Equity Holders for all purposes under this Agreement or under any other agreement contemplated hereby. Without limiting the generality of the foregoing, the Securityholder Representative has full power and authority, on behalf of each Company Equity Holder and his, her or its successors and assigns, to (i) interpret the terms and provisions of this Agreement and the documents to resolve all questionsbe executed and delivered by the Company Equity Holders in connection herewith, disputes, conflicts and controversies concerning Losses as provided in this Article 11including the Escrow Agreement, (ii) to execute and enter intodeliver and receive deliveries of all agreements, on behalf of the Securityholderscertificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) be given in connection with Losses as provided hereinthe consummation of the transactions contemplated by this Agreement, including the Escrow Agreement, (iii) to negotiate and/or settle all receive service of process in connection with any claims under this Agreement, the Escrow Agreement, (iv) agree to, negotiate and enter into settlements and compromises of, and assume the defense of, claims, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to such claims, and take all actions necessary or appropriate in the judgement of the Securityholder Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) take all actions necessary or appropriate in the judgment of the Securityholder Representative on behalf of the Company Equity Holders in connection with this Agreement, (vii) make any determinations and settle any matters in connection with the adjustments in Section 3.5, (viii) authorize delivery to Parent of the Deficiency Amount or any portion thereof pursuant to Section 3.5, (ix) distribute the Representative Holdback Amount, (x) pay any expenses of the Company Equity Holders or the Securityholder Representative from the Buyer monies Representative Holdback Amount, (xi) deduct, hold back or redirect any funds which may be payable to any Company Equity Holder pursuant to the Securityholders in accordance with the provisions terms of this Agreement, the Escrow Agreement, or any agreements or documents executed and delivered in connection herewith in order to pay, or establish a reserve for, any amount that may be payable by such Company Equity Holder hereunder, and (vxii) to otherwise take such actions (do or refrain from taking actions) doing the foregoing and execute such documents (including any modifications, waivers further act or amendments thereto) deed on behalf of the Securityholders’ behalf in connection with this Agreement as Company Equity Holders which the Securityholder Representative, Representative deems necessary or appropriate in its sole discretiondiscretion relating to the subject matter of this Agreement and the Escrow Agreement. Notwithstanding the foregoing, deems proper, (vi) the Securityholder Representative shall have no obligation to pay, release and/or distribute any or all act on behalf of the Reserve Account or otherwise to pay Losses hereunderCompany Equity Holders, each except as expressly provided herein, in its sole discretion, (vii) to adjust the Escrow Agreement and in the Securityholder Allocation Percentage Representative Engagement Agreement, and for purposes of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representationsclarity, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions there are no obligations of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on in any ancillary agreement, schedule, exhibit or the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation PercentagesCompany Disclosure Letter.
(b) The Securityholders hereby agree severally Securityholder Representative requires that the Representative Holdback Amount be withheld and wire transferred at Closing by Borrower to indemnify the Securityholder Representative, on behalf of the Company Equity Holders, to satisfy potential future obligations of the Company Equity Holders, as further described herein. The Representative Holdback Amount shall be retained by the Securityholder Representative (in its capacity a non-interest bearing account for such time as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders determine in its sole discretion. The Representative Holdback Amount shall be used (i) for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses purposes of paying directly or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against reimbursing the Securityholder Representative in such capacity in for any way relating to or arising out of its action or failure to take action Securityholder Representative Expenses incurred pursuant to this Agreement, the Escrow Agreement or in connection herewith in such capacity; providedany Securityholder Representative Engagement Agreement, that none or (ii) as otherwise determined by the Advisory Group. The Securityholder Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Securityholders shall be liable for any portion Representative Holdback Amount other than as a result of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the its gross negligence or willful misconduct misconduct. The Securityholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Holdback Amount and has no tax reporting or income distribution obligations, in connection therewith. The Company Equity Holders will not receive any interest on the Representative Holdback Amount and assign to the Securityholder Representative any such interest. Subject to Advisory Group approval, the Securityholder Representative may contribute funds to the Representative Holdback Amount from any consideration otherwise distributable to the Company Equity Holders. As soon as reasonably determined by the Securityholder Representative that the Representative Holdback Amount is no longer required to be withheld, the Securityholder Representative shall distribute any remaining amounts from the Representative Holdback Amount to the Exchange Agent for further distribution to the Company Equity Holders.
(c) In the event that the Securityholder Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Company Equity Holders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the voting power represented by the capital stock of the Company issued and outstanding immediately prior to the Effective Time shall select another representative to fill such vacancy, and such substituted representative shall be deemed to be the Securityholder Representative for all purposes of this Agreement.
(d) Parent and the Surviving Company shall be able to rely conclusively on any instructions given and actions taken by the Securityholder Representative as the instruction and decision of each Company Equity Holder in all matters referred to herein, and no Party or Company Equity Holder shall have any cause of action against Parent or the Surviving Company for any action taken by Parent or the Surviving Company in reliance upon the written instructions or decisions of the Securityholder Representative. The Securityholder Representative may from time shall be entitled to: (i) rely upon the Allocation Schedule, (ii) rely upon any signature believed by it to time submit invoices be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Equity Holder or other party.
(e) Certain Company Equity Holders have entered into an engagement agreement (the “Securityholder Representative Engagement Agreement”) with the Securityholder Representative to provide direction to the Securityholders covering Securityholder Representative in connection with its services under this Agreement, the Escrow Agreement and the Securityholder Representative Engagement Agreement (such expenses and/or liabilities andCompany Equity Holders, upon including their individual representatives, collectively hereinafter referred to as the request “Advisory Group”). Neither the Securityholder Representative nor its members, managers, directors, officers, contractors, agents and employees, nor any member of the Advisory Group (collectively, the “Securityholder Representative Group”) will be liable for any act done or omitted in connection with the acceptance or administration of the Securityholder Representative’s responsibilities under this Agreement, under the Escrow Agreement or under the Securityholder Representative Engagement Agreement while acting in good faith, except and only to the extent such action or omission constitutes gross negligence or intentional misconduct. Parent agrees that it will not look to the personal assets of the Securityholder Representative, acting in such capacity, for the satisfaction of any Securityholder, shall provide such Securityholder with an accounting of all expenses paidobligations to be performed by the Company (pre-Closing) or the Company Equity Holders or otherwise. In addition to performing any other rights of its duties under this Agreement or remedies (including Section 11.02(d))any agreements or documents executed and delivered in connection herewith, the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to will not be owed liable to the Securityholder Representative against the Reserve Account and against Company Equity Holders for any amounts losses that any Person may incur as a result of any act, or failure to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer shall be fully protected in dealing with act, by the Securityholder Representative under this Agreement or any agreements or documents executed and delivered in connection herewith. All actions taken by the Securityholder Representative under this Agreement, the Escrow Agreement or the Securityholder Representative Engagement Agreement shall be binding upon each Company Equity Holder and such Company Equity Holder’s successors as if expressly confirmed and ratified in writing by such Company Equity Holder, and all defenses which may rely upon be available to any Company Equity Holder to contest, negate or disaffirm the authority action of the Securityholder Representative to act on behalf of taken in good faith under this Agreement, the Securityholders. Any payment by the Buyer to Escrow Agreement or the Securityholder Representative to the extent authorized under this Engagement Agreement shall be considered a payment by the Buyer to the Securityholdersare waived. The appointment Company Equity Holders shall indemnify, defend and hold harmless the Securityholder Representative Group from and against any and all losses, claims, damages, liabilities, fees, costs, expenses (including reasonable, documented out of pocket fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Securityholder Representative Expenses”) incurred without gross negligence or willful misconduct on the part of the Securityholder Representative is coupled and arising out of or in connection with an interest and shall be irrevocable by any Securityholder in any manner the acceptance or for any reason. This power administration of attorney shall not be affected by its duties hereunder, under the death, illness, dissolution, disability, incapacity Escrow Agreement or other inability to act of under the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to Engagement Agreement. The Company Equity Holders acknowledge that the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable required to expend or risk its own funds or otherwise incur any financial liability in the Buyer exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Securityholders in its capacity as Escrow Agreement, the Securityholder Representative for Engagement Agreement or the transactions contemplated hereby or thereby. Furthermore, the Securityholder Representative shall not be required to take any liability action unless the Securityholder Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in performing such actions. The limitation of a liability, immunities and rights to indemnification provisions of this Section 12.1 will survive the Closing, the termination of this Agreement and the resignation or removal of the Securityholder or for any error of judgment, Representative or any act done or step taken or omitted member of the Advisory Group.
(f) All Securityholder Representative Expenses shall be paid by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by itCompany Equity Holders on a pro rata basis. The Securityholder Representative may seek shall first make payment of or recover, as applicable, such Securityholder Representative Expenses from the advice of reputable legal counsel in the event of Representative Holdback Amount, second, from any dispute or question as distribution made to the construction of any of Company Equity Holders from the Adjustment Escrow Amount, the Indemnity Escrow Amount or other amounts that may be distributable to the Company Equity Holders, and third, directly from the Company Equity.
(g) The provisions of this Agreement or its duties hereunderSection 12.1 are independent and severable, and it shall incur no liability in its capacity as Securityholder Representative are irrevocable (subject to the Buyer Securityholder Representative’s right to resign) and coupled with an interest, shall survive the death, incompetence, bankruptcy or the Securityholders liquidation of any Company Equity Holder and shall be fully protected with respect binding on any successor thereto, shall survive the delivery of an assignment by any Company Equity Holder of the whole or any fraction of his, her or its interest in any amounts held pursuant to the Escrow Agreement, and shall be enforceable notwithstanding any action taken, omitted rights or suffered by it remedies that any Company Equity Holder may have in good faith in accordance connection with the opinion of such counseltransactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Skillsoft Corp.)
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS as the “Securityholder Representative” to act as the agent of the Securityholders with the full power (i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the Securityholders, and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions For purposes of this Agreement, the Paying Agency Agreement, the Registration Rights Agreement, and the other ancillary agreements, documents and certificates pursuant to such agreements, including all waivers and amendments to such agreements, documents and certificates (v) to otherwise take such actions (or refrain from taking actions) collectively, the “Transaction Documents”), the Transactions and execute such documents (including in any modificationsAction involving the Transaction Documents, waivers or amendments thereto) each Company Indemnifying Party shall, without any further action on the Securityholders’ behalf in connection with this Agreement as part of any such Company Securityholder, be deemed to have consented to the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements appointment of the Securityholder Representative as the acts representative of such Company Securityholder, as the attorney-in-fact for and agreements on behalf of each such Company Securityholder in accordance with the terms of its engagement as the representative of the Company Securityholders, and the taking by the Securityholder Representative of any and all actions and the making of any decisions required or permitted to be taken by them under or contemplated by the Transaction Documents in each case, as applicable. In connection therewith, the Securityholder Representative shall have the power and authority, on behalf of the Company Securityholders, as applicable, to: (i) execute and deliver the Transaction Documents (it being understood that no amendment shall be made which by Law requires further approval by the Company Stockholders without such further approval), and take all actions required or permitted to be taken under the Transaction Documents; (ii) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to such indemnification or other claims; (iii) act for the Company Indemnifying Parties (regardless of whether any such Company Indemnifying Party votes in favor of the adoption and approval of this Agreement and the approval of the Merger) with regard to all matters pertaining to indemnification pursuant to this Article VI, including the power to compromise any indemnification claim on behalf of the Company Indemnifying Parties and to transact matters of litigation or other claims; (iv) give, receive and forward all notices and communications required to be given or received by the Company Securityholders under the Transaction Documents and in connection with any of the transactions and other matters contemplated hereby or thereby (including the Transactions), including receiving service of process in connection with any claims under this Agreement and the Paying Agency Agreement; (v) engage attorneys, accountants, financial and other advisors and other Persons (including the Paying Agent) necessary or appropriate (at the expense of the Company Securityholders), in the sole discretion of the Securityholder Representative in the performance of its duties under this Agreement, and authorizing and directing the disbursement of funds to pay the fees and expenses of such Persons (including, for the avoidance of doubt, by directing the disbursement of a portion of any Milestone Payment or Revenue Payment payable to the Company Securityholders pursuant to this Agreement to pay the fees and expenses of such Persons prior to disbursing the remaining amount of such Milestone Payment or Revenue Payment to the Company Securityholders); and (vi) take all actions or refrain from doing any further act or deed on its own behalf or on behalf of the Company Securityholders that the Securityholder Representative deems necessary or appropriate in its discretion relating to the subject matter of the Transaction Documents, as fully and completely as the Company Securityholders could do if personally present. Shareholder Representative Services LLC, a Colorado limited liability company, hereby accepts its appointment as the Securityholder Representative. The Securityholder Representative is authorized by each Company Securityholder to act on such holder’s behalf as required under the Transaction Documents. The Securityholder Representative may resign or be replaced in accordance with the terms of its engagement as the representative of the Company Securityholders and the newly appointed Securityholder Representative shall deliver written notice thereof to Parent and the Paying Agent (together with reasonable evidence thereof). Such substituted representative shall be deemed to be the Securityholder Representative for all purposes of the Transaction Documents. Such removal and appointment shall be effective upon the later of the date indicated in the written consent or the date such written consent is received by Parent and the Paying Agent. All decisions and actions by the Securityholder Representative shall be binding upon all Company Securityholders, and no Company Securityholders shall have the right to object, dissent, protest or otherwise contest the same.
(b) The Securityholder Representative shall act for the Company Securityholders on all of the matters set forth in the Transaction Documents in the manner the Securityholder Representative believes to be in the best interest of the Company Securityholders. The Securityholder Representative is authorized to act on behalf of the Company Securityholders notwithstanding any dispute or disagreement among the Company Securityholders. The Securityholder Representative shall be entitled indemnified, defended and held harmless by the Company Securityholders from and against, and shall have no liability to retain counsel the Company Securityholders in respect of, any and to incur such reasonable all losses, liabilities, expenses, damages, claims, penalties, fines, forfeitures, actions, out-of-pocket fees, costs and expenses (including court costs the reasonable and reasonable attorney’s documented fees and expensesexpenses of counsel) (collectively, “Representative Losses”) arising out of or in connection with the Securityholder Representative’s execution and performance of the Transaction Documents, in each case as such Representative Loss is suffered or incurred absent the Securityholder Representative’s or its Affiliates’ gross negligence, fraud or willful misconduct. If not paid directly to the Securityholder Representative deems to by the Company Securityholders, any such Representative Losses may be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred recovered by the Securityholder Representative shall from any Milestone Payment or Revenue Payment at such time as any such amounts would otherwise be borne pro rata by distributable to the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(bCompany Securityholders; provided, that while this Section 6.7(b) The Securityholders hereby agree severally to indemnify allows the Securityholder Representative (in its capacity to be paid from the Milestone Payments or Revenue Payments, this does not relieve the Company Securityholders from their obligation to promptly pay such Representative Losses as such)they are suffered or incurred, on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold nor does it prevent the Securityholder Representative (in its capacity from seeking any remedies available to it at law or otherwise, unless such obligations are otherwise satisfied from such Milestone Payment or Revenue Payment. The Company Securityholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Securityholder Representative or the termination of this Agreement. The parties acknowledge that the Securityholder Representative’s obligations under this Article VI are solely as such) harmless from (a representative of the Company Indemnifying Parties, and that the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders no personal responsibility for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith it in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer For all purposes of this Agreement:
(i) Parent shall be fully protected in dealing with entitled to rely conclusively on the Securityholder Representative under this Agreement instructions and may rely upon the authority decisions of the Securityholder Representative as to act on behalf the settlement of the Securityholders. Any payment any claims for indemnification by the Buyer any Parent Indemnified Party pursuant to this Article VI, or any other actions required or permitted to be taken by the Securityholder Representative to hereunder or the extent authorized under this Paying Agency Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment or in connection with any of the Securityholder Representative is transactions and other matters contemplated hereby or thereby;
(ii) the provisions of this Section 6.7 are independent and severable, are irrevocable and coupled with an interest and shall be irrevocable by enforceable notwithstanding any rights or remedies that any Company Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct transactions contemplated by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of Transaction Documents; and
(iii) the provisions of this Agreement or its duties hereunderSection 6.7 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Securityholder, and it any references in the Transaction Documents to a Company Indemnifying Party or a Company Securityholder shall incur no liability in its capacity as Securityholder Representative mean and include the successors to the Buyer rights of each Company Indemnifying Party or Company Securityholder thereunder, whether pursuant to testamentary disposition, the Securityholders Laws of descent and shall be fully protected with respect to any action taken, omitted distribution or suffered by it in good faith in accordance with the opinion of such counselotherwise.
Appears in 1 contract
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS Immediately upon the approval of this Agreement by the Company Holder Approval, each Holder shall be deemed to have consented to the appointment of Shareholder Representative Services LLC as the Holders’, Optionholders’ and Warrantholder’s representative and attorney-in-fact (the “Securityholder Representative” ”), with full power of substitution to act on behalf of the Holders, Optionholders and Warrantholder to the extent and in the manner set forth in this Agreement and the Escrow Agreement. All decisions, actions, consents and instructions by the Securityholder Representative shall be binding upon all of the Holders, Optionholders and Warrantholder and no such Person shall have the right to object to, dissent from, protest or otherwise contest any such decision, action, consent or instruction. The Parent and Merger Sub shall be entitled to rely on any decision, action, consent or instruction of the Securityholder Representative as being the decision, action, consent or instruction of the Holders, Optionholders and Warrantholder, and the Parent and Merger Sub are hereby relieved from any liability to any Person for acts done by them in accordance with any such decision, act, consent or instruction. Notwithstanding anything in this Section 2.15 to the contrary, unless Holders, Optionholders and Warrantholder holding a majority of the aggregate Fully Diluted Share Number as of the Effective Time (the “Majority Holders”) shall have notified Parent and the Securityholder Representative in writing to the contrary, the Securityholder Representative shall not be empowered or authorized to act as the Holders’, Optionholders’ or Warrantholder’s agent or attorney-in-fact with respect to any claim for indemnification made pursuant to Article VIII to the extent such claim seeks recovery from the Holders, Optionholders and Warrantholder directly.
(b) The Securityholder Representative may resign at any time, and may be removed for any reason or no reason by the vote or written consent of the Securityholders with Majority Holders. In the full power (i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf event of the Securityholdersdeath, and to take all actions thereunder for and on their behalfincapacity, including but not limited the authorization resignation or removal of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any a new Securityholder Representative shall be appointed by the vote or all written consent of the Reserve Account Majority Holders. Notice of such vote or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage a copy of the Reserve Account otherwise payable written consent appointing such new Securityholder Representative shall be sent to any particular Securityholder as a result the Parent and, after the Effective Time, to the Surviving Corporation, such appointment to be effective upon the later of the payment of Losses resulting from breaches of date indicated in such Securityholder’s representationsconsent or the date such consent is received by the Parent and, warrantiesafter the Effective Time, covenants or agreements hereunder) the Surviving Corporation; provided that until such notice is received, the Parent, Merger Sub and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is Surviving Corporation, as applicable, shall be entitled to rely on the acts decisions, actions, consents and agreements instructions of the prior Securityholder Representative as the acts and agreements of the Securityholdersdescribed in Section 2.15(a). The Securityholder Representative shall be entitled to retain counsel and to incur such may charge a reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with fee for its performance of its obligations under this Agreement, and services; provided that all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
in performing its duties hereunder (bincluding legal fees and expenses related thereto) The Securityholders hereby agree severally to indemnify (other than the Securityholder Representative (Representative’s engagement fee) and any indemnification in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and favor of the Securityholder Representative shall have be borne by the right to deduct from the Reserve Account orHolders, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any Optionholders and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this AgreementWarrantholder.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative Holders, Optionholders and Warrantholder for any liability of a Securityholder or for any error of judgment, or any act done or step actions taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement or the Escrow Agreement, except to the extent such actions shall have been finally determined by a court of competent jurisdiction to have constituted willful misconduct or fraud. Except in cases where a court of competent jurisdiction has made such a finding, the Holders, Optionholders and Warrantholder shall jointly and severally indemnify, defend and hold harmless the Securityholder Representative from and against any and all losses, liabilities, claims, penalties, fines, forfeitures, actions, damages, costs and expenses, including reasonable attorneys’ fees (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) and disbursements (collectively, “Representative Losses”), arising out of and in connection with its activities as Securityholder Representative under this Agreement, the Escrow Agreement or otherwise, in each case as such Representative Losses are suffered or incurred. If not paid directly to the Securityholder Representative by the Holders, Optionholders and Warrantholder, any such Representative Losses may be recovered by the Securityholder Representative (i) first by distribution of the Expense Fund pursuant to the terms and conditions of the Escrow Agreement and (ii) after the exhaustion of the amounts in the Expense Fund, from the amounts in the Escrow Fund, but only at such time as such amounts in the Escrow Fund are otherwise distributable to the Holders, Optionholders and Warrantholder pursuant to the terms hereof and the Escrow Agreement because all claims for indemnification hereunder against such amounts have been fully resolved, in accordance with written instructions delivered by the Securityholder Representative to the Escrow Agent; provided that while this Section 2.15(c) allows the Securityholder Representative to be paid from the Expense Fund and the Escrow Fund, this does not relieve the Holders, Optionholders and Warrantholder from their obligation to promptly pay such Representative Losses as such Representative Losses are suffered or incurred, nor does it prevent the Securityholder Representative from seeking any remedies available to it at law or otherwise.
(d) The Securityholder Representative shall have reasonable access to information about the Surviving Corporation and the reasonable assistance of the Company’s former officers and employees for purposes of performing its duties and exercising its rights hereunder; provided, that, the Securityholder Representative shall treat confidentially and not use or disclose the terms of this Agreement or any nonpublic information from or about the Surviving Corporation to anyone (except to the Holders, Optionholders or Warrantholder or the Securityholder Representative’s employees, attorneys, accountants, advisors or authorized representatives on a need to know basis, in each case who agree to treat such information confidentially); provided, however, that neither Parent nor the Surviving Corporation shall be obligated to provide such access or information if it determines, in its reasonable judgment, that doing so would jeopardize the protection of gross negligence or willful misconduct by itattorney-client privilege. The Securityholder Representative may seek shall enter into a separate customary confidentiality agreement (which shall contain the advice of reputable legal counsel exceptions listed in the event of any dispute or question as preceding parenthetical) prior to the construction of any of the provisions being provided access to such information if reasonably requested by Parent.
(e) The approval of this Agreement or its duties hereunder, and it by the Company Holder Approval shall incur no liability in its capacity as Securityholder Representative also be deemed to constitute approval of all arrangements relating to the Buyer or transactions contemplated hereby and to the Securityholders provisions hereof binding upon the Holders, Optionholders and shall be fully protected with respect to any action takenWarrantholder, omitted or suffered by it including the representations and warranties included in good faith Section 3.24 and the covenants and agreements included in accordance with the opinion of such counselSection 5.15 and Section 8.2.
Appears in 1 contract
Samples: Merger Agreement (AOL Inc.)
Securityholder Representative. (a) Each By virtue of the adoption of this Agreement and the approval of the Mergers and the other Transactions by the Requisite Stockholder Approval, and by receiving the benefits thereof, including any consideration payable hereunder, each of the Securityholders shall have irrevocably constituted and appointed Shareholder Representative Services LLC, upon the Effective Time (and by its execution of this Agreement as Securityholder Representative, Shareholder Representative Services LLC hereby appoints ACAS accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Securityholder Representative” to act as the agent ”), of the Securityholders receiving consideration hereunder to act in the name, place and stead of the Securityholders for all purposes in connection with the full power Transactions, in accordance with the terms and provisions of this Agreement and the agreements ancillary hereto, and to act on behalf of the Securityholders in any Proceeding involving this Agreement and the agreements ancillary hereto, to do or refrain from doing all such further acts and things, and to execute all such documents as the Securityholder Representative shall deem necessary or appropriate in connection with the Transactions, including the power:
(i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided act for the Securityholders with regard to matters pertaining to indemnification referred to in this Article 11Agreement, including the power to compromise any indemnity claim on behalf of the Company Stockholders and to transact matters of litigation or other Proceedings;
(ii) to execute and enter intodeliver all amendments, on behalf of waivers, ancillary agreements, stock powers, certificates and documents after the Securityholders, and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as Closing that the Securityholder Representative deems to be reasonably necessary or appropriate in connection with the consummation of the Transactions;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Securityholder Representative deems necessary or appropriate after the Closing;
(iv) to receive the Securityholder Expense Fund for the payment of expenses of the Securityholders and apply such funds in payment for such expenses;
(v) to engage attorneys, accountants and other agents on behalf of the Securityholders in connection with this Agreement and pay any fees related thereto out of the Securityholder Expense Fund; |US-DOCS\123754940.16||
(vi) to do or refrain from doing any further act or deed on behalf of the Securityholders that the Securityholder Representative deems necessary or appropriate in its performance sole discretion relating to the subject matter of its obligations this Agreement as fully and completely as the Securityholders could do if personally present; and
(vii) to receive service of process in connection with any claims under this Agreement, . and all such fees to receive and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.forward notices and other communications pursuant to this Agreement
(b) The Securityholder Representative may resign at any time. The Securityholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Company or Surviving Corporation by the Company Stockholders holding at least a majority of outstanding shares of Company Preferred Stock as of immediately prior to the Effective Time. Parent, the Surviving Company, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Securityholder Representative in all matters referred to herein. The Securityholder Representative shall act for the Securityholders hereby agree severally on all of the matters set forth in this Agreement in the manner the Securityholder Representative believes to be in the best interest of the Securityholders and consistent with the obligations under this Agreement.
(c) The Securityholder Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Securityholder Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders shall indemnify the Securityholder Representative (in its capacity as such)against any reasonable, on a pro rata basis based upon their respective Securityholder Allocation Percentages, againstdocumented, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount out-of), any and all liabilities, obligations, -pocket losses, damages, penalties, actions, judgments, suits, costs, liabilities and expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder (“Representative in such capacity in any way relating to or Losses”) arising out of its action or failure to take action pursuant to this Agreement or in connection herewith with this Agreement and any related agreements, in each case as such capacityRepresentative Loss is suffered or incurred; provided, that none of in the Securityholders shall be liable for event that any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from Representative Loss is finally adjudicated to have been caused by the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative maywill reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. Representative Losses may be recovered by the Securityholder Representative from (i) the funds in the Securityholder Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, upon prior that while the Securityholder Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or contemporaneous written noticeincurred. In no event will the Securityholder Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, offset any amounts determined by it restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be owed applicable to the indemnities provided to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall foregoing indemnities will survive the Closing, the resignation or removal of the Securityholder Representative or the termination of this Agreement.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as shall use the Securityholder Expense Fund to pay any expenses incurred by the Securityholder Representative at in fulfilling its obligations hereunder and the agreements ancillary hereto and shall distribute any time by written notice delivered remaining balance of the Securityholder Expense Fund to the Buyer and Exchange Agent for further distribution to the Securityholders. If there is a vacancy at any time in Securityholders upon completion by the position of Securityholder Representative for any reason, of its duties hereunder. Any such vacancy distributions from the Securityholder Expense Fund shall be filled by a Securityholders vote in paid to the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such eventIndemnitors that are Accredited Investors, with equal priority and pro rata based on each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all Pro Rata Escrow Share of the Securityholder Expense Fund. |US-DOCS\123754940.16|| The Securityholders will not receive any interest or earnings on the Securityholder Expense Fund and shall constitute irrevocably transfer and assign to the authorization of the Securityholders.
(e) Securityholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Securityholder Representative shall will not be liable to the Buyer or the Securityholders in its capacity as for any loss of principal of the Securityholder Representative for any liability Expense Fund other than as a result of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of its gross negligence or willful misconduct by itmisconduct. The Securityholder Shareholder Representative may seek the advice of reputable legal counsel will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of any dispute or question bankruptcy. For tax purposes, the Securityholder Expense Fund will be treated as to the construction of any of the provisions of this Agreement or its duties hereunder, having been received and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or voluntarily set aside by the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with at the opinion time of such counselClosing.
Appears in 1 contract
Samples: Merger Agreement (Skillz Inc.)
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS By virtue of the execution and delivery of a Joinder Agreement or Letter of Transmittal, as applicable, and the “Securityholder Representative” to act as adoption of this Agreement and approval of the agent Merger by the Stockholders, each of the Securityholders with is hereby deemed to appoint Xxxxxx Xxxxxx, as its agent and attorney-in-fact, as the full power (i) to resolve all questions, disputes, conflicts Securityholder Representative for and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the SecurityholdersSecurityholders to give and receive notices and communications, to authorize withdrawals from the Escrow Fund and the Tax Escrow Fund in satisfaction of Losses incurred by Parent Indemnified Parties, to object to such deductions, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all other actions thereunder that are either (i) necessary or appropriate in the judgment of the Securityholder Representative for and on their behalf, including but not limited the authorization accomplishment of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to foregoing or otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as Agreement, the Securityholder Representative, in its sole discretion, deems proper, other Transaction Documents or the transactions contemplated hereby or thereby or (viii) to pay, release and/or distribute any or all specifically mandated by the terms of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on Such agency may be changed by the acts and agreements holders of a majority of the Securityholder Representative as shares of Company Capital Stock at the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this AgreementEffective Time, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon not less than five days’ prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the SecurityholdersParent. If there is a A vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall may be filled by a Securityholders vote in the form holders of a writing executed by the Securityholders entitled to a majority of the number shares of votes referred Company Capital Stock at the Effective Time. No bond shall be required of the Securityholder Representative, and the Securityholder Representative shall not receive any compensation for its services. Notices or communications to or from the Securityholder Representative shall constitute notice to or from the Securityholders. AGREEMENT AND PLAN OF MERGER
(b) The Securityholder Representative will incur no liability with respect to any action or inaction taken or suffered by him in reliance upon any notice, direction, instruction, consent, statement or other document believed by him to be genuine and to have been signed by the next sentenceproper person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except his own willful misconduct, bad faith or gross negligence. In such eventall questions arising under this Agreement, each the Securityholder shall have a number Representative may rely on the advice of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 counsel, and the authorization Securityholder Representative will not be liable to the Securityholders for anything done, omitted or suffered in good faith by the Securityholder Representative based on such advice. The Securityholders shall indemnify the Securityholder Representative and hold the Securityholder Representative harmless against, and reimburse the Securityholder Representative with respect to, any loss, liability or expense incurred without willful misconduct, bad faith or gross negligence on the part of the Securityholder Representative and arising out of or in connection with the acceptance or administration of the Securityholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Securityholder Representative.
(c) A decision, act, consent or instruction of the Securityholder Representative, shall constitute a majority of such number of votes shall be binding on all decision of the Securityholders and shall constitute be final, binding and conclusive upon the authorization Securityholders and Parent, the Payment Agent and the Escrow Agent may rely upon any such decision, act, consent or instruction of the Securityholder Representative as being the decision, act, consent or instruction of the Securityholders.
(e) The Securityholder Representative shall not be liable . Parent, the Payment Agent and the Escrow Agent is hereby relieved from any liability to the Buyer or the Securityholders in its capacity as the Securityholder Representative any person for any liability of a Securityholder or for any error of judgment, or any act acts done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith them in accordance with such decision, act, consent or instruction of the opinion of such counselSecurityholder Representative.
Appears in 1 contract
Samples: Merger Agreement (Netsuite Inc)
Securityholder Representative. (a) Each Securityholder of the Indemnifying Persons hereby appoints ACAS Saran Saund, as its agent and attorney-in-fact, as the “Securityholder Representative” to act as the agent of the Securityholders with the full power (i) to resolve all questions, disputes, conflicts Representative for and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the SecurityholdersIndemnifying Persons to give and receive notices and communications, to authorize settlements from the First Tranche Closing Share Amount and Second Tranche Closing Share Amount in satisfaction of Losses incurred by Parent Indemnified Parties, to provide the Notice of Disagreement with respect to the calculation of Working Capital and to resolve disputes with respect thereto, to object to claims for indemnification, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all other actions thereunder for and on their behalf, including but not limited that are either (i) necessary or appropriate in the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions judgment of the Securityholder Representative under for the accomplishment of the foregoing or (ii) specifically mandated or allowed by the terms of this Agreement. The Buyer is entitled to rely on Such agency may be changed by the acts and agreements holders of a majority of the Securityholder Representative as shares of Common Stock at the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this AgreementEffective Time, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon not less than five days’ prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the SecurityholdersParent. If there is a A vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall may be filled by a Securityholders vote in the form holders of a writing executed by the Securityholders entitled to a majority of the number shares of votes referred to in Common Stock at the next sentenceEffective Time. In such eventNo bond shall be required of the Securityholder Representative, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes Securityholder Representative shall be binding on all of not receive any compensation for its services. Notices or communications to or from the Securityholders and Securityholder Representatives’ shall constitute the authorization of notice to or from the Securityholders.
(eb) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be hereunder as Securityholder Representative while acting in good faith and in the exercise of reasonable judgment. The Indemnifying Persons shall indemnify the Securityholder Representative and hold the Securityholder Representative harmless against any loss, liability or for any mistake in fact expense incurred without bad faith on the part of the Securityholder Representative and arising out of or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence acceptance or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any administration of the provisions of this Agreement or its Securityholder Representative’s duties hereunder, including the reasonable fees and it expenses of any legal counsel retained by the Securityholder Representative.
(c) A decision, act, consent or instruction of the Securityholder Representative, shall incur no liability in its capacity as Securityholder Representative to constitute a decision of the Buyer or the Securityholders Indemnifying Persons and shall be fully protected with respect final, binding and conclusive upon the Indemnifying Persons and Parent may rely upon any such decision, act, consent or instruction of the Securityholder Representative as being the decision, act, consent or instruction of the Indemnifying Persons. Parent is hereby relieved from any liability to any action taken, omitted or suffered person for any acts done by it in good faith them in accordance with such decision, act, consent or instruction of the opinion of such counselSecurityholder Representative.
Appears in 1 contract
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS as By virtue of the “Securityholder Representative” to act as approval of the agent Acquisition and this Agreement by each of the Securityholders, each of the Securityholders shall be deemed to have agreed to appoint Lars Sunnanväder as his, her or its, as applicable, agent and attorney-in-fact, as the Securityholder Representative for and on behalf of the Securityholders to take all actions under this Agreement that are to be taken by the Securityholder Representative, including to amend this Agreement, to waive any provision of this Agreement, to negotiate payments due pursuant to this Article IX, to give and receive notices and communications, to authorize payment to any Buyer Indemnified Person from the Indemnity Escrow Fund in satisfaction of claims by any Buyer Indemnified Person, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Buyer Indemnified Person against any of the full Securityholders or by any of the Securityholders against any Buyer Indemnified Person or any dispute between any Buyer Indemnified Person and any of the Securityholders, in each case relating to this Agreement or the transactions contemplated in this Agreement, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Securityholders from time to time upon not less than thirty (30) days prior written notice to CryoLife, Parent and Buyer; provided, however, that the Securityholder Representative may not be removed unless Securityholders representing the holders of at least a two-thirds interest of the Indemnity Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Securityholder Representative may be filled by the Securityholders representing the holders of a majority in interest of the Indemnity Escrow Fund. In the event a vacancy in the position of Securityholder Representative exists for thirty (30) or more days or Securityholder Representative breaches or fails to perform its obligations under this Agreement (after a 30 calendar day advance notice period to cure, which period shall not apply in exigent circumstances), CryoLife, Parent and Buyer shall have the right to petition a court of competent jurisdiction to appoint a replacement Securityholder Representative, and Securityholder Representative shall not receive any compensation for its services from CryoLife, Parent, Buyer or the Company. No bond shall be required of the Securityholder Representative. Notices or communications to or from the Securityholder Representative shall constitute notice to or from the Securityholders.
(b) Each of the Securityholders represents and warrants to CryoLife, Parent and Buyer that the Securityholder Representative has the irrevocable right, power and authority (i) to resolve all questions, disputes, conflicts enter into and controversies concerning Losses as provided in perform this Article 11Agreement and to bind each of the Securityholders to its terms, (ii) to execute give and enter into, on behalf of the Securityholders, receive directions and to take all actions thereunder for notices hereunder and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle make all claims determinations that may be required or that it deems appropriate under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer shall be fully protected Until notified in dealing with writing by the Securityholder Representative under this Agreement that it has resigned, or that it has been removed by at least two-thirds in interest of the Indemnity Escrow Fund, CryoLife, Parent, Buyer and the Escrow Agent may rely conclusively and act upon the authority directions, instructions and notices of the Securityholder Representative to act on behalf named above and, thereafter, upon the directions, instructions and notices of any successor named in a writing executed by a majority-in-interest of the Securityholders. Any payment Indemnity Escrow Fund filed with the Escrow Agent or a successor appointed by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment court of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Lawcompetent jurisdiction.
(d) The Securityholders each hereby authorize the Securityholder Representative to:
(i) Receive all notices or documents given or to be given to the Securityholders pursuant hereto or in connection herewith and to receive and accept service of legal process and file pleadings on behalf of the Securityholders in connection with any suit or proceeding arising under this Agreement; provided, however, that the Securityholders acknowledge and agree that even if Securityholder Representative is unable, unwilling, refuses, resists or objects to receiving notice or receiving or accepting service of process, notice to and service of process with respect to each of the Securityholders shall be effective if made pursuant to Section 11.1;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement and the transactions contemplated in this Agreement as the Securityholder Representative may resign from in its sole discretion deem appropriate; and
(iii) Take such action as the Securityholder Representative may in its sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of CryoLife, Parent or Buyer contained in this Agreement or in any document delivered by Buyer pursuant hereto; (B) taking such other action as the Securityholder Representative is authorized to take under this Agreement; (C) receiving all documents or certificates and making all determinations, in its capacity as Securityholder Representative at Representative, required under this Agreement; and (D) all such actions as may be necessary to carry out any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number transactions contemplated in this Agreement, including the defense and/or settlement of votes referred any claims for which indemnification is sought pursuant to in this Article IX and any waiver of any obligation of Buyer.
(e) A decision, act, consent or instruction of the next sentence. In such eventSecurityholder Representative, each Securityholder including an amendment, extension or waiver of this Agreement, shall have constitute a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all decision of the Securityholders and shall constitute be final, binding and conclusive upon the authorization Securityholders; and the Escrow Agent and CryoLife, Parent and Buyer may rely upon any such decision, act, consent or instruction of the Securityholder Representative as being the decision, act, consent or instruction of the Securityholders. The Escrow Agent and CryoLife, Parent and Buyer are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Securityholder Representative.
(ef) The Securityholders shall indemnify, defend and hold harmless the Securityholder Representative shall not be liable to and its directors, officers, agents and employees from and against any and all Losses arising out of or in connection with the Buyer Securityholder Representative’s execution and performance of this Agreement, or the Securityholders otherwise in its capacity connection with acting as the Securityholder Representative for Representative, in each case as such Losses are incurred. Any such Losses shall be recovered (i) first from any liability distribution of a Securityholder or for any error of judgmentthe Indemnity Escrow Fund, or any act done or step taken or omitted by it believed by it but only if and when required to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as distributed to the construction of any of Securityholders, pursuant to the provisions terms of this Agreement or its duties hereunder, and it shall incur no liability at the time of distribution in its capacity as accordance with written instructions delivered by the Securityholder Representative to the Buyer or Escrow Agent (the “Distributable Funds”), and (ii) secondly, directly from the Securityholders severally and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith not jointly and in accordance with the opinion of such counseltheir respective Pro Rata Portion.
Appears in 1 contract
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS as the “Securityholder Representative” Securityholders agree that it is desirable to act as the agent of the Securityholders with the full power (i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the Securityholders, and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of designate the Securityholder Representative as the acts attorney-in-fact to act for and agreements on behalf of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred for the taking by the Securityholder Representative shall be borne pro rata of any actions and the making by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity of any decisions required or permitted to be taken by Securityholders under or contemplated by this Agreement or any of the other Transaction Documents, including any amendment or waiver of the terms hereof or thereof. Securityholders have designated Xxxxxx XxXxx as such), on a pro rata basis based upon their respective the initial Securityholder Allocation Percentages, againstRepresentative, and the execution and delivery of this Agreement by Securityholders constitutes, to hold the maximum extent permitted under applicable Legal Requirements, irrevocable ratification and approval of such designation by Securityholders and authorization of the Securityholder Representative to serve in such capacity (in including to negotiate and settle any and all disputes with Buyer and its capacity as such) harmless from (Affiliates under this Agreement), and also constitutes a reaffirmation, approval, acceptance, and adoption of, and an agreement to comply with and perform, all of the acknowledgments and agreements made by the Securityholder Representative shall have on behalf of Securityholders in this Agreement and the right to deduct from the Reserve Account orother Transaction Documents. By executing this Agreement, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of accepts the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representativeforegoing designation. The Securityholder Representative may from resign at any time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), and the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined may be removed by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the vote of those Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
whose aggregate Pro Rata Percentages exceed fifty percent (c50%) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf aggregate Pro Rata Percentages of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the all Securityholders. The appointment designation of the Securityholder Representative is coupled with an interest and, except as set forth in the immediately preceding sentence, such designation is irrevocable and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall will not be affected by the death, incapacity, illness, bankruptcy, dissolution, disability, incapacity or other inability to act of any Securityholder. In the principal pursuant event that a Securityholder Representative has resigned or been removed, a new Securityholder Representative shall be promptly appointed by the vote of those Securityholders whose aggregate Pro Rata Percentages exceed fifty percent (50%) of the aggregate Pro Rata Percentages of all Securityholders, such appointment to become effective upon the written acceptance thereof by the new Securityholder Representative. Written notice of any applicable Lawsuch resignation, removal, or appointment of a Securityholder Representative shall be delivered by the Securityholder Representative to Buyer promptly after such action is taken, and neither Buyer nor any of its Affiliates will be charged with knowledge of such resignation, removal, or appointment until Buyer’s actual receipt of such written notice.
(db) The Securityholder Representative may resign from its capacity will have such powers and authority as are necessary or appropriate to carry out the functions assigned to the Securityholder Representative at under this Agreement and in any time other Transaction Document. Buyer and its Affiliates are entitled to rely on the actions taken by written notice delivered the Securityholder Representative without independent inquiry into the capacity of the Securityholder Representative to so act. All actions, notices, communications, and determinations by the Securityholder Representative to carry out such functions will conclusively be deemed to have been authorized by, and will be binding upon, Securityholders, and no Securityholder has any right to object, dissent, protest, or otherwise consent to the Buyer and same. Neither the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for nor any reason, such vacancy shall of its Representatives will have any Liability to Securityholders with respect to actions taken or omitted to be filled by a Securityholders vote in the form of a writing executed taken by the Securityholders entitled Securityholder Representative in such capacity (or by any of its Representatives in connection therewith), except with respect to a majority of the number of votes referred to in the next sentenceSecurityholder Representative’s willful misconduct. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not will be liable entitled to the Buyer or the Securityholders in its capacity engage such counsel, experts, and other agents and consultants as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing deems necessary in connection with this Agreement except exercising the Securityholder Representative’s powers and performing the Securityholder Representative’s function hereunder and (in the case absence of gross negligence or willful misconduct by iton the part of the Securityholder Representative) is entitled to conclusively rely on the opinions and advice of such Persons. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as is entitled to the construction of any of the provisions of this Agreement or its duties hereunderfull reimbursement for all expenses, disbursements, and it shall incur no liability advances (including fees and disbursements of counsel, experts, and other agents and consultants) incurred by the Securityholder Representative in such capacity, and to full indemnification against any Damages arising out of actions taken or omitted to be taken in its capacity as Securityholder Representative (except for those arising out of the Securityholder Representative’s willful misconduct), including the costs and expenses of investigation and defense of claims, from Securityholders. In furtherance of the foregoing, notwithstanding anything in this Agreement to the Buyer contrary, the Securityholder Representative has the power and authority to set aside and retain additional funds paid to or received by the Securityholders and shall Securityholder Representative, or direct payment of additional funds to be fully protected with respect paid to any action takenof Securityholders pursuant to this Agreement at the Closing or thereafter, omitted or suffered by it to satisfy such Damages (including to establish such reserves as the Securityholder Representative determines in good faith to be appropriate for such costs and expenses that are not then known or determinable).
(c) The provisions of this Section 7.11 in accordance no way impose any obligations on Buyer or any of its Affiliates. In particular, notwithstanding any notice received by Buyer or any of its Affiliates to the contrary, Buyer and its Affiliates (i) are fully protected in relying upon and are entitled to rely upon, and will have no Liability to any Securityholder with respect to, actions, omissions to act, decisions, and determinations of the Securityholder Representative, (ii) are entitled to assume that all actions, omissions to act, decisions, and determinations of the Securityholder Representative are fully authorized by Securityholders, and (iii) are entitled to deal exclusively with the opinion Securityholder Representative on all matters relating to this Agreement and the other Transaction Documents. All deliveries made by Buyer or any of its Affiliates to the Securityholder Representative or at the direction of the Securityholder Representative are made on behalf of Securityholders and constitute full performance of the delivery obligations of Buyer and its Affiliates under this Agreement and the other Transaction Documents. Neither Buyer nor any of its Affiliates will be liable for allocation of particular deliveries and payments of such counselamounts at the direction of the Securityholder Representative.
Appears in 1 contract
Samples: Stock Purchase Agreement (Computer Programs & Systems Inc)
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS By virtue of the approval of the Merger and this Agreement by the Primaeva Stockholders, each of the Indemnifying Parties shall be deemed to have agreed to appoint Xxxxxxx Healthcare V, LP in as their agents and attorney in facts, as the “Securityholder Representative” to act as the agent of the Securityholders with the full power (i) to resolve all questions, disputes, conflicts Representative for and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the SecurityholdersIndemnifying Parties to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Funds in satisfaction of claims by such Indemnified Party pursuant to Article VIII, to object to such payments, to audit and dispute Syneron’s calculation of Net Revenue and Milestone Payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Indemnifying Party or by any such Indemnifying Party against any Indemnified Party or any dispute between any Indemnified Party and any such Indemnifying Party, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions thereunder that are either (i) necessary or appropriate in the judgment of the Securityholder Representative for and on their behalf, including but not limited the authorization accomplishment of payments from the Reserve Account foregoing or (including any increase thereof pursuant to Section 2.04(b)(i)ii) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from specifically mandated by the Buyer monies payable to the Securityholders in accordance with the provisions terms of this Agreement. Such agency may be changed by the Indemnifying Parties from time to time; provided, (v) however, that the Securityholder Representative may not be removed unless holders of a majority of the Total As-Converted Outstanding Common Shares agree to otherwise take such actions (or refrain from taking actions) removal and execute such documents (including any modificationsto the identity of the substituted agent. Notwithstanding the foregoing, waivers or amendments thereto) on a vacancy in the Securityholders’ behalf in connection with this Agreement as position of Securityholder Representative may be filled by the holders of a majority of the Total As-Converted Outstanding Common Shares. No bond shall be required of the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by not receive any compensation for its services. Notices or communications to or from the Securityholders based upon their respective initial Securityholder Allocation PercentagesRepresentatives shall constitute notice to or from the Indemnifying Parties.
(b) The Securityholders hereby agree severally Securityholder Representative will not be entitled to indemnify any fee, commission or other compensation for the performance of its service hereunder, but will be entitled to the payment of all of its out-of-pocket expenses incurred as Securityholder Representative to be paid from the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this AgreementReserve.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be hereunder as Securityholder Representative while acting in good faith and in the exercise of reasonable judgment. The Indemnifying Parties shall indemnify the Securityholder Representative and hold the Securityholder Representative harmless against any loss, liability or for any mistake in fact expense incurred without gross negligence or law, bad faith on the part of the Securityholder Representative and arising out of or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence acceptance or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any administration of the provisions Securityholder Representative’s duties hereunder. A decision, act, consent or instruction of the Securityholder Representative, including an amendment, extension or waiver of this Agreement or its duties hereunderpursuant to Section 10.3 hereof, and it shall incur no liability in its capacity as Securityholder Representative to constitute a decision of the Buyer or the Securityholders Indemnifying Parties and shall be fully protected with respect final, binding and conclusive upon the Indemnifying Parties; and Syneron may rely upon any such decision, act, consent or instruction of the Securityholder Representative as being the decision, act, consent or instruction of the Indemnifying Parties. The Escrow Agent and Syneron are hereby relieved from any liability to any action taken, omitted or suffered person for any acts done by it in good faith them in accordance with such decision, act, consent or instruction of the opinion either of such counselSecurityholder Representative.
Appears in 1 contract
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS Immediately upon the approval of this Agreement by the Company Holder Approval, each Holder shall be deemed to have consented to the appointment of Shareholder Representative Services LLC as the representative, agent and attorney-in-fact of the Securityholders (the “Securityholder Representative” ”), with full power of substitution to act as the agent of the Securityholders with the full power (i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the Securityholders, Securityholders to the extent and to take all actions thereunder for and on their behalf, including but not limited in the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) manner set forth in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable Escrow Agreement and any agreements ancillary to the Securityholders in accordance with foregoing. To the provisions of this Agreementfullest extent permitted by Law, (v) to otherwise take such actions (or refrain from taking all decisions, actions) , consents and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred instructions by the Securityholder Representative shall be borne pro rata by binding upon the Securityholders based upon their respective initial and no such Person shall have the right to object to, dissent from, protest or otherwise contest any such decision, action, consent or instruction. The Parent and Merger Sub shall be entitled to conclusively rely on any decision, action, consent or instruction of the Securityholder Allocation PercentagesRepresentative as being the decision, action, consent or instruction of the Securityholders, and, to the fullest extent permitted by Law, the Parent and Merger Sub are hereby relieved from any liability to any Person for acts done by them in accordance with any such decision, act, consent or instruction.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, againstmay resign at any time, and to hold may be removed for any reason or no reason by the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses vote or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none written consent of the Securityholders shall be liable for any portion holding a majority of such liabilitiesthe aggregate Fully Diluted Share Number as of the Effective Time (the “Majority Holders”). In the event of the death, obligationsincapacity, losses, damages, penalties, actions, judgments, suits, costs, expenses resignation or disbursements resulting solely from the gross negligence or willful misconduct removal of the Securityholder Representative. The , a new Securityholder Representative may from time to time submit invoices shall be appointed by the vote or written consent of the Majority Holders. Notice of such vote or a copy of the written consent appointing such new Securityholder Representative shall be sent to the Securityholders covering such expenses and/or liabilities Parent and, after the Effective Time, to the Surviving Corporation, such appointment to be effective upon the request later of any Securityholderthe date indicated in such consent or the date such consent is received by the Parent and, after the Effective Time, the Surviving Corporation; provided that until such notice is received, the Parent, Merger Sub and the Surviving Corporation, as applicable, shall provide such Securityholder with an accounting be entitled to conclusively rely on the decisions, actions, consents and instructions of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the prior Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements as described in this Section 11.04 shall survive termination of this Agreement2.15(a).
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step actions taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement, the Escrow Agreement or any agreements ancillary to the foregoing, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence, willful misconduct, or fraud. The Securityholders shall severally, but not jointly (based on each Securityholder’s Pro Rata Percentage), indemnify, defend and hold harmless the Securityholder Representative from and against any and all losses, liabilities, claims, penalties, fines, forfeitures, actions, damages, fees, costs and expenses, including reasonable attorneys’ fees (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) and disbursements (collectively, “Representative Losses”), arising out of and in connection with its activities as Securityholder Representative under this Agreement, the Escrow Agreement or otherwise, in each case as such Representative Losses are suffered or incurred; provided, that in the case of event that any such Representative Loss is adjudicated to have been directly caused by the gross negligence negligence, fraud, or willful misconduct of the Securityholder Representative, the Securityholder Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence, fraud, or willful misconduct. If not paid directly to the Securityholder Representative by itthe Securityholders, any such Representative Losses may be recovered by the Securityholder Representative (i) first from the funds in the Expense Fund and (ii) after the exhaustion of the amounts in the Expense Fund, from the amounts in the Indemnity Escrow Fund, but only at such time as such amounts in the Indemnity Escrow Fund are otherwise distributable to the Securityholders pursuant to the terms hereof and the Escrow Agreement because all claims for indemnification hereunder against such amounts have been fully resolved, in accordance with written instructions delivered by the Securityholder Representative to the Escrow Agent; provided that while this Section 2.15(c) allows the Securityholder Representative to be paid from the Expense Fund and the Indemnity Escrow Fund, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as such Representative Losses are suffered or incurred, nor does it prevent the Securityholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Securityholder Representative be required to advance its own funds on behalf of the Securityholders or otherwise. The Securityholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Securityholder Representative or the termination of this Agreement.
(d) The approval of this Agreement by the Company Holder Approval 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, including the covenants and agreements included in Section 7.2.
(e) The Expense Fund will be controlled by the Securityholder Representative solely for payment of the Representative Losses incurred by the Securityholder Representative in connection with this Agreement, the Escrow Agreement and any agreements ancillary to the foregoing. The Securityholder Representative will retain the Expense Fund during such period as any portion of the Indemnity Escrow Fund is held by the Escrow Agent and for such further period where the services of the Securityholder Representative are required pursuant to the provisions of this Agreement, the Escrow Agreement and any agreements ancillary to the foregoing, and the Securityholder Representative shall have sole discretion regarding the use such funds to pay the fees and expenses incurred by the Securityholder Representative in the performance of its duties (as determined in its sole discretion); provided, however following such period and with the consent of the Securityholder Representative, the remaining amounts in the Expense Fund will be distributed to the Paying Agent for further distribution to the Participating Securityholders (in accordance with their respective Pro Rata Percentages). The Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Securityholder Representative any ownership right that they may seek otherwise have had in any such interest or earnings. The Securityholder Representative will not be liable for any loss of principal of the advice Expense Fund other than as a result of reputable legal counsel its fraud or willful misconduct. The Securityholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of any dispute or question bankruptcy. For tax purposes, the Expense Fund will be treated as to the construction of any of the provisions of this Agreement or its duties hereunder, having been received and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or voluntarily set aside by the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with at the opinion time of such counselClosing.
Appears in 1 contract
Samples: Merger Agreement (NICE Ltd.)
Securityholder Representative. (a) Each By approving this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Company Securityholder hereby appoints ACAS shall have irrevocably authorized and appointed Securityholder Representative as such Person's representative and attorney-in-fact to act on behalf of such Person for all purposes in connection with this Agreement, the “Additional Agreements and the agreements ancillary hereto and thereto. The Securityholder Representative” to Representative shall act as the agent representative of the Company Securityholders in respect of all matters arising under this Agreement, the Additional Agreements and the agreements ancillary hereto and thereto, and shall be authorized to act, or refrain from acting, with the full power (i) respect to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) any actions to execute and enter into, be taken by or on behalf of the Securityholders, and to take all actions thereunder for and on their behalfCompany Securityholders or the Securityholder Representative, including but not limited to enforce any rights granted to the authorization of payments from Company Securityholders hereunder and thereunder, in each case as the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims Securityholder Representative believes is necessary or appropriate under this Agreement, (iv) to receive from the Buyer monies payable to Additional Agreements and/or the agreements ancillary hereto and thereto, for and on behalf of the Company Securityholders. The Company Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take shall be bound by all such actions taken by the Securityholder Representative and the Company Securityholders shall not be permitted to take any such actions.
(or refrain from taking actionsb) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement The Securityholder Representative is serving as the Securityholder RepresentativeRepresentative solely for purposes of administrative convenience, in its sole discretion, deems proper, (vi) to pay, release and/or distribute and is not personally liable for any or all of the Reserve Account obligations of the Company, any of its Subsidiaries or otherwise to pay Losses the Company Securityholders hereunder, each in and Parent (on behalf of itself and its sole discretion, (viiAffiliates) agrees that it will not look to adjust the Securityholder Allocation Percentage of Representative or the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions underlying assets of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on for the acts and agreements satisfaction of any obligations of the Securityholder Representative as Company, any of its Subsidiaries or the acts and agreements of the Company Securityholders. The Securityholder Representative shall not be entitled liable for any error of judgment, or any action taken, suffered or omitted to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as be taken, in connection with the performance by the Securityholder Representative deems to be reasonably necessary of the Securityholder Representative’s duties or appropriate in connection with its performance the exercise by the Securityholder Representative of its obligations the Securityholder Representative’s rights and remedies under this Agreement, and all such fees and expenses incurred by any Additional Agreement or any agreement ancillary hereto or thereto, except in the Securityholder Representative case of its intentional fraud or willful misconduct. No bond shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct required of the Securityholder Representative. The Securityholder Representative may from time consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to time submit invoices be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Securityholder Representative shall not have any duty to ascertain or to inquire as to the Securityholders covering such expenses and/or liabilities and, upon the request performance or observance of any Securityholderof the terms, shall provide such Securityholder with an accounting covenants or conditions of all expenses paidthis Agreement or any Additional Agreement or any agreement ancillary hereto or thereto. In addition to any other rights or remedies (including Section 11.02(d))Without limiting the generality of the foregoing, the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it shall have the full power and authority to be owed to interpret all the Securityholder Representative against the Reserve Account terms and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination provisions of this AgreementAgreement and the Additional Agreements or any agreement ancillary hereto or thereto, and to consent to any amendment hereof or thereof on behalf of the Company Securityholders and their respective successors.
(c) The Buyer Each Company Securityholder, jointly and severally, agrees to indemnify and hold harmless the Securityholder Representative against all fees and expenses (including legal fees and expenses) and other amounts payable or incurred by the Securityholder Representative in connection with the performance of any of its duties under this Agreement or the Additional Agreements, including any such fees, expenses, or other amounts that may be incurred by the Securityholder Representative in connection with any Action to which the Securityholder Representative is made a party by reason of the fact it is or was acting as the Securityholder Representative pursuant to the terms of this Agreement or the Additional Agreements. Notwithstanding the foregoing in this clause (c), in no event will the indemnity contemplated in this clause (c) be paid by the Company Securityholders to the Securityholder Representative in the form of Indemnification Escrow Shares released pursuant to the Indemnification Escrow Agreement.
(d) Parent, the Indemnified Party and the Indemnified Party Representative shall be fully protected in dealing entitled to rely on all statements, representations, decisions of, and actions taken or omitted to be taken by, the Securityholder Representative as being the statements, representations, decisions of, and actions of Company Securityholders with respect to the matters relating to this Agreement or any Additional Agreement or any agreement ancillary hereto or thereto. Parent, the Indemnified Party and the Indemnified Party Representative shall be entitled to deal solely with the Securityholder Representative under (and shall not be required to deal with any Company Securityholder, in his, her or its capacity as such) with respect to the matters relating to this Agreement or any Additional Agreement or any agreement ancillary hereto or thereto.
(e) The Securityholder Representative may resign at any time by giving twenty (20) days’ notice to Parent and may rely upon the authority Company Securityholders; provided, however, in the event of the resignation or removal of the Securityholder Representative, a new Securityholder Representative (who shall be reasonably acceptable to act on behalf Parent) shall be appointed by the vote or written consent of a majority of the Securityholders. Any payment shares of Parent Common Stock, voting together as a single class (with each such share entitled to one vote), then held by the Buyer Company Securityholders as of immediately prior to the Securityholder Effective Time; provided, further, that if any such vacancy is not so filled within thirty (30) days following the occurrence of such vacancy, the Indemnified Party Representative to the extent authorized under this Agreement shall be considered entitled to appoint a payment by successor Securityholder Representative, and the Buyer provisions of this Section 12.19 shall apply in all respects to the Securityholders. such successor Securityholder Representative
(f) The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder Company Securityholders in any manner or for any reason. This power of attorney authority granted to the Securityholder Representative shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the any principal pursuant to any applicable Law.
(d) The . Xxxx Xxxxx hereby accepts his appointment as the initial Securityholder Representative. Any decision, act, consent or instruction taken by the Securityholder Representative may resign from its capacity as in accordance with this Section 12.19 on behalf of Company Securityholders (each, an “Securityholder Representative at any time by written notice delivered to the Buyer Authorized Action”) shall be final, binding and the Securityholders. If there is a vacancy at any time in the position of conclusive on Company Securityholders as fully as if such Persons had taken such Securityholder Representative for any reasonAuthorized Action. The Indemnified Party agrees that the Securityholder Representative, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative Representative, shall have no liability to the Indemnified Party for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion of such counselAuthorized Action.
Appears in 1 contract
Samples: Merger Agreement (Abri SPAC I, Inc.)
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS as the “Securityholder Representative” By delivering a signature page to act as the agent of the Securityholders with the full power (i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the Securityholders, and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunderbecoming a party hereto, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) Holder designates and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of appoints the Securityholder Representative as the acts such Holder’s agent and agreements attorney-in-fact with full power and authority to act for and on behalf of the Securityholderssuch Holder in all matters pertaining to this Agreement. The Securityholder Representative shall be entitled Notices and communications sent to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems by Parent shall be deemed notices and communications to be reasonably necessary or appropriate in connection with its performance each of its obligations under this Agreementthe Holders, and all such fees notices and expenses incurred communications sent to Parent by the Securityholder Representative shall be borne pro rata deemed notices and communications by each of the Securityholders based Holders, in each case for all purposes under this Agreement. Any document delivered to the Securityholder Representative pursuant to this Agreement shall be deemed delivered to each Holder. A decision, consent, waiver, instruction or any other act or omission to act on the part of the Securityholder Representative shall constitute an act or omission by each of the Holders and shall be final, binding and conclusive upon each of them. Parent may conclusively rely upon such act or omission on the part of the Securityholder Representative as being the act or omission of each of the Holders, and Parent and each of its directors, officers, employees and agents are hereby relieved from any liability for any acts or omissions on their respective initial part taken in accordance with any such act or omission on the part of the Securityholder Allocation PercentagesRepresentative. As used in this Agreement, the term “Securityholder Representative” includes any successor Securityholder Representative appointed in accordance with the terms of its engagement.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such)Holders shall indemnify, on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, defend and to hold the Securityholder Representative (in its capacity as such) harmless from (against, and the Securityholder Representative shall have no liability to the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount Holders in respect of), any and all losses, liabilities, obligations, lossesexpenses, damages, claims, penalties, fines, forfeitures, actions, judgmentsout of pocket fees, suitscosts and expenses (including reasonable and documented fees and expenses of counsel) (collectively, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder “Representative in such capacity in any way relating to or Losses”) arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of with the Securityholder Representative’s execution and performance of the Transaction Documents, in each case as such Representative Loss is suffered or incurred absent the Securityholder Representative’s or its Affiliates’ gross negligence, fraud or willful misconduct. The Securityholder Representative may from time to time submit invoices may, in its discretion, direct the disbursement of a portion of any payment payable to the Securityholders covering such expenses and/or liabilities and, upon Holders pursuant to the request Merger Agreement as reimbursement in respect of any Securityholdersuch Representative Loss, shall provide prior to disbursing the remaining amount of such Securityholder with an accounting of all expenses paidpayment to the Holders. In addition Notwithstanding anything to any other rights or remedies (including Section 11.02(d))the contrary herein, the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined provisions of Section 6.7 of the Merger Agreement shall be deemed incorporated by it to be owed reference herein and shall apply with respect to the Securityholder Representative against the Reserve Account parties hereto mutatis mutandis and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If that there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of conflict between the provisions of this Section 6.1 and Section 6.7 of the Merger Agreement, the provisions of Section 6.7 of the Merger Agreement or its duties hereundershall govern. For the avoidance of doubt, and it shall incur no liability in its capacity as this Section 6.1(b) is an agreement solely among the Securityholder Representative to and the Buyer or the Securityholders Holders and shall in no way be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion of such counselbinding on Parent.
Appears in 1 contract
Samples: Registration Rights Agreement (HeartWare International, Inc.)
Securityholder Representative. (a) Each Securityholder Nerveda, LLC is hereby appoints ACAS appointed, authorized and empowered to act as the “Securityholder Representative” , for the benefit of each Escrow Participant, as the exclusive agent and attorney-in-fact to act on behalf of each Escrow Participant in connection with, and to facilitate the consummation of, the Transactions, to take any and all actions and make any and all decisions required or permitted to be taken or made by the Securityholder Representative under this Agreement or the Escrow Agreement, including the exercise of the right to (i) give and receive notices and communications under Section 6 or the Escrow Agreement; (ii) authorize delivery to Parent of a number of shares of Escrowed Securities from the Escrow Fund in satisfaction of claims for indemnification made by Parent under Section 6; (iii) object to claims for indemnification made by Parent under Section 6; (iv) agree to, negotiate, enter into settlements and compromises of and comply with mediation awards and court orders with respect to claims for indemnification made by Parent under Section 6; (v) grant any consent, waiver or approval on behalf of the Escrow Participants under this Agreement; and (vi) take all actions necessary or appropriate in the good faith judgment of the Securityholder Representative for the accomplishment of the foregoing. Each Escrow Participant irrevocably appoints the Securityholder Representative as the sole representative of the Escrow Participants to act as the agent of the Securityholders with the full power (i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the Securityholders, and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) such Escrow Participants in connection with Losses the foregoing. The grant of authority provided for herein is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Escrow Participant and shall survive the consummation of the Merger and the Transactions. The Securityholder Representative may resign at any time by notice to Parent and the identity of the Securityholder Representative may be changed, and a successor Securityholder Representative may be appointed, from time to time (including in the event of the resignation or the death, disability or other incapacity of the Securityholder Representative) by Escrow Participants whose aggregate Participation Percentages exceed 50%, and any such successor shall succeed the Securityholder Representative as provided hereinSecurityholder Representative hereunder. No bond shall be required of the Securityholder Representative, and the Securityholder Representative shall receive no compensation for its services. From and after the Effective Time, a decision, act, consent or instruction of the Securityholder Representative shall be final, binding and conclusive upon each Escrow Participant and may be relied upon by Parent.
(iiib) to negotiate and/or settle all claims under this AgreementThe Securityholder Representative shall not be liable for any liability, loss, damage, penalty, fine, cost or expense incurred by the Securityholder Representative while acting in good faith and in the exercise of its good faith judgment and arising out of or in connection with the acceptance or administration of its duties or the exercise of its rights hereunder (iv) to receive from the Buyer monies payable it being understood that any act done or omitted pursuant to the Securityholders advice of counsel, public accountants or other independent experts experienced in accordance the matter at issue shall be conclusive evidence of such good faith). Each Escrow Participant shall, severally and not jointly and in proportion to its Participation Percentage in an amount not to exceed the proceeds actually received by such Escrow Participant in the Merger, indemnify, defend and hold harmless the Securityholder Representative and its successors and assigns from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs and expenses (including attorneys’ fees and court costs) (collectively, “Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the provisions Securityholder Representative pursuant to the terms of this Agreement, (v) to otherwise take in each case as such actions (Representative Loss is incurred or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement as the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholderssuffered. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder recover any Representative deems to be Losses reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata in connection with actions taken by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to the terms of this Agreement or in connection herewith in such capacity; providedthe Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs), that none without the requirement of any consent or approval by Parent or any other Person. All of the Securityholders shall be liable for any portion of such liabilitiesindemnities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed immunities and powers granted to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in under this Section 11.04 Agreement shall survive the Merger or any termination of this Agreement.
(c) The Buyer Representative Losses shall be fully protected satisfied from the Securityholder Representative Reserve and, to the extent the amount of the Representative Losses exceeds the available Securityholder Representative Reserve, from each Escrow Participant, severally and not jointly and in dealing with proportion to its Participation Percentage in an amount not to exceed the proceeds actually received by such Escrow Participant in the Merger. As soon as practicable after the date on which the final obligation of the Securityholder Representative under this Agreement and may rely upon the authority Escrow Agreement have been discharged, the Securityholder Representative shall remit any amounts remaining in the Securityholder Representative Reserve to the Escrow Participants based on their Participation Percentages. For Tax purposes, Parent shall be deemed to have paid each Escrow Participant its, his or her share of the Securityholder Representative Reserve and then each Escrow Participant shall be deemed to act on behalf of the Securityholders. Any payment by the Buyer have voluntarily contributed such amount to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment Reserve held by the Buyer to Securityholder Representative (and, for the Securityholders. The appointment avoidance of doubt, the amount of the Securityholder Representative Reserve that is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney returned to such Escrow Participant shall not again be affected by the death, illness, dissolution, disability, incapacity subject to information reporting or other inability to act of the principal pursuant to any applicable LawTax withholding).
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered From and after the Effective Time, Parent shall cause the Surviving Corporation to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as provide the Securityholder Representative with reasonable access to information about the Surviving Corporation and the reasonable assistance of the officers and employees of Parent and the Surviving Corporation for any liability purposes of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with performing its duties and exercising its rights under this Agreement except in and the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion of such counselother Transaction Documents.
Appears in 1 contract
Samples: Merger Agreement (Amarantus Bioscience Holdings, Inc.)
Securityholder Representative. (a) Each Securityholder Nautic Capital VIII, L.P. is hereby appoints ACAS appointed as the “Securityholder Representative” Representative and as the true and lawful agent and attorney in fact of the Sellers with full power of substitution to act as jointly in the agent name, place and stead of the Securityholders with the full power (i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the Securityholders, and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) Sellers in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders Transactions in accordance with the provisions terms of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on . Without limiting the Securityholders’ behalf in connection with this Agreement as the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all generality of the Reserve Account or otherwise to pay Losses hereunderforegoing, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have full organizational power and authority (but not the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure obligation) to take action pursuant all actions under the Transaction Documents that are to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of taken by the Securityholder Representative. The Securityholder Representative may from time take any and all actions that it believes are necessary or appropriate under the Transaction Documents, including executing the Transaction Documents as Securityholder Representative, giving and receiving any notice or instruction permitted or required under the Transaction Documents by the Securityholder Representative, interpreting all of the terms and provisions of the Transaction Documents, authorizing payments to time submit invoices to the Securityholders covering such be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and/or liabilities and, upon the request and other obligations of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), incurred by the Securityholder Representative mayin connection with the Transaction Documents, upon prior defending, compromising or contemporaneous written noticesettling all claims or disputes under this Agreement, offset conducting negotiations with the Purchaser and its Representatives regarding such claims or disputes, taking any amounts determined all other actions specified in or contemplated by it the Transaction Documents, and engaging counsel, accountants or other representatives in connection with the foregoing matters. The Securityholder Representative shall have the full power and authority to be owed interpret all the terms and provisions of the Transaction Documents and to consent to any amendment, supplement or waiver hereof or thereof in its capacity as Securityholder Representative. All acts of the Securityholder Representative against the Reserve Account and against any amounts hereunder in its capacity as such shall be deemed to be paid acts on behalf of the Sellers and not of the Securityholder Representative individually.
(b) The Securityholder Representative shall have the authority (but not the obligation) to:
(i) Receive all notices or documents given or to be given to Securityholder Representative pursuant hereto or to the Securityholders hereunderother Transaction Documents or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the other Transaction Documents;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the other Transaction Documents and the transactions contemplated hereby or thereby as the Securityholder Representative may in its sole discretion deem appropriate; and
(iii) After the date hereof, take such action as the Securityholder Representative may in its sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of the Purchaser and/or Merger Sub, or any breach of a covenant or agreement by the Purchaser and/or Merger Sub, in each case contained in this Agreement or in any document delivered by the Purchaser or Merger Sub pursuant hereto; (B) taking such other action as the Securityholder Representative is authorized to take under any Transaction Document; (C) making all other elections or decisions that the Securityholder Representative is authorized to make under any Transaction Document; (D) receiving all proceeds and moneys payable to Sellers, documents or certificates and making all determinations, in its capacity as Securityholder Representative, required under any Transaction Document; and (E) all such actions as may be necessary to carry out any of the Transactions, including the defense and/or settlement of any claims or disputes under this Agreement and any waiver of any obligation of the Purchaser, Merger Sub and/or the Surviving Company. The agreements in this Section 11.04 Securityholder Representative shall survive termination not by reason of this AgreementAgreement have a fiduciary relationship in respect of any Seller, except in respect of amounts received on behalf of a Seller.
(c) The Buyer shall be fully protected in dealing with Notwithstanding any provision herein to the contrary, the Securityholder Representative under this Agreement and may rely upon shall have no duties to the authority of Sellers or have any liability to the Sellers with respect to any action taken or not taken, decision made or instruction given by the Securityholder Representative to act on behalf of in connection with the Securityholders. Any payment by the Buyer to Transaction Documents, other than resulting from the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder in any manner Representative’s bad faith or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Lawwillful misconduct.
(d) The Securityholder Representative may resign from shall be indemnified by Sellers for and shall be held harmless against any loss, liability or expense incurred by the Securityholder Representative or any of its capacity Affiliates and any of their respective direct or indirect equityholders, consultants, attorneys, accountants, brokers or other Representatives, in each case relating to the Securityholder Representative’s conduct as Securityholder Representative at any time Representative, other than losses, liabilities or expenses resulting from the Securityholder Representative’s bad faith or willful misconduct in connection with its performance under the Transaction Documents. This indemnification shall survive the termination of this Agreement. The costs of such indemnification (including the costs and expenses of enforcing this right of indemnification) shall be first deducted from the Holdback Account and shall thereafter be individual obligations of the Sellers in accordance with the Allocation Statement, which obligations may be satisfied as contemplated by written notice delivered to the Buyer and the SecurityholdersSection 10.10(f). If there is a vacancy at any time in the position of The Securityholder Representative may, in all questions arising under any Transaction Document, rely on the advice of counsel and for any reasonanything done, such vacancy shall be filled by a Securityholders vote omitted or suffered in the form of a writing executed good faith by the Securityholders entitled to a majority of Securityholder Representative in accordance with such advice, the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer Sellers, the Escrow Agent or any other Person. In no event shall the Securityholders Securityholder Representative be liable to the Sellers hereunder or in connection herewith for (i) any indirect, punitive, special or consequential damages or (ii) any amounts other than those that are satisfied out of the Holdback Account.
(e) In the performance of its duties hereunder, the Securityholder Representative shall be entitled to (i) rely upon any document or instrument reasonably believed to be genuine, accurate as to content and signed by any Seller or any Party hereunder and (ii) assume that any Person purporting to give any notice in accordance with the provisions hereof has been duly authorized to do so.
(f) The Securityholder Representative is authorized, in its sole discretion, to comply with final, nonappealable Orders issued or enacted by any Governmental Entity with respect to the Escrow Account and the Holdback Account. If any portion of the Escrow Amount and/or the Securityholder Expense Amount is at any time attached, garnished or levied upon under any court order, or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part thereof, then and in any such event, the Securityholder Representative is authorized, in its sole discretion, but in good faith, to rely upon and comply with any such order, writ, judgment or decree which it is advised by legal counsel selected by it is binding upon it without the need for appeal or other action; and if the Securityholder Representative complies with any such order, writ, judgment or decree, it shall not be liable to any Seller or to any other Person by reason of such compliance even though such order, writ, judgment or decree may be subsequently reversed, modified, annulled set aside or vacated.
(g) The Securityholder Expense Amount shall be withheld from amounts otherwise payable to the Sellers pursuant to this Agreement at the Closing and contributed by the Purchaser on behalf of the Sellers to the Holdback Account as provided in Section 2.1(b), for the Securityholder Representative to hold on behalf of the Sellers as a fund for any out of pocket fees and expenses (including legal, accounting and other advisors’ fees and expenses, if applicable) incurred by the Securityholder Representative in its capacity as the Securityholder Representative and as a fund, at the sole discretion of the Securityholder Representative, to pay any amounts owing to the Purchaser under this Agreement. All amounts deposited to the Holdback Account shall be treated for any liability all purposes of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except as having been paid to the Sellers based on the Allocation Statement, and the Purchaser shall have no obligation to any Seller with respect to the Securityholder Expense Amount or the Holdback Account. Notwithstanding anything to the contrary contained in this Section 10.10, with respect to any out of pocket fees and expenses (including legal, accounting and other advisors’ fees and expenses, if applicable) incurred by the Securityholder Representative in its capacity as the Securityholder Representative, the Securityholder Representative shall be entitled, in its sole discretion, to have each Seller pay such Seller’s respective portion (determined in accordance with the Allocation Statement) of any out of pocket fees and expenses (including legal, accounting and other advisors’ fees and expenses, if applicable) incurred by the Securityholder Representative in its capacity as the Securityholder Representative, whether such fees and expenses are paid from any amounts remaining in the case Holdback Account or otherwise. In no event will the Securityholder Representative be required to advance its own funds or be liable on behalf of gross negligence the Sellers or willful misconduct by itotherwise. The Securityholder Representative may seek the advice of reputable legal counsel shall distribute (or cause to be distributed) any amounts in the event of any dispute or question as Holdback Account to the construction of any of Sellers, in accordance with the provisions of this Agreement Allocation Statement at such time or times as the Securityholder Representative shall determine in its sole discretion.
(h) If the Securityholder Representative or its successors or assigns, as the case may be, advise the Sellers that he, she or it is unavailable to perform his, her or its duties hereunder, and it shall incur no liability in its capacity as within three (3) Business Days of notice of such advice, an alternative Securityholder Representative will be appointed by a majority in interest of the Units and will become effective upon not less than ten (10) Business Days’ of prior written notice to the Buyer or the Securityholders and Purchaser. Any references in this Agreement to Securityholder Representative shall be fully protected deemed to include any duly appointed successor Securityholder Representative.
(i) Purchaser, Merger Sub and Surviving Company will have the right to rely upon all actions taken or omitted to be taken by Securityholder Representative pursuant to this Agreement and/or any Transaction Document, all of which actions or omissions will be legally binding upon Sellers. The grant of authority provided for herein (i) is coupled with respect to an interest and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any action takenSeller, omitted or suffered by it in good faith in accordance with and (ii) will survive the opinion consummation of such counselthe Merger.
Appears in 1 contract
Samples: Securities Purchase Agreement (Diplomat Pharmacy, Inc.)
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS Shareholder Representative Services LLC has been designated as the representative of the Securityholders and their attorney-in-fact (the “Securityholder Representative” ”), with full power of substitution to act on behalf of the Securityholders (only with respect to their interests as Securityholders) to the extent and in the manner set forth in this Agreement and the Escrow Agreement but not with respect to any amendments to this Agreement or the Escrow Agreement. The Company has designated the Securityholder Representative as the agent representative of the Securityholders for purposes of this Agreement and the Escrow Agreement, and approval of this Agreement and the Merger by such holders shall constitute ratification and approval of such designation on the terms set forth herein. All decisions, actions, consents and instructions by the Securityholder Representative with respect to this Agreement and the Escrow Agreement (but not with respect to any amendments hereto or thereto) shall be binding upon all of the Securityholders with respect to their interests as Securityholders, and no such Securityholder shall have the full power (i) right to resolve all questionsobject to, disputesdissent from, conflicts protest or otherwise contest the same. The Surviving Corporation and controversies concerning Losses the Acquiror shall be entitled to conclusively rely upon, without independent inquiry, verification or investigation, any such decision, action, consent or instruction of the Securityholder Representative as provided in this Article 11being the decision, (ii) to execute and enter intoaction, on behalf consent or instruction of the Securityholders, and the Acquiror and Merger Sub are hereby relieved from any liability to take all actions thereunder any Person for acts done by them in accordance with any such decision, act, consent or instruction.
(b) By way of amplification and not limitation, as Securityholder Representative, the Securityholder Representative shall be authorized and empowered, as agent of and on behalf of all Securityholders (only with respect to their behalf, including but not limited the authorization of payments from the Reserve Account interests as Securityholders): (including any increase thereof pursuant i) to Section 2.04(b)(i)) in connection with Losses give and receive notices and communications as provided herein, to object to any Acquiror Indemnification Claims; (ii) to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims or Losses; (iii) to negotiate and/or settle all claims waive after the Effective Time any breach or default of the Acquiror or Merger Sub of any obligation to be performed by it under this Agreement, ; (iv) to receive from the Buyer monies payable to the service of process on behalf of each Securityholder in connection with any claims against such Securityholders arising under or in accordance connection with the provisions of this Agreement, any document or instrument provided for hereby or any of the transactions contemplated hereby or under the Escrow Agreement; and (v) to otherwise take such all other actions that are either (A) necessary or refrain appropriate in the judgment of the Securityholder Representative for the accomplishment of the foregoing or (B) specifically mandated by the terms of this Agreement. Notices or communications to or from taking actions) and execute such documents (including any modifications, waivers the Securityholder Representative shall constitute notice to or amendments thereto) on from the Securityholders’ behalf .
(c) The Securityholder Representative may resign at any time, and in connection with this Agreement as the event of the resignation of the Securityholder Representative, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any a new Securityholder Representative shall be appointed by the vote or all written consent of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, holders of at least seventy-three percent (vii73%) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable Senior Preferred Stock outstanding as of immediately prior to any particular Securityholder as the Effective Time, voting together on an as-converted basis (a result “Senior Preferred Supermajority”). Notice of such vote or a copy of the payment of Losses resulting from breaches of written consent appointing such Securityholder’s representationsnew Securityholder Representative shall be sent to the Acquiror and, warrantiesafter the Effective Time, covenants or agreements hereunder) and (viii) to perform all the Surviving Corporation, such appointment to be effective upon the later of the functions of date indicated in such consent and the Securityholder Representative under this Agreement. The Buyer date such consent is received by the Acquiror and, after the Effective Time, the Surviving Corporation; provided that until such notice is received, the Acquiror, Merger Sub and the Surviving Corporation, as applicable, shall be entitled to rely on the acts decisions, actions, consents and agreements instructions of the prior Securityholder Representative as the acts and agreements of the Securityholdersdescribed in Section 2.12(a). The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such All fees and expenses incurred by the Securityholder Representative in performing its duties hereunder (including legal fees and expenses related thereto) and any indemnification in favor of the Securityholder Representative shall be borne pro rata by the Securityholders based upon (other than holders of Dissenting Shares) pro rata in accordance with their respective initial Securityholder Allocation Escrow Percentages.
(bd) The Securityholders hereby agree severally In dealing with this Agreement and any notice, instrument, agreement or document relating thereto, and in exercising or failing to indemnify exercise all or any of the powers conferred upon the Securityholder Representative hereunder or thereunder, (i) the Securityholder Representative and its agents, counsel, accountants and other representatives shall not assume any, and shall not incur any, responsibility or liability whatsoever (in its capacity as sucheach case, to the extent permitted by applicable Law), to any Securityholder, the Acquiror, the Company, Merger Sub or the Surviving Corporation, including, without limitation, by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or any such other agreement, instrument or document, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence, willful misconduct or fraud, and (ii) the Securityholder Representative shall be entitled to rely in good faith 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 Securityholder Representative pursuant to such advice shall in no event subject the Securityholder Representative to liability to any Securityholder of the Company, the Acquiror, the Company, Merger Sub or the Surviving Corporation. The Securityholders shall, on a pro rata basis (based upon their respective Securityholder Allocation Percentageson each such Securityholder’s Escrow Percentage), against, indemnify and to hold harmless the Securityholder Representative from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements (collectively, “Representative Losses”), arising out of and in connection with its capacity activities as such) harmless the Securityholder Representative under this Agreement, the Escrow Agreement or otherwise, in each case, as such Representative Loss is incurred or suffered; provided, that to the extent it is finally adjudicated that a Representative Loss or any portion thereof was caused by the gross negligence, willful misconduct or fraud of the Securityholder Representative, the Securityholders will not be required to so indemnify the Securityholder Representative with respect to such Representative Loss or portion thereof and the Securityholder Representative will reimburse the Securityholders the amount of such Representative Loss to the extent already indemnified. If not paid directly to the Securityholder Representative by the Securityholders, any such Representative Losses may be recovered by the Securityholder Representative from (x) the funds in the Securityholders’ Expense Amount and (y) if (and only if) the Securityholders’ Expense Amount has been exhausted, the amounts in the Escrow Fund otherwise distributable to the Securityholders pursuant to the terms hereof and the Escrow Agreement at the time of distribution in accordance with written instructions delivered by the Securityholder Representative to the Escrow Agent; provided, that while this Section 2.12 allows the Securityholder Representative to be paid from the Securityholders’ Expense Amount and the Escrow Fund, the Securityholders shall not be relieved from their obligation to promptly pay such Representative Losses as such Representative Losses are suffered or incurred, nor shall the Securityholder Representative be prevented from seeking any remedies available to it at law or otherwise.
(e) The grant of authority provided for in this Section 2.12 (i) is coupled with an interest and is being granted, in part, as an inducement to the Acquiror and Merger Sub to enter into this Agreement and the Escrow Agreement, and shall be irrevocable and survive the dissolution, liquidation or bankruptcy of the Company or the death, incompetency, liquidation or bankruptcy of any Securityholders, shall be binding on any successor thereto and (ii) shall survive the assignment by any Securityholders of the whole or any portion of his interest in the Escrow Fund.
(f) In connection with the performance of its obligations hereunder, the Securityholder Representative shall have the right to deduct from the Reserve Account orright, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may and from time to time submit invoices to select and engage, at the cost and expense of the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including as contemplated by Section 11.02(d2.12(c)), attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as it may deem necessary or desirable and incur other out-of-pocket expenses related to performing its services hereunder.
(g) All of the Securityholder Representative mayrights, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed immunities and powers granted to the Securityholder Representative against under this Agreement with respect to this Agreement and the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 Escrow Agreement shall survive the Closing and/or any termination of this Agreement.
(ch) The Buyer shall be fully protected in dealing with Following the delivery of a notice of an Acquiror Indemnification Claim (a “Claim Notice”), the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative its representatives and agents shall be given all such access (including electronic access, to the extent authorized under this Agreement shall be considered a payment by the Buyer available) as they may reasonably require to the Securityholders. The appointment books and records of the Securityholder Representative is coupled with an interest Surviving Corporation and shall be irrevocable by any Securityholder in any manner access to such personnel or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act representatives of the principal pursuant Surviving Corporation and Acquiror, including but not limited to the individuals responsible for the matters that are the subject of the Claim Notice, as they may reasonably require for the purposes of investigating or resolving any disputes or responding to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time matters or inquiries raised in the position of Securityholder Representative for any reasonClaim Notice, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled each case, during regular business hours and subject to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholdersreasonable prior notice.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion of such counsel.
Appears in 1 contract
Samples: Merger Agreement (Kenexa Corp)
Securityholder Representative. (a) Each By voting in favor of the adoption of this Agreement, the approval of the principal terms of the Mergers, and the consummation of the Mergers or participating in the Mergers and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Mergers, each Securityholder shall be deemed to have approved the designation of, and hereby appoints ACAS designates, the Securityholder Representative as the “Securityholder Representative” to act as the representative, agent and attorney-in-fact for and on behalf of the Securityholders and each Securityholder for all purposes in connection with this Agreement and the full power agreements ancillary hereto, and without limiting the foregoing (i) to resolve agrees that all questionsactions taken by the Securityholder Representative under this Agreement or any Ancillary Agreement shall be binding upon such Securityholder and its successors as if expressly confirmed and ratified in writing by such Securityholder, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) waives any and all defenses which may be available to execute and enter intocontest, negate or disaffirm the action of the Securityholder Representative under this Agreement or the Ancillary Agreements. Without limiting the foregoing, the Securityholder Representative shall, on behalf of the Securityholders, and to have the authority to:
(i) take all actions thereunder action permitted in connection with the implementation of those provisions of this Agreement and the Ancillary Agreements that require or permit action by the Securityholder Representative;
(ii) take all action permitted in connection with the defense and/or settlement of any and all claims for and on their behalf, including but not limited which the authorization of payments from the Reserve Account Securityholders may be required to provide indemnification pursuant to SECTION 9 (Indemnification) hereof (including rejecting, contesting, negotiating, settling and resolving any increase thereof such claims) and any claims that may be made against the Escrow Fund;
(iii) comply with Orders of courts and determinations and awards of arbitrators with respect to claims;
(iv) review and take action with respect to Tax Returns or other Tax matters pursuant to SECTION 5;
(v) review and take action pursuant to Section 2.04(b)(i1.7(b) (Post-Closing True-Up) and 1.7(c) (Resolution of Disputes);
(vi) in connection with Losses as provided herein, (iii) give and receive all notices and service of process required or permitted to negotiate and/or settle all claims be given or received by the Securityholders or the Securityholder Representative under this AgreementAgreement or the Ancillary Agreements;
(vii) execute and deliver all amendments and waivers to this Agreement and the Ancillary Agreements that the Securityholder Representative deemed necessary or appropriate, whether prior to, at or after the Closing; and
(ivviii) take any and all such additional action or refrain from doing any further act or deed as is contemplated to receive from the Buyer monies payable to be taken by or on behalf of the Securityholders by the terms of this Agreement or of the Ancillary Agreements or as may be necessary or appropriate in the judgment of the Securityholder Representative for the accomplishment of the foregoing.
(b) After the Closing, all notices provided to and/or legal process served upon the Securityholder Representative in accordance with this Agreement or the provisions of this AgreementAncillary Agreements shall be deemed to be provided to and/or served upon the Securityholders and shall be conclusive and binding upon the Securityholders. All decisions, (v) to otherwise take such actions (or refrain from taking actions) , agreements, and execute such documents (instructions by the Securityholder Representative, including any modificationsconsent, waivers waiver, or amendments theretoagreement between the Securityholder Representative and any Buyer Indemnitee relating to the defense or settlement of any claim for which the Securityholders may be required to provide indemnification pursuant to SECTION 9 (Indemnification) on hereof, shall be conclusive and binding upon the Securityholders’ behalf ; and the Buyer, each other Buyer Indemnitee and the Escrow Agent shall be entitled to rely conclusively thereon. The Buyer, each other Buyer Indemnitee and the Escrow Agent shall have no duty to inquire into the authority of any person reasonably believed to be the Securityholder Representative and no responsibility or liability for any action or omission thereof, and no party shall have any cause of action against the Buyer, any other Buyer Indemnitee or the Escrow Agent for any action or omission by such party in connection with this Agreement reliance upon the instructions or decisions of any person reasonably believed to be the Securityholder Representative.
(c) In the event that more than one Person shall at any time serve collectively as the Securityholder Representative, in its sole discretiondecisions of such Persons shall, deems proper, (vi) as between them and with respect to pay, release and/or distribute any or all the rights of the Reserve Account or otherwise Securityholders in relation to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage Representative, be made by majority vote; provided, however that they shall designate a single Person as “Securityholder Representative” for all purposes involving the Buyer, any other Buyer Indemnitee, or the Escrow Agent.
(d) The Securityholder Representative is authorized to act on behalf of the Reserve Account otherwise payable to Securityholders notwithstanding any particular dispute or disagreement among the Securityholders. In taking any actions as Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representationsRepresentative, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any person he or it reasonably believes to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholdersbe authorized thereunto. The Securityholder Representative shall be entitled to: (i) rely upon the Allocation Certificate, (ii) rely upon any signature believed by it to retain counsel be genuine, and (iii) reasonably assume that a signatory has proper authorization to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as sign on behalf of the applicable Securityholder or other party. The Securityholder Representative deems will incur no liability of any kind with respect to be reasonably necessary any action or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred omission by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify in connection with the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action Representative’s services pursuant to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Securityholder Representative’s gross negligence or willful misconduct. The Securityholder Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Securityholder Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection herewith with the Securityholder Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such capacityRepresentative Loss is suffered or incurred; provided, that none of in the Securityholders shall be liable for event that any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Securityholder Representative, the Securityholder Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Securityholder Representative by the Securityholders, any such Representative Losses may be recovered by the Securityholder Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as any remaining amounts would otherwise be distributable to the Securityholders; provided, that while this section allows the Securityholder Representative to be paid from the aforementioned sources of funds, 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 Securityholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Securityholder Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Securityholder Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Securityholder Representative or the termination of this Agreement. The Securityholder Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and/or any Ancillary Agreement to which the Securityholder Representative is a party and no implied covenants or obligations shall be read into this Agreement or any Ancillary Agreements against the Securityholder Representative.
(e) As of the Effective Time, Buyer shall cause the Paying Agent to wire to the Securityholder Representative the Expense Fund, which will be used for the purposes of paying directly, or reimbursing the Securityholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Securityholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Securityholder Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Securityholder Representative’s responsibilities, the Securityholder Representative will deliver any remaining balance of the Expense Fund to the Paying Agent for further distribution to the Securityholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
(f) The Securityholder Representative may resign at any time. In the event that the Securityholder Representative resigns from such position or is unable to continue in such position, Securityholders holding among them the rights to receive at least a majority of the Parent Common Shares then remaining in the Escrow Fund to be distributed to the Securityholders (or, if no Escrow Fund remains, representing a majority in interest of the Pro Rata Shares) (the “Majority Holders”) shall promptly appoint another representative to fill such vacancy, and such substituted representative shall be deemed to be the Securityholder Representative for all purposes of this Agreement. In the absence of such appointment, the Buyer may apply to a court of competent jurisdiction for the appointment of a successor Securityholder Representative, and the costs, expenses and reasonable attorneys’ fees incurred in connection with such proceeding shall be paid from the Expense Fund or, to the extent exhausted, the Securityholders. The Securityholder Representative may from be removed at any time to time submit invoices upon the written consent of the Majority Holders with not less than thirty (30) days’ prior written notice to the Securityholders covering such expenses Buyer; provided, however, that a successor Securityholder Representative must be concurrently appointed and become a party to this Agreement and the Escrow Agreement. The immunities and rights to indemnification shall survive the resignation or removal of Securityholder Representative and the Closing and/or liabilities and, upon any termination of this Agreement and the request Escrow Agreement.
(g) The provisions of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies this Section 11.14 (including Section 11.02(d))the powers, the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it immunities and rights to be owed indemnification granted to the Securityholder Representative against the Reserve Account hereunder): (i) are independent and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement severable, are irrevocable and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by enforceable notwithstanding any rights or remedies that any Securityholder may have in any manner or for any reason. This power of attorney connection with the Transactions, (ii) shall not be affected by irrevocable and survive the death, illnessincompetence, dissolution, disability, incapacity bankruptcy or other inability to act liquidation of the principal pursuant to any applicable Law.
(d) The respective Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all any successor thereto, and (iii) shall survive the delivery of an assignment by any Securityholder of the Securityholders and shall constitute whole or any fraction of his, her or its interest in the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative Escrow Fund. Remedies available at Law for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any breach of the provisions of this Agreement or its duties hereunderSection 11.14 may be inadequate; therefore, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and each other Buyer Indemnitee shall be fully protected with respect entitled to seek temporary and permanent injunctive relief without the necessity of proving damages or posting any bond if such person brings an action taken, omitted or suffered by it in good faith in accordance with proceeding to enforce the opinion provisions of such counselthis Section 11.14.
Appears in 1 contract
Securityholder Representative. (a) Each Pursuant to the adoption of this Agreement by Equity Holders representing greater than 50% of the outstanding shares of Company Common Stock, each Equity Holder will be deemed to have irrevocably appointed, authorized and empowered the Securityholder hereby appoints ACAS as the “Securityholder Representative” Representative to act as a representative for the benefit of each Equity Holder as the exclusive agent and attorney-in-fact with the power and authority to act on behalf of each Equity Holder in connection with and to facilitate the consummation of the Securityholders with Merger, which shall include the full power and authority:
(i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the Securityholders, deliver such waivers and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby as the Securityholder Representative, in its sole discretion, deems propermay deem necessary or desirable, including any amendments or modifications to this Agreement or the other Transaction Agreements;
(ii) to enforce and protect the rights and interests of the Equity Holders and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders. Without limiting the generality of the foregoing, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder Representative shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions);
(iii) to refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) to terminate this Agreement if the Company is entitled to do so;
(vi) to paygive and receive all notices and communications to be given or received under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, release and/or distribute including service of process in connection with any arbitration;
(vii) to determine whether to deliver a Notice of Disagreement and to resolve any disputes regarding the Closing Statement; and
(viii) to make or all receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Reserve Account Equity Holders, including by using the Escrow Funds (and any interest or otherwise earnings thereon) to pay Losses hereundersatisfy costs, each expenses and/or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements, with any balance of the Escrow Funds not used for such purposes to be disbursed and paid, at such time as the Securityholder Representative determines, in its sole discretion, (vii) that no additional such costs, expenses or liabilities shall become due and payable, to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunderEquity Holders in accordance with Section 3.1(a)(iii) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation PercentagesSection 3.6(e).
(b) The Securityholders hereby agree severally Parent may rely upon all actions taken or omitted to indemnify be taken by the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement and the other Transaction Agreements, all of which actions or in connection herewith in such capacity; provided, that none of the Securityholders omissions shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, legally binding upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this AgreementEquity Holders.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the grant of authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative provided for herein (i) is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by and survive the death, illnessincompetency, dissolution, disability, incapacity bankruptcy or other inability to act liquidation of any Equity Holder and (ii) shall survive the consummation of the principal pursuant to any applicable LawMerger and other transactions contemplated hereby and by the other Transaction Agreements.
(d) The All actions taken by the Securityholder Representative may resign from under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its capacity responsibilities as representative of the Equity Holders, the Equity Holders shall, within 10 days after the occurrence of such event, appoint (by majority vote or consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time by written notice delivered time, all references herein or in any other agreement or instrument contemplated hereby to the Buyer Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy other agreements and instruments contemplated hereby and thereby shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be fully binding on all of the Securityholders and shall constitute the authorization of the Securityholdersthem.
(e) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative have no personal responsibility for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered expenses incurred by it in good faith in accordance with the opinion of such counselcapacity.
Appears in 1 contract
Securityholder Representative. (a) Each By approving this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Company Securityholder hereby appoints ACAS shall have irrevocably authorized and appointed Securityholder Representative as such Person’s representative and attorney-in-fact to act on behalf of such Person for all purposes in connection with this Agreement, the “Additional Agreements and the agreements ancillary hereto and thereto. The Securityholder Representative” to Representative shall act as the agent representative of the Company Securityholders in respect of all matters arising under this Agreement, the Additional Agreements and the agreements ancillary hereto and thereto, and shall be authorized to act, or refrain from acting, with the full power (i) respect to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) any actions to execute and enter into, be taken by or on behalf of the Securityholders, and to take all actions thereunder for and on their behalfCompany Securityholders or the Securityholder Representative, including but not limited to enforce any rights granted to the authorization of payments from Company Securityholders hereunder and thereunder, in each case as the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims Securityholder Representative believes is necessary or appropriate under this Agreement, (iv) to receive from the Buyer monies payable to Additional Agreements and/or the agreements ancillary hereto and thereto, for and on behalf of the Company Securityholders. The Company Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take shall be bound by all such actions taken by the Securityholder Representative and the Company Securityholders shall not be permitted to take any such actions.
(or refrain from taking actionsb) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement The Securityholder Representative is serving as the Securityholder RepresentativeRepresentative solely for purposes of administrative convenience, in its sole discretion, deems proper, (vi) to pay, release and/or distribute and is not personally liable for any or all of the Reserve Account obligations of the Company, any of its Subsidiaries or otherwise to pay Losses the Company Securityholders hereunder, each in and Parent (on behalf of itself and its sole discretion, (viiAffiliates) agrees that it will not look to adjust the Securityholder Allocation Percentage of Representative or the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions underlying assets of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on for the acts and agreements satisfaction of any obligations of the Securityholder Representative as Company, any of its Subsidiaries or the acts and agreements of the Company Securityholders. The Securityholder Representative shall not be entitled liable for any error of judgment, or any action taken, suffered or omitted to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as be taken, in connection with the performance by the Securityholder Representative deems to be reasonably necessary of the Securityholder Representative’s duties or appropriate in connection with its performance the exercise by the Securityholder Representative of its obligations the Securityholder Representative’s rights and remedies under this Agreement, and all such fees and expenses incurred by any Additional Agreement or any agreement ancillary hereto or thereto, except in the Securityholder Representative case of its intentional fraud or willful misconduct. No bond shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct required of the Securityholder Representative. The Securityholder Representative may from time consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to time submit invoices be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Securityholder Representative shall not have any duty to ascertain or to inquire as to the Securityholders covering such expenses and/or liabilities and, upon the request performance or observance of any Securityholderof the terms, shall provide such Securityholder with an accounting covenants or conditions of all expenses paidthis Agreement or any Additional Agreement or any agreement ancillary hereto or thereto. In addition to any other rights or remedies (including Section 11.02(d))Without limiting the generality of the foregoing, the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it shall have the full power and authority to be owed to interpret all the Securityholder Representative against the Reserve Account terms and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination provisions of this AgreementAgreement and the Additional Agreements or any agreement ancillary hereto or thereto, and to consent to any amendment hereof or thereof on behalf of the Company Securityholders and their respective successors.
(c) The Buyer Each Company Securityholder, jointly and severally, agrees to indemnify and hold harmless the Securityholder Representative against all fees and expenses (including legal fees and expenses) and other amounts payable or incurred by the Securityholder Representative in connection with the performance of any of its duties under this Agreement or the Additional Agreements, including any such fees, expenses, or other amounts that may be incurred by the Securityholder Representative in connection with any Action to which the Securityholder Representative is made a party by reason of the fact it is or was acting as the Securityholder Representative pursuant to the terms of this Agreement or the Additional Agreements. Notwithstanding the foregoing in this clause (c), in no event will the indemnity contemplated in this clause (c) be paid by the Company Securityholders to the Securityholder Representative in the form of Indemnification Escrow Shares released pursuant to the Indemnification Escrow Agreement.
(d) Parent, the Indemnified Party and the Indemnified Party shall be fully protected in dealing entitled to rely on all statements, representations, decisions of, and actions taken or omitted to be taken by, the Securityholder Representative as being the statements, representations, decisions of, and actions of Company Securityholders with respect to the matters relating to this Agreement or any Additional Agreement or any agreement ancillary hereto or thereto. Parent, the Indemnified Party and the Indemnified Party shall be entitled to deal solely with the Securityholder Representative under (and shall not be required to deal with any Company Securityholder, in his, her or its capacity as such) with respect to the matters relating to this Agreement or any Additional Agreement or any agreement ancillary hereto or thereto.
(e) The Securityholder Representative may resign at any time by giving twenty (20) days’ notice to Parent and may rely upon the authority Company Securityholders; provided, however, in the event of the resignation or removal of the Securityholder Representative, a new Securityholder Representative (who shall be reasonably acceptable to act on behalf Parent) shall be appointed by the vote or written consent of a majority of the Securityholders. Any payment shares of Parent Common Stock, voting together as a single class (with each such share entitled to one vote), then held by the Buyer Company Securityholders as of immediately prior to the Securityholder Representative to Effective Time; provided, further, that if any such vacancy is not so filled within thirty (30) days following the extent authorized under this Agreement occurrence of such vacancy, the Indemnified Party shall be considered entitled to appoint a payment by successor Securityholder Representative, and the Buyer provisions of this Section 12.19 shall apply in all respects to the Securityholders. such successor Securityholder Representative.
(f) The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder Company Securityholders in any manner or for any reason. This power of attorney authority granted to the Securityholder Representative shall not be affected by the death, illness, dissolution, disability, incapacity dissolution or other inability to act of the any principal pursuant to any applicable Law.
(d) The . Amazon Capital Inc. hereby accepts its appointment as the initial Securityholder Representative. Any decision, act, consent or instruction taken by the Securityholder Representative may resign from its capacity as in accordance with this Section 12.19 on behalf of Company Securityholders (each, an “Securityholder Representative at any time by written notice delivered to the Buyer Authorized Action”) shall be final, binding and the Securityholders. If there is a vacancy at any time in the position of conclusive on Company Securityholders as fully as if such Persons had taken such Securityholder Representative for any reasonAuthorized Action. The Indemnified Party agrees that the Securityholder Representative, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative Representative, shall have no liability to the Indemnified Party for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion of such counselAuthorized Action.
Appears in 1 contract
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS For purposes of this Agreement, the Escrow Securityholders, without any further action on the part of any such Escrow Securityholder, shall be deemed to have consented to the appointment of a committee consisting of Xxxxx Xxxx and Xxxxxxx Xxxxxxxx, acting only jointly, as the “representative of such Escrow Securityholders (the "Securityholder Representative” to act "), as the agent attorney-in-fact for and on behalf of each such Escrow Securityholder, and the taking by the Securityholder Representative of any and all actions and the making of any decisions required or permitted to be taken by them under this Agreement, including the exercise of the Securityholders with the full power to (i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11execute the Escrow Agreement, (ii) authorize delivery to execute Parent and enter into, on behalf Acquisition of the SecurityholdersEscrow Amount, and to take all actions thereunder for and on their behalfor any portion thereof, including but not limited the authorization in satisfaction of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided hereinIndemnification Claims, (iii) authorize the use of up to negotiate and/or settle all claims under this Agreementan aggregate of Five Hundred Thousand Dollars ($500,000) of the Escrow Amount to defend any claims, (iv) agree to, negotiate, enter Into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreementsuch Indemnification Claims, (v) resolve any Indemnification Claims and (vi) take all actions necessary in the judgment of the Securityholder Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement and the Escrow Agreement. Accordingly, the Securityholder Representative has unlimited authority and power to otherwise take such act on behalf of each Escrow Securityholder with respect to this Agreement and the Escrow Agreement and the disposition, settlement or other handling of all Indemnification Claims, rights or obligations arising from and taken pursuant to this Agreement. The Escrow Securityholders will be bound by all actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on taken by the Securityholders’ behalf Securityholder Representative in connection with this Agreement as the Securityholder RepresentativeAgreement, in its sole discretion, deems proper, (vi) to pay, release and/or distribute any or all of the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of the Securityholder Representative under this Agreement. The Buyer is Parent and Acquisition shall be entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct decision of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall will incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action takentaken or suffered by them in reliance upon any notice, direction, instruction, consent, statement or other document believed by them to be genuine and to have been signed by the proper person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except their own willful misconduct or gross negligence. In all questions arising under this Agreement or the Escrow Agreement, the Securityholder Representative may rely on the advice of counsel, and the Securityholder Representative will not be liable to anyone for anything done, omitted or suffered by it in good faith in accordance with by the opinion Securityholder Representative based on such advice. The Securityholder Representative will not be required to take any action involving any expense unless the payment of such counselexpense is made or provided for in a manner satisfactory to them. So long as the Securityholder Representative shall at all times be comprised of at least one (1) and no more than three (3) individuals, at any time during the term of the Escrow Agreement, holders of a majority in interest of the Escrow Amount can remove and replace one or all of the individuals serving as the Securityholder Representatives by written consent by sending notice and a copy of the written consent appointing such new individual or individuals signed by holders of a majority in interest of the Escrow Amount to Parent and the Escrow Agent. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Parent and the Escrow Agent. Any such new individual shall serve in such capacity subject to the terms and conditions of the Escrow Agreement and provide notice to the Escrow Agent of its identity and notice information for purposes of Section 21 of the Escrow Agreement. If more than one individual is serving as the Securityholder Representative, such individuals may only take actions jointly.
Appears in 1 contract
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS as the “Securityholder Representative” to act as the agent of the Securityholders with the full power (i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the Securityholders, and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions For purposes of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including the Securityholders without any modifications, waivers or amendments thereto) further action on the Securityholders’ behalf in connection with this Agreement as part of any such parties, shall be deemed to have consented to the appointment of the Securityholder Representative, in its sole discretionas the attorney-in-fact for and on behalf of each such Securityholder, deems proper, (vi) to pay, release and/or distribute any or all of and the Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust taking by the Securityholder Allocation Percentage Representative of any and all actions and the Reserve Account otherwise payable making of any decisions required or permitted to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions of be taken by the Securityholder Representative under this Agreement, including the exercise of the power to (a) prepare, execute and deliver any document, certificate or other instrument required to be delivered by or on behalf of the Securityholders pursuant to this Agreement or the Escrow Agreements and any amendments hereto and thereto, (b) authorize delivery to Acquiror of the Escrow Amount and the Working Capital Escrow Amount, or any portion thereof, in satisfaction of Indemnification Claims and payment of any Adjustment Amount due, respectively, (c) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to Indemnification Claims and disputes relating to the Earn-Out, and pursue remedies and Actions in connection with any alleged breach of this Agreement, (d) resolve any Indemnification Claims, (e) make and settle determinations and calculations with respect to distributions and allocations of the Total Merger Consideration and any portion thereof, including, the Working Capital Adjustment, the Earn-Out Amounts, the Escrow Amount, the Working Capital Adjustment Amount and the Securityholder Representative Expense Amount, (f) give and receive notices and communications hereunder, and (g) take all actions necessary in the judgment of the Securityholder Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement and the Escrow Agreements or that are specifically mandated by the terms of this Agreement or the Securityholder Representative Engagement Agreement. The Buyer is Accordingly, Securityholder Representative has unlimited authority and power to act on behalf of each Securityholder with respect to this Agreement and the Escrow Agreements and the disposition, settlement or other handling of all Indemnification Claims, rights or obligations arising from and taken pursuant to this Agreement or the Escrow Agreements. Securityholders will be bound by all actions taken by Securityholder Representative in connection with this Agreement or the Escrow Agreements, and Acquiror and the Surviving Corporation shall be entitled to rely on any action or decision of Securityholder Representative. Securityholder Representative will incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other document believed by it to be genuine and to have been signed by the acts proper person (and agreements shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except its own willful misconduct, bad faith or gross negligence. In all questions arising under this Agreement or the Escrow Agreements, Securityholder Representative may rely on the advice of counsel, and Securityholder Representative will not be liable to the Securityholders for anything done, omitted or suffered in good faith by Securityholder Representative based on such advice. The Securityholders shall, severally (on the basis of each Securityholder’s Pro-Rata Portion at the time the claim shall be made) and not jointly, indemnify, defend and hold harmless the Securityholder Representative as the acts and agreements its successors and assigns from and against any and all suits, actions, causes of the Securityholders. The Securityholder Representative shall be entitled to retain counsel action, losses, liabilities, damages, claims, penalties, fines, forfeitures, fees, costs and to incur such reasonable expenses (including reasonable attorneys’ fees and court costs and reasonable attorney’s fees and expensesexpenses of counsel and experts and all expenses of document location, duplication and shipment) as in an amount not to exceed the amount of Total Merger Consideration actually received by each Securityholder (collectively, “Securityholder Representative deems to be reasonably necessary or appropriate Losses”) actually incurred in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred any actions taken or omitted to be taken by the Securityholder Representative shall be borne pro rata pursuant to the terms of this Agreement, in each case as such Securityholder Representative Loss is incurred; provided that in the event it is finally adjudicated that a Securityholder Representative Loss or any portion thereof was primarily caused by the Securityholders based upon their respective initial willful misconduct, bad faith or gross negligence of the Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify Representative, the Securityholder Representative (in its capacity as such)will reimburse the Securityholders the amount of such indemnified Securityholder Representative Loss attributable to such willful misconduct, on a pro rata basis based upon their respective bad faith or gross negligence. Any Securityholder Allocation Percentages, against, and to hold Representative Losses actually suffered or incurred may be recovered by the Securityholder Representative only in the following order: (i) first, from the Securityholder Representative Expense Amount, (ii) second, from the amounts in the Escrow Amount otherwise distributable to the Securityholders pursuant to the terms hereof and the Indemnity Escrow Agreement; (iii) third, from any Earn-out Amounts at such time as any such amounts would otherwise be distributable to the Securityholders; and (iv) last, directly from the Securityholders, in which case indemnification for Securityholder Representative’s Losses actually suffered or incurred shall be limited to each Securityholder’s Pro-Rata Portion thereof; provided, that while this section allows the Securityholder Representative to be paid from Securityholder Representative Expense Amount, the Escrow Amount, and the Earn-out Amounts, this does not relieve the Securityholders from their obligation to promptly pay such Securityholder Representative Losses as they are suffered or incurred, nor does it prevent the Securityholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Securityholder Representative be required to advance its capacity as suchown funds on behalf of the Securityholders or otherwise, and the Securityholder Representative will not be required to take any action involving any expense unless the payment of such expense is made or provided for in a manner satisfactory to it. The Securityholders who have contributed at least 60% of the Escrow Amount can appoint a new Securityholder Representative by sending notice and a copy of the duly executed written consent appointing such new Securityholder Representative to the Securityholder Representative, Acquiror and the Escrow Agent. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Acquiror, Sub (or, if after the Effective Time, the Surviving Corporation) harmless from (and the Escrow Agent. No bond shall be required of the Securityholder Representative, and the Securityholder Representative shall have the right to deduct receive no compensation for its services, other than from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative Expense Amount or as set forth in such capacity in any way relating to or arising out the Securityholder Representative Engagement Agreement. Solely as between the Securityholders, the engagement of its action or failure to take action the Securityholder Representative is made pursuant to this Agreement or in connection herewith in such capacity; provided, that none the terms of the Securityholders shall Engagement Agreement to be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of entered with the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to Securityholders acknowledge and agree that the Securityholders covering such expenses and/or liabilities and, upon foregoing indemnities will survive the request resignation or removal of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion of such counsel.
Appears in 1 contract
Securityholder Representative. (a) Each Securityholder Fortis Advisors LLC is hereby appoints ACAS appointed as of the date hereof as the “Securityholder Representative” to act exclusive agent and attorney in fact of the Company Securityholders as the agent of the Securityholders with the full power (i) to resolve all questions, disputes, conflicts Securityholder Representative for and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf of the SecurityholdersCompany Securityholders to give and receive notices and communications in connection with this Agreement and related matters, including in connection with claims for indemnification under this Article IX and to agree to, negotiate, and enter into settlements, adjustments and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims, and to take all other actions thereunder that are either (i) necessary or appropriate in the judgment of the Securityholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Notwithstanding the foregoing, the Securityholder Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein and on their behalfin the Escrow Agreement, including but and for purposes of clarity, there are no obligations of the Securityholder Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedule. Such agency may be changed by the Company Securityholders from time to time upon not limited less than ten (10) days prior written notice to Parent; provided, that the authorization Securityholder Representative may not be removed unless a majority of payments the Company Securityholders (as determined by the respective Indemnity Pro Rata Shares) agree in writing to such removal and to the identity of the substituted agent. A vacancy in the position of the Securityholder Representative may be filled by a majority of the Company Securityholders (as determined by the respective Indemnity Pro Rata Shares). The immunities and rights to indemnification shall survive the resignation or removal of Securityholder Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required of the Securityholder Representative. Notices or communications to or from the Reserve Account Securityholder Representative shall constitute notice to or from the Company Securityholders.
(including any increase thereof pursuant b) Certain Company Securityholders have entered into a letter agreement with the Securityholder Representative to Section 2.04(b)(i)) provide direction to the Securityholder Representative in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims the performance of its services under this AgreementAgreement and the Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholder Representative (ivtogether with its members, managers, directors, officers, contractors, agents and employees) to receive from nor any member of the Buyer monies payable to Advisory Group (collectively, the “Securityholder Representative Group”), shall be liable for any act done or omitted hereunder, under the Escrow Agreement or under any Securityholder Representative engagement agreement as the Securityholder Representative while acting in good faith and in the exercise of reasonable judgment. The Company Securityholders in accordance with shall indemnify and defend the provisions of this AgreementSecurityholder Representative Group and hold the Securityholder Representative Group harmless against any Liability, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents losses, claims, damages, fees, costs, expenses (including fees, disbursements and costs of any modifications, waivers or amendments thereto) on the Securityholders’ behalf skilled professionals and in connection with this seeking recovery from insurers), judgments, fines or amounts paid in settlement incurred without negligence, willful misconduct or bad faith on the part of the Securityholder Representative Group and arising out of or in connection with the acceptance or administration of the Securityholder Representative Group’s duties hereunder under the Escrow Agreement as or under any Securityholder Representative engagement agreement, including the reasonable fees and expenses of any legal counsel retained by the Securityholder Representative (“Securityholder Representative Expense”). Any such Securityholder Representative Expenses may be recovered at the election of the Securityholder Representative, at any time from: (i) the Expense Fund; (ii) the Escrow Fund, at such time as remaining amounts would otherwise be distributable to the Indemnifying Holders and to the extent any funds remain in such fund; or (iii) from the Indemnifying Holders directly according to the Indemnity Pro Rata Share of each Indemnifying Holder. The Company Securityholders acknowledge that the Securityholder Representative shall not be required to expend or risk its sole discretionown funds or otherwise incur any financial liability in the exercise or performance of any of its powers, deems properrights, duties or privileges or administration of its duties.
(vic) to pay, release and/or distribute any or all By virtue of the Reserve Account approval of the Merger and this Agreement by the Company Securityholders and without any further action of any of the Company Securityholders or otherwise to pay Losses hereunderthe Company, each in its sole discretion, Company Securityholder: (viii) to adjust the Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform agrees that all of the functions of actions taken by the Securityholder Representative under this Agreement or the Escrow Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and (ii) waives any and all defenses which may be available to contest, negate or disaffirm the action of the Securityholder Representative taken in good faith under this Agreement or the Escrow Agreement. A decision, act, consent or instruction of the Securityholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Sections 10.3 and 10.4 hereof, shall constitute a decision of all the Company Securityholders and shall be final, binding and conclusive upon the Indemnifying Parties. The Buyer powers, immunities and rights to indemnification granted to the Securityholder Representative and the Advisory Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Company Securityholder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Fund. Parent is entitled to rely on the acts and agreements upon any such decision, act, consent or instruction of the Securityholder Representative as being the acts and agreements decision, act, consent or instruction of all the Company Securityholders. The Securityholder Representative shall be entitled Parent is hereby relieved from any Liability to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable Person for any portion of acts done by it in accordance with such liabilitiesdecision, obligationsact, losses, damages, penalties, actions, judgments, suits, costs, expenses consent or disbursements resulting solely from the gross negligence or willful misconduct instruction of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may entitled to: (i) rely upon the authority of the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by Spreadsheet, (ii) rely upon any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at any time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative for any reason, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it signature believed by it to be in good faith or for any mistake in fact or lawgenuine, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as and (iii) reasonably assume that a signatory has proper authorization to the construction of any sign on behalf of the provisions of this Agreement applicable Company Securityholders or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion of such counselother party.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Millennial Media Inc.)
Securityholder Representative. (a) Each By approving this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Company Securityholder hereby appoints ACAS shall have irrevocably authorized and appointed Securityholder Representative as such Person’s representative and attorney-in-fact to act on behalf of such Person for all purposes in connection with this Agreement, the “Additional Agreements and the agreements ancillary hereto and thereto. The Securityholder Representative” to Representative shall act as the agent representative of the Company Securityholders in respect of all matters arising under this Agreement, the Additional Agreements and the agreements ancillary hereto and thereto, and shall be authorized to act, or refrain from acting, with the full power (i) respect to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) any actions to execute and enter into, be taken by or on behalf of the Securityholders, and to take all actions thereunder for and on their behalfCompany Securityholders or the Securityholder Representative, including but not limited to enforce any rights granted to the authorization of payments from Company Securityholders hereunder and thereunder, in each case as the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims Securityholder Representative believes is necessary or appropriate under this Agreement, (iv) to receive from the Buyer monies payable to Additional Agreements and/or the agreements ancillary hereto and thereto, for and on behalf of the Company Securityholders. The Company Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take shall be bound by all such actions taken by the Securityholder Representative and the Company Securityholders shall not be permitted to take any such actions.
(or refrain from taking actionsb) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement The Securityholder Representative is serving as the Securityholder RepresentativeRepresentative solely for purposes of administrative convenience, in its sole discretion, deems proper, (vi) to pay, release and/or distribute and is not personally liable for any or all of the Reserve Account obligations of the Company, any of its Subsidiaries or otherwise to pay Losses the Company Securityholders hereunder, each in and Parent (on behalf of itself and its sole discretion, (viiAffiliates) agrees that it will not look to adjust the Securityholder Allocation Percentage of Representative or the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to perform all of the functions underlying assets of the Securityholder Representative under this Agreement. The Buyer is entitled to rely on for the acts and agreements satisfaction of any obligations of the Securityholder Representative as Company, any of its Subsidiaries or the acts and agreements of the Company Securityholders. The Securityholder Representative shall not be entitled liable for any error of judgment, or any action taken, suffered or omitted to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as be taken, in connection with the performance by the Securityholder Representative deems to be reasonably necessary of the Securityholder Representative’s duties or appropriate in connection with its performance the exercise by the Securityholder Representative of its obligations the Securityholder Representative’s rights and remedies under this Agreement, and all such fees and expenses incurred by any Additional Agreement or any agreement ancillary hereto or thereto, except in the Securityholder Representative case of its intentional fraud or willful misconduct. No bond shall be borne pro rata by the Securityholders based upon their respective initial Securityholder Allocation Percentages.
(b) The Securityholders hereby agree severally to indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement or in connection herewith in such capacity; provided, that none of the Securityholders shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct required of the Securityholder Representative. The Securityholder Representative may from time consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to time submit invoices be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Securityholder Representative shall not have any duty to ascertain or to inquire as to the Securityholders covering such expenses and/or liabilities and, upon the request performance or observance of any Securityholderof the terms, shall provide such Securityholder with an accounting covenants or conditions of all expenses paidthis Agreement or any Additional Agreement or any agreement ancillary hereto or thereto. In addition to any other rights or remedies (including Section 11.02(d))Without limiting the generality of the foregoing, the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it shall have the full power and authority to be owed to interpret all the Securityholder Representative against the Reserve Account terms and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination provisions of this AgreementAgreement and the Additional Agreements or any agreement ancillary hereto or thereto, and to consent to any amendment hereof or thereof on behalf of the Company Securityholders and their respective successors.
(c) The Buyer Each Company Securityholder, jointly and severally, agrees to indemnify and hold harmless the Securityholder Representative against all fees and expenses (including legal fees and expenses) and other amounts payable or incurred by the Securityholder Representative in connection with the performance of any of its duties under this Agreement or the Additional Agreements, including any such fees, expenses, or other amounts that may be incurred by the Securityholder Representative in connection with any Action to which the Securityholder Representative is made a party by reason of the fact it is or was acting as the Securityholder Representative pursuant to the terms of this Agreement or the Additional Agreements. Notwithstanding the foregoing in this clause (c), in no event will the indemnity contemplated in this clause (c) be paid by the Company Securityholders to the Securityholder Representative in the form of Earnout Shares released pursuant to the Earnout Escrow Agreement.
(d) Parent shall be fully protected in dealing entitled to rely on all statements, representations, decisions of, and actions taken or omitted to be taken by, the Securityholder Representative as being the statements, representations, decisions of, and actions of Company Securityholders with respect to the matters relating to this Agreement or any Additional Agreement or any agreement ancillary hereto or thereto. Parent shall be entitled to deal solely with the Securityholder Representative under (and shall not be required to deal with any Company Securityholder, in his, her or its capacity as such) with respect to the matters relating to this Agreement or any Additional Agreement or any agreement ancillary hereto or thereto.
(e) The Securityholder Representative may resign at any time by giving twenty (20) days’ notice to Parent and may rely upon the authority Company Securityholders; provided, however, in the event of the resignation or removal of the Securityholder Representative, a new Securityholder Representative (who shall be reasonably acceptable to act on behalf Parent) shall be appointed by the vote or written consent of a majority of the Securityholders. Any payment shares of Company Common Stock then held by the Buyer Company Securityholders as of immediately prior to the Securityholder Effective Time; provided, further, that if any such vacancy is not so filled within thirty (30) days following the occurrence of such vacancy, the Parent Representative to the extent authorized under this Agreement shall be considered entitled to appoint a payment by successor Securityholder Representative, and the Buyer provisions of this Section 11.18 shall apply in all respects to the Securityholders. such successor Securityholder Representative
(f) The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by any Securityholder Company Securityholders in any manner or for any reason. This power of attorney authority granted to the Securityholder Representative shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the any principal pursuant to any applicable Law.
(d) The . Xxxxxx X. Xxxxx hereby accepts his appointment as the initial Securityholder Representative. Any decision, act, consent or instruction taken by the Securityholder Representative may resign from its capacity as in accordance with this Section 11.18 on behalf of Company Securityholders (each, an “Securityholder Representative at any time by written notice delivered to the Buyer Authorized”) shall be final, binding and the Securityholders. If there is a vacancy at any time in the position of conclusive on Company Securityholders as fully as if such Persons had taken such Securityholder Representative for any reasonAuthorized Action. Each Company Securityholder agrees that the Securityholder Representative, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer or the Securityholders in its capacity as the Securityholder Representative Representative, shall have no liability to a Company Securityholder for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Security Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion of such counselAuthorized Action.
Appears in 1 contract
Samples: Merger Agreement (Revelstone Capital Acquisition Corp.)
Securityholder Representative. (a) Each Securityholder hereby appoints ACAS as By virtue of execution and delivery of a Joinder Agreement, and the “Securityholder Representative” to act as adoption of this Agreement and the agent approval of the Securityholders with Merger by the full power (i) to resolve all questionsCompany Securityholders, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) to execute and enter into, on behalf each of the Securityholders, and Company Securityholders shall be deemed to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant have agreed to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Securityholders’ behalf in connection with this Agreement appoint Shareholder Representative Services LLC as the Securityholder Representative, to act as its, his or her exclusive agent and attorney-in-fact with the authority (but subject to the limitations on authority set forth in its sole discretion, deems proper, this Agreement) to: (vii) give and receive notices and communications to pay, release and/or distribute or from Acquiror or any other Acquiror Indemnified Party relating to this Agreement or all any of the Reserve Account transactions and other matters contemplated hereby or otherwise thereby (except to pay Losses hereunder, each in its sole discretion, the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by the Company Securityholders individually); (viiii) authorize Acquiror to adjust the Securityholder Allocation Percentage retain and set-off against all or any portion of the Reserve Account otherwise payable Total Earnout Consideration in satisfaction of claims requiring payment to any particular Securityholder as a result Acquiror Indemnified Party (including Acquiror on behalf of itself or any other Acquiror Indemnified Party), including by not objecting to such claims; (iii) object to any claims for indemnification, compensation, or reimbursement under this Article VIII, including those directly against Seller Indemnifying Parties; (iv) consent or agree to, negotiate, enter into settlements and compromises of, and represent the interests of the payment of Losses resulting from breaches of such Securityholder’s representationsSeller Indemnifying Parties in any dispute relating to, warrantiesand comply with Orders with respect to, covenants any claims for indemnification, compensation, or agreements hereunder) reimbursement under this Article VIII; and (viiiv) to perform take all of actions necessary or appropriate in the functions judgment of the Securityholder Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance; provided, however, that for clarity, in no event shall the Securityholder Representative, through such settlements and compromises, or otherwise, increase any Seller Indemnifying Party’s indemnification obligations beyond that expressly contemplated by this Agreement. The Buyer is entitled to rely on the acts and agreements of the Securityholder Representative as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled only have the power and authority to retain counsel act regarding matters pertaining to the Company Securityholders as a group and not individually, and shall not have power or authority to incur treat any particular Company Securityholder in a manner different from any other Company Securityholder (except as consistent with such reasonable expenses (including court costs Company Securityholder’s Closing Pro Rata Portion or Overall Pro Rata Portion). The Securityholder Representative shall not have any power or authority to bind any Company Securityholder to any obligations or restrictions applicable to such Company Securityholder beyond the subject matter of an Indemnifiable Matter, the determination of the Final Total Closing Cash Consideration and reasonable attorney’s fees and expenses) the determination of Total Earnout Consideration. The Person serving as the Securityholder Representative deems may be replaced from time to be reasonably necessary or appropriate time by a vote of the Persons then holding an Overall Pro Rata Portion greater than two-thirds (2/3) of the aggregate of all Overall Pro Rata Portions. The Securityholder Representative may resign at any time in connection accordance with its performance the terms of its obligations under this Agreement, and all such fees and expenses incurred by the Securityholder Representative shall be borne pro rata by Representative’s engagement letter. [***] Confidential treatment has been requested for the Securityholders based upon their respective initial Securityholder Allocation Percentagesbracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
(b) The Securityholder Representative will incur no liability of any kind with respect to any action or omission by the Securityholder Representative in connection with its services pursuant to this Agreement and the agreements ancillary hereto, except in the event of liability directly resulting from the Securityholder Representative’s gross negligence, fraud, willful misconduct or bad faith. The Company Securityholders hereby agree severally to shall severally, but not jointly (in accordance with their respective Overall Pro Rata Portions) indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), against any and all losses, liabilities, obligations, losses, damages, claims, penalties, fines, forfeitures, actions, judgmentsfees, suitscosts and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, costsduplication and shipment) (collectively, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder “Representative in such capacity in any way relating to or Losses”) arising out of its action or failure to take action pursuant to this Agreement or in connection herewith with the Securityholder Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such capacityRepresentative Loss is suffered or incurred; provided, that none of in the Securityholders shall be liable for event that any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from Representative Loss is finally adjudicated to have been directly caused by the gross negligence negligence, willful misconduct, fraud or willful misconduct bad faith of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the request of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative maywill reimburse the Company Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence, upon prior willful misconduct, fraud or contemporaneous written notice, offset any amounts determined by it to be owed bad faith. If not paid directly to the Securityholder Representative against by the Reserve Account Company Securityholders, any such Representative Losses may be recovered by the Securityholder Representative from (i) the funds in the Expense Fund, (ii) the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Company Securityholders, and against (iii) from the Total Earnout Consideration at such time as any such amounts would otherwise be distributable to the Company Securityholders; provided, that while this section allows the Securityholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Company Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Securityholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Securityholder Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of the Company Securityholders hereunderset forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Securityholder Representative under this section. The agreements in this Section 11.04 shall foregoing indemnities will survive the Closing, the resignation or removal of the Securityholder Representative or the termination of this Agreement.
(c) The Buyer shall be fully protected Notwithstanding anything to the contrary in dealing with this Agreement or any Related Agreement, the Securityholder Representative under shall only have the power or authority to act regarding matters pertaining to the Company Securityholders as a group and not individually and, shall not have power or authority to treat any particular Company Securityholder in a manner different from any other Company Securityholder (except to the extent expressly contemplated by this Agreement and may rely upon or such Related Agreement) without the authority particular Company Securityholder’s consent, which will not be unreasonably withheld, conditioned or delayed. For the avoidance of doubt, the Securityholder Representative consenting to act on behalf all or a portion of an Indemnifiable Matter, the final determination of Final Closing Cash Consideration, or the final determination of Total Earnout Consideration, or entering into a settlement agreement with respect to any of the Securityholders. Any payment by foregoing, in accordance with the Buyer to the procedures, limitations of liability and Securityholder Representative to the extent authorized under authority set forth in this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment (as of the Securityholder Representative is coupled Agreement Date and as amended in compliance with an interest and shall be irrevocable by any Securityholder in any manner or for any reason. This power of attorney Section 7.3) shall not be affected by deemed to implicate or require the death, illness, dissolution, disability, incapacity or other inability to act prior written approval of the principal a Company Securityholder pursuant to any applicable Lawthe previous sentence.
(d) The Securityholder Representative may resign from its capacity as Securityholder Representative at After the Closing, any time by written notice delivered or communication given or received by, and any decision, action, failure to the Buyer and the Securityholders. If there is act within a vacancy at any time in the position designated period of Securityholder Representative for any reasontime, such vacancy shall be filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to a majority of the number of votes referred to in the next sentence. In such eventagreement, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders.
(e) The Securityholder Representative shall not be liable to the Buyer consent, settlement, resolution or the Securityholders in its capacity as instruction of, the Securityholder Representative for any liability that is within the scope of the Securityholder Representative’s authority under this Agreement shall constitute a Securityholder notice or for any error of judgmentcommunication to or by, or any a decision, action, failure to act done or step taken or omitted by it believed by it to be in good faith or within a designated period of time, agreement, [***] Confidential treatment has been requested for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by itbracketed portions. The Securityholder Representative may seek confidential redacted portion has been omitted and filed separately with the advice Securities and Exchange Commission. consent, settlement, resolution or instruction of reputable legal counsel in all the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as Securityholder Representative to the Buyer or the Securityholders Seller Indemnifying Parties and shall be fully protected with respect final, binding and conclusive upon each such Seller Indemnifying Party; and each Acquiror Indemnified Party shall be entitled to rely upon any action takensuch notice, omitted communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or suffered by it in good faith in accordance with the opinion instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of each and every such counselSeller Indemnifying Party.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Quotient Technology Inc.)
