Securityholders’ Representative. by participating in the transactions contemplated hereby and receiving the benefits thereof, including the right to receive the consideration payable in connection with such transactions, each Company Securityholder shall be deemed to have approved the designation of, and hereby designates, Shareholder Representative Services LLC (the “Securityholders’ Representative”) as the Company Securityholders’ representative and as their duly authorised agent, attorney and representative for the purposes of dealing with the Purchaser under this Agreement, the Subscription Share Transfer Agreements, the Warrant Surrender Agreements, the Option Surrender Agreements and the Escrow Agreement and any communication to or from the Securityholders’ Representative under such agreements shall be deemed to be communication to or from all Company Securityholders. The Securityholders’ Representative shall be the only person entitled (on behalf of the Company Securityholders) to enforce rights, provide communications, make elections or provide consents under this Agreement, the Subscription Share Transfer Agreements, the Warrant Surrender Agreements, the Option Surrender Agreements and the Escrow Agreement (and in doing any of the forgoing it shall be doing so on behalf of all the Company Securityholders) and the Purchaser shall be entitled to rely solely on such Securityholders’ Representative’s action or inaction in dealing with the Company Securityholders, notwithstanding any other communication whether in writing or otherwise, from any of the Company Securityholders. The Securityholders’ Representative is hereby further authorized to execute and deliver the Escrow Agreement as agent for the Company Securityholders and to exercise the Company Securityholders’ rights thereunder. The Securityholders’ Representative shall not be liable in any manner or for any reason to any Company Securityholders in respect of the decisions, determinations or agreements made or consented to by the Securityholders’ Representative, or for any acts done or not done by the Securityholders’ Representative, under or in connection with this Agreement, except to the extent that the Securityholders’ Representative was grossly negligent or engaged in wilful misconduct with respect to such decision, determination, agreement or act done or not done by the Securityholders’ Representative in connection with this Agreement. The Company Securityholders shall indemnify, defend and hold harmless the Securityholders’ 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) (together, “Securityholders’ Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Securityholders’ Representative pursuant to the terms of this Agreement and the Escrow Agreement provided that, in the event that any such Securityholders’ Representative Losses or any portion thereof is finally adjudicated to have been primarily caused by the gross negligence or wilful misconduct of the Securityholders’ Representative or any of its successors or assigns, the Securityholders’ Representative will reimburse the Company Securityholders the amount of such Securityholders’ Representative Losses attributable to such gross negligence or wilful misconduct. If not paid directly to the Securityholders’ Representative by the Company Securityholders, any such losses, liabilities or expenses may be recovered by the Securityholders’ Representative from the Escrow Expenses Amount and from the funds in the Escrow Fund otherwise distributable to Company Securityholders following the termination of the Escrow Period pursuant to the terms hereof and the Escrow Agreement at the time of distribution; provided that while this clause allows the Securityholders’ Representative to be paid from the Escrow Fund, this does not relieve the Company Securityholders from their obligation to promptly pay such losses, liabilities or expenses, nor does it prevent the Securityholders Representative from seeking any remedies available to it at Law or otherwise. If the Securityholders’ Representative shall die, be removed, become disabled, resign or otherwise be unable to fulfill its responsibilities hereunder, the Company Securityholders shall (by consent of those persons entitled to at least a majority of the purchase price paid to all Company Securityholders), within 10 days after such death, removal, disability, resignation or inability, appoint a successor to the Securityholders’ Representative and immediately thereafter notify Purchaser of the identity of such successor. Any such successor shall succeed the former Securityholders’ Representative as the Securityholders’ Representative hereunder. If for any reason there is no Securityholders’ Representative at any time, all references herein to the Securityholders’ Representative shall be deemed to refer to the Company Securityholders. Each Company Securityholder hereby agrees to receive correspondence from the Securityholders’ Representative, including in electronic form;
Appears in 2 contracts
Samples: Agreement for Sale and Purchase of Shares, Agreement for Sale and Purchase of Shares (SMART Technologies Inc.)
Securityholders’ Representative. by participating (a) Each Seller hereby irrevocably designates and appoints Pro-Edge, LP. as, and Pro-Edge, LP. hereby irrevocably accepts the designation as and agrees to be, the representative of each Seller and the “Securityholders Representative” for purposes of this Agreement. The Securityholders Representative is hereby designated as the attorney in fact and agent for and on behalf of each Seller and his, her or its respective heirs, successors and assigns with respect to the transactions contemplated hereby exercise of the power to take all actions and receiving the benefits thereofmake all decisions on behalf of each Seller under this Agreement and any other document or agreement delivered in connection herewith, including without limitation, decisions and actions with respect to payments and adjustments under Article II, with respect to satisfaction and waiver of closing conditions under Article IX, and with respect to claims for indemnification under Article X. The Securityholders Representative also shall have the right power to give and receive all notices and communications to be given or received by the Sellers, or any of them, under this Agreement and to receive service of process for the consideration payable Sellers, or any of them, in connection with such transactions, each Company Securityholder shall be deemed to have approved the designation of, and hereby designates, Shareholder Representative Services LLC (the “Securityholders’ Representative”) as the Company Securityholders’ representative and as their duly authorised agent, attorney and representative for the purposes of dealing with the Purchaser any claims under this Agreement, the Subscription Share Transfer Agreements, the Warrant Surrender Agreements, the Option Surrender Agreements and the Escrow Agreement and any communication to or from the Securityholders’ Representative under such agreements shall be deemed to be communication to or from take all Company Securityholders. The Securityholders’ Representative shall be the only person entitled (actions on behalf of the Company Securityholders) to enforce rightsSellers, provide communications, make elections or provide consents under this Agreement, the Subscription Share Transfer Agreements, the Warrant Surrender Agreements, the Option Surrender Agreements and the Escrow Agreement (and in doing any of the forgoing it shall be doing so on behalf of all the Company Securityholders) and the Purchaser shall be entitled them, necessary to rely solely on such Securityholders’ Representative’s action settle, pay or inaction in dealing with the Company Securityholders, notwithstanding take any other communication whether in writing or otherwise, from any of the Company Securityholders. The Securityholders’ Representative is hereby further authorized to execute and deliver the Escrow Agreement as agent for the Company Securityholders and to exercise the Company Securityholders’ rights thereunder. The Securityholders’ Representative shall not be liable in any manner or for any reason to any Company Securityholders in respect of the decisions, determinations or agreements made or consented to by the Securityholders’ Representative, or for any acts done or not done by the Securityholders’ Representative, under or in connection with this Agreement, except to the extent that the Securityholders’ Representative was grossly negligent or engaged in wilful misconduct actions with respect to such decision, determination, agreement the Sellers’ or act done or not done any Seller’s indemnification obligations under Article X. Each Seller shall be bound by all actions taken and documents executed by the Securityholders’ Securityholders Representative in connection with this Agreement. Notices or communications to or from the Securityholders Representative shall constitute notice to or from each Seller. In performing the functions specified in this Agreement, the Securityholders Representative may act upon any instrument or other writing believed by the Securityholders Representative in good faith to be genuine and to be signed or presented by the proper Person and shall not be liable in connection with the performance by it of its duties pursuant to the provisions of this Agreement. The Company Securityholders Representative shall indemnifybe indemnified and held harmless by the Indemnifying Securityholders, defend jointly and hold harmless the Securityholders’ Representative severally, and its successors and assigns in accordance with each Indemnifying Securityholder Applicable Indemnification Portion, from and against any Losses incurred on the part of the Securityholders Representative and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs and expenses (including attorneys’ fees and court costs) (together, “Securityholders’ Representative Losses”) arising as a result out of or incurred in connection with any actions taken the acceptance or omitted administration of its duties hereunder. Without limiting the generality of the foregoing, the Securityholders Representative shall have full power and authority to be taken by the Securityholders’ Representative pursuant to interpret all the terms and provisions of this Agreement on behalf of all Indemnifying Securityholders and the Escrow Agreement provided thattheir respective heirs, in the event that any such Securityholders’ Representative Losses or any portion thereof is finally adjudicated successors and assigns.
(b) This power of attorney granted by each Seller to have been primarily caused by the gross negligence or wilful misconduct of the Securityholders’ Representative or any of its successors or assigns, the Securityholders’ Representative will reimburse the Company Securityholders the amount of such Securityholders’ Representative Losses attributable to such gross negligence or wilful misconduct. If not paid directly to the Securityholders’ Representative by the Company Securityholders, any such losses, liabilities or expenses may be recovered by the Securityholders’ Representative from the Escrow Expenses Amount and from the funds in the Escrow Fund otherwise distributable to Company Securityholders following the termination of the Escrow Period pursuant to the terms hereof and the Escrow Agreement at the time of distribution; provided that while this clause allows the Securityholders’ Representative to be paid from the Escrow Fund, this does not relieve the Company Securityholders from their obligation to promptly pay such losses, liabilities or expenses, nor does it prevent the Securityholders Representative from seeking is coupled with an interest and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated or affected by subsequent disability or incapacity of any remedies available to it at Law Seller or otherwise. If the Securityholders’ Representative shall dieby any act of any Seller or by operation of law, be removed, become disabled, resign or otherwise be unable to fulfill its responsibilities hereunder, the Company Securityholders shall (whether by consent of those persons entitled to at least a majority of the purchase price paid to all Company Securityholders), within 10 days after such person’s death, removal, disability, resignation protective supervision or inability, appoint a successor to the Securityholders’ Representative and immediately thereafter notify Purchaser of the identity of such successorany other event. Any such successor shall succeed the former Securityholders’ Representative as the Securityholders’ Representative hereunder. If for any reason there is no Securityholders’ Representative at any time, all references herein to the Securityholders’ Representative Each Seller shall be deemed to refer have waived any and all defenses that may be available to contest, negate or disaffirm the action of the Securityholders Representative taken in good faith under this Agreement or any document or agreement delivered in connection herewith. Notwithstanding the power of attorney granted in this Section 12.15, no agreement, instrument, acknowledgement or other act or document shall be ineffective solely by reason of a Seller (instead of the Securityholders Representative) having signed or given the same directly.
(c) Notwithstanding anything to the Company Securityholderscontrary contained in this Agreement or in any other agreement executed in connection with the transactions contemplated by this Agreement: (i) Buyer shall be entitled to deal exclusively with Securityholders Representative on all matters including, but not limited to, matters relating to any claim for indemnification, compensation or reimbursement hereunder; and (ii) Buyer 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 Sellers by Securityholders Representative, and on any other action taken or purported to be taken on behalf of Sellers by Securityholders Representative, as fully binding upon Sellers. Each Company Securityholder hereby agrees to receive correspondence from the Securityholders’ A decision, act, consent or instruction of Securityholders Representative, including an amendment, extension, waiver or termination of this Agreement, shall constitute a decision of Sellers and shall be final, binding and conclusive upon Sellers; and Buyer may rely upon any such decision, act, consent or instruction of Securityholders Representative as being the decision, act, consent or instruction of Sellers. Buyer is hereby relieved from any liability to any Person for any acts done by it in electronic form;accordance with such decision, act, consent or instruction of Securityholders Representative.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (Intrexon Corp)
Securityholders’ Representative. (a) By virtue of the approval and adoption of this Agreement by participating in the transactions contemplated hereby and receiving requisite consent of the benefits thereof, including Company Stockholders or by the right to receive the consideration payable in connection with such transactionsexecution of a letter of transmittal by a Company Securityholder, each of the Company Securityholder Securityholders (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware or the applicable laws of the State of California) shall be deemed to have approved the designation of, agreed to appoint Fortis Advisors LLC as its agent and hereby designates, Shareholder Representative Services LLC attorney-in-fact (the “Securityholders’ Representative”) as for and on behalf of the Company Securityholders’ representative Securityholders to give and as their duly authorised agentreceive notices and communications, attorney and representative for the purposes of dealing with the Purchaser under this Agreement, the Subscription Share Transfer Agreements, the Warrant Surrender Agreements, the Option Surrender Agreements and to authorize payment to any Indemnified Party from the Escrow Agreement 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 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 Company Securityholder or by any such Company Securityholder against any Indemnified Party or any dispute between any Indemnified Party and any communication such Company Securityholder, in each case relating to this Agreement or from the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholders’ Representative under such agreements for the 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 holding a majority-in-interest of the Outstanding Shares (on an as converted to Company Common Stock basis) immediately prior to the Effective Time. Notwithstanding the foregoing, the Securityholders’ Representative may resign at any time by providing written notice of intent to resign to the Company Securityholders, which resignation shall be deemed 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 interest of the Escrow Fund. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of the Securityholders’ 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 communication to or from all Company required of the Securityholders’ Representative in connection with its services hereunder. The Securityholders’ Representative shall be entitled to: (i) rely upon the only person entitled Payment Schedule, (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 Company SecurityholdersSecurityholder or other party.
(b) to enforce rights, provide communications, make elections or provide consents under this Agreement, the Subscription Share Transfer Agreements, the Warrant Surrender Agreements, the Option Surrender Agreements and the Escrow Agreement (and in doing any of the forgoing it shall be doing so on behalf of all the Company Securityholders) and the Purchaser shall be entitled to rely solely on such Securityholders’ Representative’s action or inaction in dealing with the Company Securityholders, notwithstanding any other communication whether in writing or otherwise, from any of the Company Securityholders. The Securityholders’ Representative is hereby further authorized to execute and deliver the Escrow Agreement as agent for the Certain Company Securityholders and to exercise the Company Securityholders’ rights thereunder. The Securityholders’ Representative shall not be liable in any manner or for any reason to any Company Securityholders in respect of the decisions, determinations or agreements made or consented to by the Securityholders’ Representative, or for any acts done or not done by the Securityholders’ Representative, under or in connection have entered into a letter agreement with this Agreement, except to the extent that the Securityholders’ Representative was grossly negligent or engaged in wilful misconduct with respect to such decision, determination, agreement or act done or not done by provide direction to the Securityholders’ Representative in connection with 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”). The Company Securityholders shall indemnify, defend and hold harmless Neither the Securityholders’ Representative (together with its members, managers, directors, officers, contractors, agents and its successors and assigns from and against employees) nor any and all claimsmember of the Advisory Group (collectively, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs and expenses (including attorneys’ fees and court costs) (together, the “Securityholders’ Representative LossesGroup”) arising as a result of or incurred in connection with shall be liable to the Company Securityholders for any actions taken act done or omitted to be hereunder as Securityholders’ Representative while acting in good faith, even if such act or omission constitutes negligence on the part of such Securityholders’ Representative. The Securityholders’ Representative shall only have the duties expressly stated in this Agreement and shall have no other duty, express or implied. The Securityholders’ Representative may engage attorneys, accountants and other professionals and experts. The Securityholders’ 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 Securityholders’ Representative pursuant based on such reliance shall be deemed conclusively to have been taken in good faith. The Company Securityholders shall indemnify the terms of this Agreement and the Escrow Agreement provided that, in the event that any such Securityholders’ Representative Losses Group and defend and hold the Securityholders’ Representative Group harmless against any loss, liability, claim, damage, fee, cost, judgment, amount paid in settlement or any portion thereof is finally adjudicated to have been primarily caused by expense incurred on the gross negligence or wilful misconduct part of the Securityholders’ Representative or any of its successors or assigns, the Securityholders’ Representative will reimburse the Company Securityholders the amount of such Securityholders’ Representative Losses attributable to such gross negligence or wilful misconduct. If not paid directly to the Securityholders’ Representative by the Company Securityholders, any such losses, liabilities or expenses may be recovered by the Securityholders’ Representative from the Escrow Expenses Amount and from the funds in the Escrow Fund otherwise distributable to Company Securityholders following the termination of the Escrow Period pursuant to the terms hereof and the Escrow Agreement at the time of distribution; provided that while this clause allows the Securityholders’ Representative to be paid from the Escrow Fund, this does not relieve the Company Securityholders from their obligation to promptly pay such losses, liabilities or expenses, nor does it prevent the Securityholders Representative from seeking any remedies available to it at Law or otherwise. If the Securityholders’ Representative shall die, be removed, become disabled, resign or otherwise be unable to fulfill its responsibilities hereunder, the Company Securityholders shall Group (by consent of those persons entitled to at least a majority of the purchase price paid to all Company Securityholders), within 10 days after such death, removal, disability, resignation or inability, appoint a successor to the Securityholders’ Representative and immediately thereafter notify Purchaser of the identity of such successor. Any such successor shall succeed the former Securityholders’ Representative so long as the Securityholders’ Representative hereunder. If for any reason there is no Securityholders’ Representative at any time, all references herein to Group was acting in good faith in connection therewith) and arising out of or in connection with the acceptance or administration of the Securityholders’ Representative shall be deemed to refer to the Company Securityholders. Each Company Securityholder hereby agrees to receive correspondence from the Securityholders’ RepresentativeGroup’s duties hereunder, including in electronic form;the reasonable fees, costs and expenses
Appears in 2 contracts
Samples: Merger Agreement (Volcano Corp), Merger Agreement (Volcano Corp)
Securityholders’ Representative. (a) Each Company Securityholder by participating in virtue of the transactions contemplated hereby approval and receiving the benefits thereofadoption of this Agreement or other appointment authorization documentation (other than such Company Stockholders, including the right to receive the if any, who have perfected appraisal rights under Delaware Laws) or by accepting any consideration payable in connection with such transactions, each Company Securityholder hereunder shall be deemed to have approved the designation ofagreed to appoint Fortis Advisors LLC, a Delaware limited liability company, as its agent and hereby designates, Shareholder Representative Services LLC attorney-in-fact (the “Securityholders’ Representative”) as for and on behalf of the Company Securityholders’ representative and as their duly authorised agent, attorney and representative Securityholders to act for the purposes of dealing Company Securityholders with the Purchaser under this Agreementregard to matters pertaining to Sections 1.17, the Subscription Share Transfer Agreements1.18, the Warrant Surrender Agreements1.19, the Option Surrender Agreements 5.5, 5.9, 5.14, 7.3, Article VIII and Article IX, give and receive notices and communications, authorize payment to any Indemnified Person from the Escrow Agreement Amount in satisfaction of claims by any Indemnified Person, object to such payments, agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Indemnified Person against any Company Securityholder or by any Company Securityholder against any Indemnified Person or any dispute between any Indemnified Person and any communication such Company Securityholder, in each case relating to this Agreement or from the transactions contemplated hereby and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholders’ Representative under such agreements for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement. All actions of the Securityholders’ Representative shall be deemed to be communication to or from all Company Securityholders. The Securityholders’ Representative facts ascertainable outside this Agreement and shall be the only person entitled (binding on behalf of the Company Securityholders) to enforce rights, provide communications, make elections or provide consents under this Agreement, the Subscription Share Transfer Agreements, the Warrant Surrender Agreements, the Option Surrender Agreements and the Escrow Agreement (and in doing any of the forgoing it shall be doing so on behalf of all the Company Securityholders) and the Purchaser shall be entitled to rely solely on such Securityholders’ Representative’s action or inaction in dealing with the Company Securityholders, notwithstanding any other communication whether in writing or otherwise, from any of the Company Securityholders. The Securityholders’ Representative is hereby further authorized to execute and deliver the Escrow Agreement as agent for the Company Securityholders and as a matter of contract law. Each Company Securityholder agrees to exercise the Company Securityholders’ rights thereunder. The Securityholders’ Representative shall not be liable in any manner or for any reason to any Company Securityholders in respect of the decisions, determinations or agreements made or consented to by receive correspondence from the Securityholders’ Representative, or for any acts done or not done including in electronic form. Such agency may be changed by the Securityholders’ Representative, under or in connection with this Agreement, except to the extent that the Securityholders’ Representative was grossly negligent or engaged in wilful misconduct with respect to such decision, determination, agreement or act done or not done by the Securityholders’ Representative in connection with this Agreement. The Company Securityholders shall indemnify, defend and hold harmless with the Securityholders’ Representative and its successors and assigns from and against any and all claims, demands, suits, actions, causes right to a majority of action, losses, damages, obligations, liabilities, costs and expenses (including attorneys’ fees and court costs) (together, “Securityholders’ Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Securityholders’ Representative pursuant to the terms of this Agreement and the Escrow Agreement provided that, in Amount from time to time. Notwithstanding the event that any such Securityholders’ Representative Losses or any portion thereof is finally adjudicated to have been primarily caused by the gross negligence or wilful misconduct of the Securityholders’ Representative or any of its successors or assignsforegoing, the Securityholders’ Representative will reimburse the Company Securityholders the amount may resign at any time by providing written notice of such Securityholders’ Representative Losses attributable intent to such gross negligence or wilful misconduct. If not paid directly resign to the Securityholders’ Representative by the Company Securityholders, any which resignation shall be effective upon the earlier of (A) 30 calendar days following delivery of such losses, liabilities written notice or expenses may be recovered (B) the appointment of a successor by the Securityholders’ Representative from the Escrow Expenses Amount and from the funds holders of a majority in the Escrow Fund otherwise distributable to Company Securityholders following the termination interest of the Escrow Period pursuant to the terms hereof and the Escrow Agreement at the time of distribution; provided that while this clause allows the Securityholders’ Representative to be paid from the Escrow Fund, this does not relieve the Company Securityholders from their obligation to promptly pay such losses, liabilities or expenses, nor does it prevent the Securityholders Representative from seeking any remedies available to it at Law or otherwiseAmount. If the Securityholders’ Representative shall die, be removed, become disabled, resign or otherwise be unable to fulfill its responsibilities hereunder, the Company Securityholders shall (by consent of those persons entitled to at least a majority of the purchase price paid to all Company Securityholders), within 10 days after such death, removal, disability, resignation or inability, appoint a successor to the Securityholders’ Representative Representative, and shall immediately thereafter notify Purchaser of Acquiror the identity of such successor. Any such successor shall succeed the former the Securityholders’ Representative as the Securityholders’ Representative hereunder. If for any reason there is no Securityholders’ Representative at any time, all references herein to the Securityholders’ Representative shall be deemed to refer to the Company Securityholders. Each Company Securityholder hereby agrees to No bond shall be required of the Securityholders’ Representative, and the Securityholders’ Representative shall not receive correspondence from any compensation for its services. A decision, act, consent or instruction of the Securityholders’ Representative, including an amendment, extension or waiver of this Agreement pursuant to its authority hereunder, shall constitute a decision of the Company Securityholders and shall be final, binding and conclusive upon the Company Securityholders.
(b) By executing this Agreement under the heading “Securityholders’ Representative,” Fortis Advisors LLC, a Delaware limited liability company, hereby (i) accepts its appointment and authorization to act as Securityholders’ Representative as attorney-in-fact and agent on behalf of the Company Securityholders in electronic form;accordance with the terms of this Agreement, and (ii) agrees to perform its obligations under, and otherwise comply with, this Section 8.5.
(c) The Securityholders’ Representative shall not be liable to any former Company Securityholder for any act done or omitted hereunder as the Securityholders’ Representative without gross negligence or willful misconduct or bad faith (and any act done or omitted pursuant to the bona fide advice of counsel, accountants and other professionals and experts retained by the Securityholders’ Representative shall be conclusive evidence of good faith). To the fullest extent permitted by applicable Legal Requirements, the Company Securityholders shall severally indemnify the Securityholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence, willful misconduct or bad faith on the part of the Securityholders’ Representative and arising out of or in connection with the acceptance or administration of its duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Securityholders’ Representative. If not paid directly to the Securityholders’ Representative by the Company Securityholders, such losses, liabilities or expenses may be recovered by the Securityholders’ Representative from the Reserve (as defined below) and the Escrow Amount otherwise distributable to the Company Securityholders (and not distributed or distributable to an Indemnified Person or subject to a pending indemnification claim of an Indemnified Person) after the Final Escrow Release Date, pursuant to the terms hereof and of the Escrow Agreement, at the time of distribution, and such recovery will be made from the Company Securityholders s according to their respective Pro Rata Share of the Merger Consideration. The Securityholders’ Representative shall only have the duties expressly stated in this Agreement and shall have no other duty, express or implied. The Securityholders’ Representative shall establish a reserve to be held by the Escrow Agent in an amount not to exceed $750,000 (the “Reserve”) from the Merger Consideration with respect to the Company Securityholders based upon their Pro Rata Share to fund potential expenses of the Securityholders’ Representative in carrying out its authorized duties. The Securityholders’ Representative may engage attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as the Securityholders’ Representative may deem necessary or desirable and incur other out-of-pocket expenses related to performing its services hereunder and paid out of the Reserve. The Securityholders’ 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 Securityholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith. On the Final Escrow Release Date, the Escrow Agent shall, in accordance with the terms and conditions of the Escrow Agreement, release all remaining funds held by the Escrow Agent with respect to the Reserve (and not distributed or distributable to the Securityholders’ Representative in accordance with this Section 8.5) to the Company Securityholders in accordance with each such Company Securityholder’s Pro Rata Share as set forth on the Spreadsheet. No provision of this Agreement or the Escrow Agreement shall require the Securityholders’ Representative 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 under this Agreement or the Escrow Agreement.
(d) All of the immunities and powers granted to the Securityholders’ Representative under this Agreement shall survive the Closing and/or any termination of this Agreement and the Escrow Agreement. The grant of authority provided for in this Section 8.5: (i) is 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 Securityholders of the whole or any fraction of his, her or its interest in the Escrow Fund.
(e) The Company shall deliver to the Securityholders’ Representative a copy of the following documents: (i) the Estimated Net Working Capital Statement, (ii) the calculation of the Merger Consideration, (iii) the Spreadsheet, (iv) the Closing Expenses Certificate, (iv) the Company Debt Certificate and (v) the Company Cash Certificate.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Affymetrix Inc)
Securityholders’ Representative. by participating in the transactions (a) In order to efficiently administer certain matters contemplated hereby and receiving following the benefits thereofClosing, including any actions that the right Securityholders’ Representative may, in its sole discretion, determine to receive the consideration payable be necessary, desirable or appropriate in connection with such transactionsthe matters set forth in this Agreement (including Sections 1.15 (Exchange/Payment), each Company Securityholder 1.17 (Post-Closing Adjustment), 1.18 (Milestone Consideration), 5.6 (Tax Matters), 8 (Indemnification) and 10.1 (Amendment)), the Securityholders, by the adoption of this Agreement, acceptance of consideration under this Agreement or the completion and execution of the Letters of Transmittal or Joinder Agreement shall be deemed to have approved designated Xxxxxx Xxxxx as the designation of, and hereby designates, Shareholder Representative Services LLC representative of the Securityholders (the “Securityholders’ Representative”).
(b) as the Company The Securityholders’ Representative may resign at any time. In the event the Securityholders’ Representative dies, becomes unable to perform his, her or its responsibilities hereunder or resigns from such position, the Securityholders who hold at least a majority in interest of the Ownership Percentages at such time shall be authorized to and shall select another representative to fill such vacancy and as their duly authorised agent, attorney and such substituted representative shall be deemed to be the Securityholders’ Representative for the all purposes of dealing with this Agreement and the Purchaser under documents delivered pursuant hereto.
(c) By their adoption of this Agreement, acceptance of consideration under this Agreement or the Subscription Share Transfer Agreementsdelivery of the Letter of Transmittal and/or Surrender Agreement, as applicable, contemplated by Section 1.16 (Exchange/Payment), the Warrant Surrender AgreementsSecurityholders shall be deemed to have agreed, in addition to the Option Surrender Agreements foregoing, that:
(i) the Securityholders’ Representative shall be appointed and constitute the exclusive agent and true and lawful attorney-in-fact of each Securityholder, with full power in his, her or its name and on his, her or its behalf to act according to the terms of this Agreement and in general to do all things and to perform all acts including executing and delivering any agreements, amendments, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement and the agreements ancillary hereto. The Securityholders’ Representative hereby accepts such appointment;
(ii) the Securityholders’ Representative shall have full authority to (A) execute, deliver, acknowledge, certify and file on behalf of the Securityholders (in the name of any or all of the Securityholders or otherwise) any and all documents, including the Escrow Agreement, that the Securityholders’ Representative may, in its sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as the Securityholders’ Representative may, in its sole discretion, determine to be appropriate, (B) give and receive notices and other communications relating to this Agreement and the transactions contemplated hereby (except to the extent that this Agreement contemplates that such notice or communication shall be given or received by the Securityholder individually), (C) take or refrain from taking any communication actions (whether by negotiation, settlement, litigation or otherwise) to resolve or from settle all matters and disputes arising out of or related to this Agreement and the transactions contemplated hereby and thereby, including the payment of any Adjustment Amount pursuant to Section 1.17(g) (Post-Closing Adjustment) and the payment of any amounts in satisfaction of any claims for indemnification made by Parent pursuant to Section 8 (Indemnification), and (D) engage attorneys, accountants, financial and other advisors, paying agents and other persons necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing; provided, however, that the Securityholders’ Representative shall have no obligation to act on behalf of the Securityholders, except as expressly provided herein and in the Securityholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule;
(iii) Parent shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on the instructions and decisions given or made by the Securityholders’ Representative as to any of the matters described in this Section 1.22 (Securityholders’ Representative), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iv) all actions, decisions and instructions of the Securityholders’ Representative shall be conclusive and binding upon each of the Securityholders, and no Securityholders shall have any cause of action against the Securityholders’ Representative and the Securityholders’ Representative will not be liable for any action taken, decision made or instruction given by the Securityholders’ Representative under such agreements this Agreement, except for fraud or willful breach of this Agreement or the Escrow Agreement on the part of the Securityholders’ Representative;
(v) the provisions of this Section 1.22 (Securityholders’ Representative) and the powers, immunities and rights to indemnification granted to the Securityholders’ Representative Group hereunder: (A) are independent and severable, are irrevocable and coupled with an interest, and shall survive the death, incompetence, bankruptcy or liquidation of any Securityholder and shall be deemed binding on any successor thereto; and (B) shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated by this Agreement;
(vi) no Securityholders shall have any cause of action against the Securityholders’ Representative for any action taken, decision made or instruction given by the Securityholders’ Representative under this Agreement, and all defenses which may be available to any Securityholder to contest, negate or disaffirm the action of the Securityholders’ Representative taken in good faith under this Agreement or the Securityholders’ Representative Engagement Agreement are waived;
(vii) the Securityholders’ Representative shall be entitled to: (x) rely upon the Closing Payment Schedule, (y) rely upon any signature believed by it to be communication genuine, and (z) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Securityholder or from all Company other party; and
(viii) the provisions of this Section 1.22 (Securityholders’ Representative) shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Securityholder, and any references in this Agreement to a Securityholder or the Securityholders shall mean and include the successors to the Securityholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) At the Closing, Parent shall cause to be deposited, in an account designated by the Securityholders’ Representative, $50,000 (the “Securityholders’ Representative Reserve”). The Securityholders’ Representative shall Reserve may be applied as the only person entitled Securityholders’ Representative, in its sole discretion, determines to be appropriate to defray, offset, or pay any charges, fees, costs, liabilities, charges, losses, fines, damages, claims, forfeitures, actions, judgments, amounts paid in settlement or expenses (on behalf including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers) that the Company Securityholders) to enforce rights, provide communications, make elections or provide consents under ’ Representative incurred in connection with the transactions contemplated by this Agreement and the Securityholders’ Representative Engagement Agreement, including in connection with the Subscription Share Transfer Agreements, the Warrant Surrender Agreements, the Option Surrender Agreements and the Escrow Agreement matters contemplated by Section 1.17 (and in doing any of the forgoing it shall be doing so on behalf of all the Company SecurityholdersExchange/Payment) and the Purchaser shall be entitled to rely solely on such evaluation or defense of any claim for indemnification under this Agreement (the “Securityholders’ Representative’s action Representative Expenses”). The Securityholders’ Representative will hold these funds in a non-interest bearing account separate from its corporate funds, will not use these funds for its operating expenses or inaction in dealing with the Company Securityholders, notwithstanding any other communication whether corporate purposes and will not voluntarily make these funds available to its creditors in writing or otherwise, from any the event of the Company Securityholdersbankruptcy. The Securityholders’ Representative is hereby further authorized to execute not providing any investment supervision, recommendations or advice and deliver shall have no responsibility or Liability for any loss of principal of the Escrow Agreement as agent for the Company Securityholders and to exercise the Company Securityholders’ rights thereunderRepresentative Reserve other than as a result of its gross negligence or willful misconduct. The Securityholders’ Representative shall not be liable in may contribute funds to the Securityholders’ Representative Reserve from any manner or for any reason consideration otherwise distributable to any Company Securityholders in respect the Participating Securityholders. The balance of the decisionsSecurityholders’ Representative Reserve held pursuant to this Section 1.21(d) (Securityholders’ Representative), determinations or agreements made or consented if any, shall, at the sole discretion of the Securityholders’ Representative and at such time to by be determined in the sole discretion of the Securityholders’ Representative, be distributed as set forth in Section 1.5 (Conversion of Shares) or for any acts done or not done by the Securityholders’ RepresentativeSection 1.6 (Treatment of Company Options), under or in connection with this Agreementas applicable, except to the extent that Participating Securityholders. Prior to any such distribution of the Securityholders’ Representative was grossly negligent or engaged in wilful misconduct Reserve, the Securityholders’ Representative shall deliver to Parent and the Payment Agent an updated Closing Payment Schedule (which need not be certified) setting forth the portion of the Securityholders’ Representative Reserve payable to each Participating Securityholder (which distribution shall be subject to Section 1.16(f) (Exchange/Payment)).
(e) Certain Participating Securityholders have entered into an engagement agreement (the “Securityholders’ Representative Engagement Agreement”) with respect the Securityholders’ Representative to such decision, determination, agreement or act done or not done by provide direction to the Securityholders’ Representative in connection with its services under this Agreement and the Securityholders’ Representative Engagement Agreement. As between the Participating Securityholders and the Securityholders’ Representative, neither the Securityholders’ Representative nor its members, managers, directors, officers, contractors, agents and employees (collectively, the “Securityholders’ Representative Group”) shall be liable for any act done or omitted hereunder or under the Escrow Agreement as Securityholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith except for fraud or willful breach of this Agreement or the Escrow Agreement by the Securityholders’ Representative. The Company Securityholders’ Representative Group shall be indemnified, defended and held harmless and reimbursed by the Participating Securityholders shall indemnifyagainst any Securityholders’ Representative Expenses incurred without bad faith, defend and hold harmless gross negligence or willful misconduct on the part of the Securityholders’ 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) (together, “Securityholders’ Representative Losses”) arising as a result out of or incurred in connection with the acceptance or administration of its duties hereunder and in connection with any actions taken Securityholders’ Representative Expenses, at the election of the Securityholders’ Representative, at any time first, from the Securityholders’ Representative Reserve, to the extent any funds remain in such fund, and second, directly from the Participating Securityholders according to each Participating Securityholder’s Ownership Percentage; provided, however, that no Participating Securityholder shall be liable to the Securityholders’ Representative for any amount in excess of the portion of the Upfront Merger Consideration actually paid to such Participating Securityholder. The Participating Securityholders acknowledge that the Securityholders’ Representative shall not be required to expend or omitted 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 or the transactions contemplated hereby. Furthermore, the Securityholders’ Representative shall not be taken required to take any action unless the Securityholders’ Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Securityholders’ Representative against the costs, expenses and liabilities which may be incurred by the Securityholders’ Representative pursuant in performing such actions. The immunities and rights to indemnification shall survive the terms of this Agreement and the Escrow Agreement provided that, in the event that any such Securityholders’ Representative Losses resignation or any portion thereof is finally adjudicated to have been primarily caused by the gross negligence or wilful misconduct removal of the Securityholders’ Representative and the Closing or any of its successors or assigns, the Securityholders’ Representative will reimburse the Company Securityholders the amount of such Securityholders’ Representative Losses attributable to such gross negligence or wilful misconduct. If not paid directly to the Securityholders’ Representative by the Company Securityholders, any such losses, liabilities or expenses may be recovered by the Securityholders’ Representative from the Escrow Expenses Amount and from the funds in the Escrow Fund otherwise distributable to Company Securityholders following the termination of the Escrow Period pursuant to the terms hereof and the Escrow Agreement at the time of distribution; provided that while this clause allows the Securityholders’ Representative to be paid from the Escrow Fund, this does not relieve the Company Securityholders from their obligation to promptly pay such losses, liabilities or expenses, nor does it prevent the Securityholders Representative from seeking any remedies available to it at Law or otherwise. If the Securityholders’ Representative shall die, be removed, become disabled, resign or otherwise be unable to fulfill its responsibilities hereunder, the Company Securityholders shall (by consent of those persons entitled to at least a majority of the purchase price paid to all Company Securityholders), within 10 days after such death, removal, disability, resignation or inability, appoint a successor to the Securityholders’ Representative and immediately thereafter notify Purchaser of the identity of such successor. Any such successor shall succeed the former Securityholders’ Representative as the Securityholders’ Representative hereunder. If for any reason there is no Securityholders’ Representative at any time, all references herein to the Securityholders’ Representative shall be deemed to refer to the Company Securityholders. Each Company Securityholder hereby agrees to receive correspondence from the Securityholders’ Representative, including in electronic form;Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Bionano Genomics, Inc)
Securityholders’ Representative. (a) Each Company Securityholder by participating virtue of the approval and adoption of this Agreement or other appointment authorization documentation (other than such Company Stockholders, if any, who have perfected appraisal rights under Delaware Laws) or by accepting any consideration payable hereunder shall be deemed to have agreed to appoint Fortis Advisors LLC, a Delaware limited liability company, as its agent and attorney-in-fact (the ”Securityholders’ Representative”) for and on behalf of the Company Securityholders to act for the Company Securityholders with regard to matters pertaining to Sections 1.17, 1.18, 1.19, 5.10, 5.15, 7.3, Article VIII and Article IX, give and receive notices and communications, authorize payment to any Indemnified Person from the Escrow Amount in satisfaction of claims by any Indemnified Person, object to such payments, agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Indemnified Person against any Company Securityholder or by any Company Securityholder against any Indemnified Person or any dispute between any Indemnified Person and any such Company Securityholder, in each case relating to this Agreement or the transactions contemplated hereby and receiving to take all other actions that are either (i) necessary or appropriate in the benefits thereof, including the right to receive the consideration payable in connection with such transactions, each Company Securityholder shall be deemed to have approved the designation of, and hereby designates, Shareholder Representative Services LLC (the “Securityholders’ Representative”) as the Company Securityholders’ representative and as their duly authorised agent, attorney and representative for the purposes judgment of dealing with the Purchaser under this Agreement, the Subscription Share Transfer Agreements, the Warrant Surrender Agreements, the Option Surrender Agreements and the Escrow Agreement and any communication to or from the Securityholders’ Representative under such agreements for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement. All actions of the Securityholders’ Representative shall be deemed to be communication to or from all Company Securityholders. The Securityholders’ Representative facts ascertainable outside this Agreement and shall be the only person entitled (binding on behalf of the Company Securityholders) to enforce rights, provide communications, make elections or provide consents under this Agreement, the Subscription Share Transfer Agreements, the Warrant Surrender Agreements, the Option Surrender Agreements and the Escrow Agreement (and in doing any of the forgoing it shall be doing so on behalf of all the Company Securityholders) and the Purchaser shall be entitled to rely solely on such Securityholders’ Representative’s action or inaction in dealing with the Company Securityholders, notwithstanding any other communication whether in writing or otherwise, from any of the Company Securityholders. The Securityholders’ Representative is hereby further authorized to execute and deliver the Escrow Agreement as agent for the Company Securityholders and as a matter of contract law. Each Company Securityholder agrees to exercise the Company Securityholders’ rights thereunder. The Securityholders’ Representative shall not be liable in any manner or for any reason to any Company Securityholders in respect of the decisions, determinations or agreements made or consented to by receive correspondence from the Securityholders’ Representative, or for any acts done or not done including in electronic form. Such agency may be changed by the Securityholders’ Representative, under or in connection with this Agreement, except to the extent that the Securityholders’ Representative was grossly negligent or engaged in wilful misconduct with respect to such decision, determination, agreement or act done or not done by the Securityholders’ Representative in connection with this Agreement. The Company Securityholders shall indemnify, defend and hold harmless with the Securityholders’ Representative and its successors and assigns from and against any and all claims, demands, suits, actions, causes right to a majority of action, losses, damages, obligations, liabilities, costs and expenses (including attorneys’ fees and court costs) (together, “Securityholders’ Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Securityholders’ Representative pursuant to the terms of this Agreement and the Escrow Agreement provided that, in Amount from time-to-time. Notwithstanding the event that any such Securityholders’ Representative Losses or any portion thereof is finally adjudicated to have been primarily caused by the gross negligence or wilful misconduct of the Securityholders’ Representative or any of its successors or assignsforegoing, the Securityholders’ Representative will reimburse the Company Securityholders the amount may resign at any time by providing written notice of such Securityholders’ Representative Losses attributable intent to such gross negligence or wilful misconduct. If not paid directly resign to the Securityholders’ Representative by the Company Securityholders, any which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such losses, liabilities written notice or expenses may be recovered (B) the appointment of a successor by the Securityholders’ Representative from the Escrow Expenses Amount and from the funds holders of a majority in the Escrow Fund otherwise distributable to Company Securityholders following the termination interest of the Escrow Period pursuant to the terms hereof and the Escrow Agreement at the time of distribution; provided that while this clause allows the Securityholders’ Representative to be paid from the Escrow Fund, this does not relieve the Company Securityholders from their obligation to promptly pay such losses, liabilities or expenses, nor does it prevent the Securityholders Representative from seeking any remedies available to it at Law or otherwiseAmount. If the Securityholders’ Representative shall die, be removed, become disabled, resign or otherwise be unable to fulfill its responsibilities hereunder, the Company Securityholders shall (by consent of those persons entitled to at least a majority of the purchase price paid to all Company Securityholders), within 10 days after such death, removal, disability, resignation or inability, appoint a successor to the Securityholders’ Representative Representative, and shall immediately thereafter notify Purchaser of Acquiror the identity of such successor. Any such successor shall succeed the former the Securityholders’ Representative as the Securityholders’ Representative hereunder. If for any reason there is no Securityholders’ Representative at any time, all references herein to the Securityholders’ Representative shall be deemed to refer to the Company Securityholders. Each Company Securityholder hereby agrees to No bond shall be required of the Securityholders’ Representative, and the Securityholders’ Representative shall not receive correspondence from any compensation for its services. A decision, act, consent or instruction of the Securityholders’ Representative, including an amendment, extension or waiver of this Agreement pursuant to its authority hereunder, shall constitute a decision of the Company Securityholders and shall be final, binding and conclusive upon the Company Securityholders.
(b) By executing this Agreement under the heading “Securityholders’ Representative,” Fortis Advisors LLC, a Delaware limited liability company, hereby (i) accepts its appointment and authorization to act as Securityholders’ Representative as attorney-in-fact and agent on behalf of the Company Securityholders in electronic form;accordance with the terms of this Agreement, and (ii) agrees to perform its obligations under, and otherwise comply with, this Section 8.5.
(c) The Securityholders’ Representative shall not be liable to any former Company Securityholder for any act done or omitted hereunder as the Securityholders’ Representative without gross negligence or willful misconduct or bad faith (and any act done or omitted pursuant to the bona fide advice of counsel, accountants and other professionals and experts retained by the Securityholders’ Representative shall be conclusive evidence of good faith). To the fullest extent permitted by applicable Legal Requirements, the Company Securityholders shall severally indemnify the Securityholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence, willful misconduct or bad faith on the part of the Securityholders’ Representative and arising out of or in connection with the acceptance or administration of its duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Securityholders’ Representative. If not paid directly to the Securityholders’ Representative by the Company Securityholders, such losses, liabilities or expenses may be recovered by the Securityholders’ Representative from the Reserve (as defined below) and the Escrow Amount otherwise distributable to the Company Securityholders (and not distributed or distributable to an Indemnified Person or subject to a pending indemnification claim of an Indemnified Person) after the Final Escrow Release Date, pursuant to the terms hereof and of the Escrow Agreement, at the time of distribution, and such recovery will be made from the Company Securityholders s according to their respective Pro Rata Share of the Merger Consideration. The Securityholders’ Representative shall only have the duties expressly stated in this Agreement and shall have no other duty, express or implied. The Securityholders’ Representative shall establish a reserve to be held by the Escrow Agent in an amount not to exceed Seven Hundred Fifty Thousand Dollars ($750,000) (the “Reserve”) from the Merger Consideration with respect to the Company Securityholders based upon their Pro Rata Share to fund potential expenses of the Securityholders’ Representative in carrying out its authorized duties. The Securityholders’ Representative may engage attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as the Securityholders’ Representative may deem necessary or desirable and incur other out-of-pocket expenses related to performing its services hereunder and paid out of the Reserve. The Securityholders’ 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 Securityholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith. On the Final Escrow Release Date, the Escrow Agent shall, in accordance with the terms and conditions of the Escrow Agreement, release all remaining funds held by the Escrow Agent with respect to the Reserve (and not distributed or distributable to the Securityholders’ Representative in accordance with this Section 8.5(a)) to the Company Securityholders in accordance with each such Company Securityholder’s Pro Rata Share as set forth on the Spreadsheet. No provision of this Agreement or the Escrow Agreement shall require the Securityholders’ Representative 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 under this Agreement or the Escrow Agreement.
(d) All of the immunities and powers granted to the Securityholders’ Representative under this Agreement shall survive the Closing and/or any termination of this Agreement and the Escrow Agreement. The grant of authority provided for in this Section 8.5: (i) is 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 Securityholders of the whole or any fraction of his, her or its interest in the Escrow Fund.
(e) The Company shall deliver to the Securityholders’ Representative a copy of the following documents: (i) the Estimated Net Working Capital Statement, (ii) the calculation of the Merger Consideration, (iii) the Spreadsheet, (iv) the Closing Expenses Certificate, (iv) the Company Debt Certificate and (v) the Company Cash Certificate.
Appears in 1 contract
Samples: Merger Agreement (Affymetrix Inc)
Securityholders’ Representative. (a) Each Effective Time Holder (other than (i) such Company Stockholders, if any, who have perfected appraisal or dissenters’ rights under Delaware Law or California Law, and (ii) Acquiror, in any capacity other than as a Company Securityholder under this Agreement) by participating virtue of the approval and adoption of this Agreement or other appointment authorization documentation, or by accepting any consideration payable hereunder, shall be deemed to have agreed to appoint Fortis Advisors LLC, a Delaware limited liability company, as the Securityholders’ Representative and to be its agent and attorney-in-fact for and on behalf of the Effective Time Holders to act for the Effective Time Holders with regard to matters pertaining to the Merger, this Agreement and the transactions contemplated hereby, including Sections 1.17, 1.18, 1.19, 5.4(b), 5.5(b), 5.8, 7.3, ARTICLE VIII and ARTICLE IX, give and receive notices and communications, authorize payment to any Indemnified Person in satisfaction of claims by any Indemnified Person (including from the Indemnity Escrow Account), object to such payments, agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Indemnified Person against any Effective Time Holder or by any Effective Time Holder against any Indemnified Person or any dispute between any Indemnified Person and any such Effective Time Holder, in each case relating to this Agreement or the transactions contemplated hereby and receiving to take all other actions that are either (i) necessary or appropriate in the benefits thereof, including the right to receive the consideration payable in connection with such transactions, each Company Securityholder shall be deemed to have approved the designation of, and hereby designates, Shareholder Representative Services LLC (the “Securityholders’ Representative”) as the Company Securityholders’ representative and as their duly authorised agent, attorney and representative for the purposes judgment of dealing with the Purchaser under this Agreement, the Subscription Share Transfer Agreements, the Warrant Surrender Agreements, the Option Surrender Agreements and the Escrow Agreement and any communication to or from the Securityholders’ Representative under such agreements shall be deemed to be communication to for the accomplishment of the foregoing or from all Company Securityholders. The (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement; provided, however, that the Securityholders’ Representative shall be the only person entitled (have no obligation to act on behalf of the Company Securityholders) to enforce rightsEffective Time Holders, provide communications, make elections or provide consents under this except as expressly provided herein and in the Escrow Agreement, the Subscription Share Transfer Agreementsand for purposes of clarity, the Warrant Surrender Agreements, the Option Surrender Agreements and the Escrow Agreement (and in doing any there are no obligations of the forgoing it shall be doing so on behalf of all Effective Time Holders that require the Company Securityholders) and the Purchaser shall be entitled to rely solely on such Securityholders’ Representative’s action or inaction in dealing with the Company Securityholders, notwithstanding any other communication whether in writing or otherwise, from any of the Company Securityholders. The Securityholders’ Representative is hereby further authorized to execute and deliver the Escrow Agreement as agent for in any ancillary agreement or the Company Securityholders and Disclosure Letter. Each Effective Time Holder agrees to exercise the Company Securityholders’ rights thereunder. The Securityholders’ Representative shall not be liable in any manner or for any reason to any Company Securityholders in respect of the decisions, determinations or agreements made or consented to by receive correspondence from the Securityholders’ Representative, or for any acts done or not done including in electronic form. Such agency may be changed by the Securityholders’ Representative, under or in connection with this Agreement, except to the extent that the Securityholders’ Representative was grossly negligent or engaged in wilful misconduct with respect to such decision, determination, agreement or act done or not done Effective Time Holders upon written notice signed by the Securityholders’ Representative Effective Time Holders representing at least a majority in connection with this Agreement. The Company Securityholders shall indemnify, defend and hold harmless interest of all Effective Time Holders (based on their Pro Rata Share of the Securityholders’ 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 costsMerger Consideration) (together, the “Securityholders’ Representative LossesMajority Effective Time Holders”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by from time-to-time. Notwithstanding the Securityholders’ Representative pursuant to the terms of this Agreement and the Escrow Agreement provided that, in the event that any such Securityholders’ Representative Losses or any portion thereof is finally adjudicated to have been primarily caused by the gross negligence or wilful misconduct of the Securityholders’ Representative or any of its successors or assignsforegoing, the Securityholders’ Representative will reimburse may resign at any time by providing written notice of intent to resign to the Company Securityholders Effective Time Holders, which resignation shall be effective upon the amount earlier of (A) thirty (30) calendar days following delivery of such Securityholders’ Representative Losses attributable to such gross negligence written notice or wilful misconduct. If not paid directly to (B) the Securityholders’ Representative appointment of a successor by the Company Securityholders, any such losses, liabilities or expenses may be recovered by the Securityholders’ Representative from the Escrow Expenses Amount and from the funds in the Escrow Fund otherwise distributable to Company Securityholders following the termination of the Escrow Period pursuant to the terms hereof and the Escrow Agreement at the time of distribution; provided that while this clause allows the Securityholders’ Representative to be paid from the Escrow Fund, this does not relieve the Company Securityholders from their obligation to promptly pay such losses, liabilities or expenses, nor does it prevent the Securityholders Representative from seeking any remedies available to it at Law or otherwiseMajority Effective Time Holders. If the Securityholders’ Representative shall die, be removed, become disabled, resign or otherwise be unable to fulfill its responsibilities hereunder, the Company Securityholders Majority Effective Time Holders shall (by consent of those persons entitled to at least a majority of the purchase price paid to all Company Securityholders), within 10 days after such death, removal, disability, resignation or inability, appoint a successor to the Securityholders’ Representative Representative, and shall immediately thereafter notify Purchaser of Acquiror the identity of such successor. Any such successor shall succeed the former the Securityholders’ Representative as the Securityholders’ Representative hereunder. If for any reason there is no Securityholders’ Representative at any time, all references herein to the Securityholders’ Representative shall be deemed to refer to the Company Majority Effective Time Holders. No bond shall be required of the Securityholders’ Representative. Each Company Securityholder hereby agrees to receive correspondence from A decision, act, consent or instruction of the Securityholders’ Representative, including an amendment, extension or waiver of this Agreement pursuant to its authority hereunder, shall constitute a decision of the Effective Time Holders and shall be final, binding and conclusive upon the Effective Time Holders.
(b) Each Effective Time Holder (other than (i) such Company Stockholders, if any, who have perfected appraisal or dissenters’ rights under Delaware Law or California Law, and (ii) Acquiror, in electronic form;any capacity other than as a Company Securityholder under this Agreement) by virtue of the approval and adoption of this Agreement or other appointment authorization documentation, or by accepting any consideration payable hereunder, (i) agrees that all actions taken by the Securityholders’ Representative under this Agreement or the Escrow Agreement shall be binding upon such Effective Time Holder and such Effective Time Holder’s successors as if expressly confirmed and ratified in writing by such Effective Time Holder, (ii) waives any and all defenses which may be available to contest, negate or disaffirm the action of the Securityholders’ Representative taken in good faith under this Agreement or the Escrow Agreement and (iii) grants the Securityholders’ Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Effective Time Holder and its successors.
(c) By executing this Agreement under the heading “Securityholders’ Representative,” Fortis Advisors LLC, a Delaware limited liability company, hereby (i) accepts its appointment and authorization to act as Securityholders’ Representative as attorney-in-fact and agent on behalf of the Effective Time Holders in accordance with the terms of this Agreement, and (ii) agrees to perform its obligations under, discharge its obligations in connection with, and otherwise comply with, this Section 8.5.
(d) The Securityholders’ Representative and its members, managers, officers, agents and employees shall not be liable to any Effective Time Holder for any act done or omitted hereunder as the Securityholders’ Representative without gross negligence or willful misconduct or bad faith (and any act done or omitted pursuant to the bona fide advice of counsel, accountants and other professionals and experts retained by the Securityholders’ Representative shall be conclusive evidence of good faith). To the fullest extent permitted by applicable Legal Requirements, the Effective Time Holders shall severally indemnify the Securityholders’ Representative and its members, managers, directors, officers, agents and employees and hold them harmless against any loss, liability or expense incurred without gross negligence, willful misconduct or bad faith on the part of the Securityholders’ Representative and arising out of or in connection with the acceptance or administration of its duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Securityholders’ Representative as well as any fee incurred pursuant to the Securityholders’ Representative engagement letter. Except as set forth in Section 8.6(b), any such loss, liability, expense or fee shall be recovered by the Securityholders’ Representative first from the Reserve, second from any distribution of the Combined Escrow Amount otherwise distributable to the Effective Time Holders pursuant to the terms hereof and the Escrow Agreement at the time of distribution in accordance with written instructions delivered by the Securityholders’ Representative to the Escrow Agent, and third, directly from the Effective Time Holders according to their respective Pro Rata Share. The Securityholders’ Representative shall only have the duties expressly stated in this Agreement and shall have no other duty, express or implied. The Securityholders’ Representative shall establish a reserve to be held by the Escrow Agent in an amount not to exceed Five Hundred Thousand Dollars ($500,000) (the “Reserve”) from the Merger Consideration with respect to the Effective Time Holders based upon their Pro Rata Share to fund potential expenses of the Securityholders’ Representative in carrying out its authorized duties. The Securityholders’ Representative may engage attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as the Securityholders’ Representative may deem necessary or desirable and incur other out-of-pocket expenses related to performing its services hereunder and paid out of the Reserve. The Securityholders’ 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 Securityholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith. As determined in the sole discretion of the Securityholders’ Representative, on the later to occur of (i) the Escrow Release Date and (ii) the date on which there are no Outstanding Claims (as defined in the Escrow Agreement), the Escrow Agent shall release all remaining funds held by the Escrow Agent with respect to the Reserve (and not distributed or distributable to the Securityholders’ Representative in accordance with this Section 8.5(d)) to the Effective Time Holders (other than holders of Excluded Shares) in accordance with each such Effective Time Holder’s Pro Rata Share (and the portion attributable to former holders of Vested Company Options shall be paid to the Company’s payroll processor for further distribution to such former holders of Vested Company Options). No provision of this Agreement or the Escrow Agreement shall require the Securityholders’ Representative 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 under this Agreement or the Escrow Agreement. Furthermore, the Securityholders’ Representative shall not be required to take any action unless the Securityholders’ Representative has been provided with funds, security or indemnities which, in its determination, are reasonably sufficient to protect the Securityholders’ Representative against the costs, expenses and liabilities which may be incurred by the Securityholders’ Representative in performing such actions.
(e) To the extent the Securityholders’ Representative receives documents, spreadsheets or other forms of information from any party and the Securityholders’ Representative is required to deliver any such document, spreadsheet or other form of information to another party, the Securityholders’ Representative is not responsible for the content of such materials, nor is the Securityholders’ Representative responsible for confirming the accuracy of any information contained in such materials or reconciling the content of any such materials with any other documents, spreadsheets or other information. The Securityholders’ Representative shall not be liable to any Effective Time Holders for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Effective Time Holder to whom payment was due, but not made, shall be to recover from other Effective Time Holders any payment in excess of the amount to which they are determined to have been entitled pursuant to this Agreement; provided, however, that the foregoing recourse limitation shall not apply in any case where such error was due to fraud or willful misconduct by the Securityholders’ Representative. The Securityholders’ Representative shall be entitled to rely upon the Spreadsheet provided to it setting forth any apportionment or distribution of payments required to be made pursuant to this Agreement.
(f) All of the immunities and powers granted to the Securityholders’ Representative under this Agreement shall survive the Closing and any termination of this Agreement and the Escrow Agreement. The grant of authority provided for in this Section 8.5: (i) is coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Effective Time Holder and shall be binding on any successor thereto and (ii) shall survive the delivery of an assignment by any Effective Time Holders of the whole or any fraction of his, her or its interest in the Combined Escrow Amount.
Appears in 1 contract
Samples: Merger Agreement (Outerwall Inc)
Securityholders’ Representative. (a) Each Company Securityholder, by participating in virtue of the transactions contemplated hereby approval and receiving adoption of this Agreement or other appointment authorization documentation (other than such Company Stockholders, if any, who have perfected appraisal rights under the benefits thereof, including the right to receive the Delaware Code) or by accepting any consideration payable in connection with such transactions, each Company Securityholder hereunder shall be deemed to have approved the designation of, agreed to appoint Josh Held as its agent and hereby designates, Shareholder Representative Services LLC attorney-in-fact (the “Securityholders’ Representative”) as the Company Securityholders’ representative for and as their duly authorised agent, attorney and representative for the purposes of dealing with the Purchaser under this Agreement, the Subscription Share Transfer Agreements, the Warrant Surrender Agreements, the Option Surrender Agreements and the Escrow Agreement and any communication to or from the Securityholders’ Representative under such agreements shall be deemed to be communication to or from all Company Securityholders. The Securityholders’ Representative shall be the only person entitled (on behalf of the Company Securityholders) Securityholders to enforce rights, provide communications, make elections or provide consents under this Agreement, the Subscription Share Transfer Agreements, the Warrant Surrender Agreements, the Option Surrender Agreements and the Escrow Agreement (and in doing any of the forgoing it shall be doing so on behalf of all the Company Securityholders) and the Purchaser shall be entitled to rely solely on such Securityholders’ Representative’s action or inaction in dealing with the Company Securityholders, notwithstanding any other communication whether in writing or otherwise, from any of the Company Securityholders. The Securityholders’ Representative is hereby further authorized to execute and deliver the Escrow Agreement as agent act for the Company Securityholders as set forth herein, including, without limitation, with regard to matters pertaining to Sections 1.4, 2.3, 2.4, 2.5, 2.6, 6.4, 6.6, 7.3, Article IX and Article X, give and receive notices and communications, authorize offsetting Escrow Shares in satisfaction of claims by any Indemnified Person, object to such payments, agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Indemnified Person against any Escrow Participant or by any Company Securityholder against any Indemnified Person or any dispute between any Indemnified Person and any such Company Securityholder, in each case, relating to this Agreement or the transactions contemplated hereby and to exercise take all other actions that are either (i) necessary or appropriate in the Company Securityholders’ rights thereunder. The judgment of the Securityholders’ Representative shall not be liable in any manner or for any reason to any Company Securityholders in respect the accomplishment of the decisions, determinations foregoing or agreements made (ii) specifically mandated by the terms of this Agreement or consented the Escrow Agreement. Each Company Securityholder agrees to by receive correspondence from the Securityholders’ Representative, or for any acts done or not done by including in electronic form. Notwithstanding the Securityholders’ Representative, under or in connection with this Agreement, except to the extent that the Securityholders’ Representative was grossly negligent or engaged in wilful misconduct with respect to such decision, determination, agreement or act done or not done by the Securityholders’ Representative in connection with this Agreement. The Company Securityholders shall indemnify, defend and hold harmless the Securityholders’ 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) (together, “Securityholders’ Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Securityholders’ Representative pursuant to the terms of this Agreement and the Escrow Agreement provided that, in the event that any such Securityholders’ Representative Losses or any portion thereof is finally adjudicated to have been primarily caused by the gross negligence or wilful misconduct of the Securityholders’ Representative or any of its successors or assignsforegoing, the Securityholders’ Representative will reimburse the Company Securityholders the amount may resign at any time by providing written notice of such Securityholders’ Representative Losses attributable intent to such gross negligence or wilful misconduct. If not paid directly resign to the Securityholders’ Representative by the Company Securityholders, any which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such losses, liabilities written notice or expenses may be recovered (B) the appointment of a successor by the Securityholders’ Representative from the Escrow Expenses Amount and from the funds holders of a majority in the Escrow Fund otherwise distributable to Company Securityholders following the termination interest of the Escrow Period pursuant to the terms hereof and the Escrow Agreement at the time of distribution; provided that while this clause allows the Securityholders’ Representative to be paid from the Escrow Fund, this does not relieve the Company Securityholders from their obligation to promptly pay such losses, liabilities or expenses, nor does it prevent the Securityholders Representative from seeking any remedies available to it at Law or otherwiseShares. If the Securityholders’ Representative shall die, be removed, become disabled, resign or otherwise be unable to fulfill its responsibilities hereunder, the Company Securityholders shall (by consent of those persons entitled to at least a majority of the purchase price paid to all Company Securityholders), within 10 days after such death, removal, disability, resignation or inability, appoint a successor to the Securityholders’ Representative Representative, and shall immediately thereafter notify Purchaser Acquiror of the identity of such successor. Any such successor shall succeed the former Securityholders’ Representative as the Securityholders’ Representative hereunder. If If, for any reason reason, there is no Securityholders’ Representative at any time, all references herein in this Agreement to the Securityholders’ Representative shall be deemed to refer to the Company Escrow Participants. No bond shall be required of the Securityholders’ Representative. Each Company Securityholder hereby agrees to receive correspondence from A decision, act, consent or instruction of the Securityholders’ Representative, including an amendment, extension or waiver of this Agreement pursuant to its authority hereunder, shall constitute a decision of the Company Securityholders and shall be final, binding and conclusive upon the Company Securityholders.
(b) By executing this Agreement under the heading “Securityholders’ Representative,” Josh Held hereby (i) accepts his appointment and authorization to act as Securityholders’ Representative as attorney-in-fact and agent on behalf of the Company Securityholders in electronic form;accordance with the terms of this Agreement, and (ii) agrees to perform his obligations under, and otherwise comply with, this Section 10.10.
(c) The Securityholders’ Representative shall not be liable to any Company Securityholder for any act done or omitted hereunder as the Securityholders’ Representative without gross negligence or willful misconduct or bad faith (and any act done or omitted pursuant to the bona fide good faith advice of counsel, accountants and other professionals and experts retained by the Securityholders’ Representative shall be conclusive evidence of good faith). To the fullest extent permitted by applicable Legal Requirements, the Company Securityholders shall severally indemnify the Securityholders’ Representative and hold it harmless against any loss, Liability or expense incurred without gross negligence, willful misconduct or bad faith on the part of the Securityholders’ Representative and arising out of or in connection with the acceptance or administration of its duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Securityholders’ Representative. If not paid directly to the Securityholders’ Representative by the Company Securityholders, such losses, Liabilities or expenses may be recovered by the Securityholders’ Representative from the Escrow Shares otherwise distributable to the Escrow Participants (and not distributed or distributable to an Indemnified Person or subject to a pending indemnification claim of an Indemnified Person) after the General Indemnity Termination Date, pursuant to the terms hereof and of the Escrow Agreement, at the time of distribution, and such recovery will be made from the Escrow Participants according to their respective Pro Rata Portion. The Securityholders’ Representative shall only have the duties expressly stated in this Agreement and shall have no other duty, express or implied. The Securityholders’ 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 Securityholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith. No provision of this Agreement or the Escrow Agreement shall require the Securityholders’ Representative 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 under this Agreement.
(d) All of the immunities and powers granted to the Securityholders’ Representative under this Agreement shall survive the Closing and/or any termination of this Agreement and the Escrow Agreement. The grant of authority provided for in this Section 10.10: (i) is coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Company Securityholders and shall be binding on any successor thereto and (ii) shall survive the delivery of an assignment by any Escrow Participant of the whole or any fraction of his, her or its interest in the Escrow Shares.
(e) The Company shall deliver to the Securityholders’ Representative a copy of the following documents: (i) the Spreadsheet, (ii) the Closing Expenses Certificate, and (iii) the Company Indebtedness Certificate.
Appears in 1 contract
Samples: Merger Agreement (Cure Pharmaceutical Holding Corp.)
Securityholders’ Representative. (a) Each Escrow Participant by participating virtue of the approval and adoption of this Agreement or other appointment authorization documentation (other than such Company Stockholders, if any, who have perfected appraisal rights under Delaware Law) or by accepting any consideration payable hereunder shall be deemed to have agreed to appoint Telegraph Hill Partners Management Company LLC as its agent and attorney-in-fact (the “Securityholders’ Representative ”) for and on behalf of the Escrow Participants to act for the Escrow Participants with regard to matters pertaining to Sections 2.6, 2.7, 6.8, 7.3, Article IX and Article X, give and receive notices and communications, authorizes payment to any Indemnified Person from the Indemnity Escrow Amount in satisfaction of claims by any Indemnified Person, object to such payments, agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Indemnified Person against any Escrow Participant or by any Escrow Participant against any Indemnified Person or any dispute between any Indemnified Person and any such Escrow Participant, in each case relating to this Agreement or the transactions contemplated hereby and receiving to take all other actions that are either (i) necessary or appropriate in the benefits thereof, including the right to receive the consideration payable in connection with such transactions, each Company Securityholder shall be deemed to have approved the designation of, and hereby designates, Shareholder Representative Services LLC (the “Securityholders’ Representative”) as the Company Securityholders’ representative and as their duly authorised agent, attorney and representative for the purposes judgment of dealing with the Purchaser under this Agreement, the Subscription Share Transfer Agreements, the Warrant Surrender Agreements, the Option Surrender Agreements and the Escrow Agreement and any communication to or from the Securityholders’ Representative under such agreements shall be deemed to be communication to or from all Company Securityholders. The Securityholders’ Representative shall be for the only person entitled (on behalf accomplishment of the Company Securityholdersforegoing or (ii) to enforce rights, provide communications, make elections specifically mandated by the terms of this Agreement or provide consents under this Agreement, the Subscription Share Transfer Agreements, the Warrant Surrender Agreements, the Option Surrender Agreements and the Escrow Agreement (and in doing any of the forgoing it shall be doing so on behalf of all the Company Securityholders) and the Purchaser shall be entitled Agreement. Each Escrow Participant agrees to rely solely on such Securityholders’ Representative’s action or inaction in dealing with the Company Securityholders, notwithstanding any other communication whether in writing or otherwise, receive correspondence from any of the Company Securityholders. The Securityholders’ Representative is hereby further authorized to execute and deliver the Escrow Agreement as agent for the Company Securityholders and to exercise the Company Securityholders’ rights thereunder. The Securityholders’ Representative shall not be liable in any manner or for any reason to any Company Securityholders in respect of the decisions, determinations or agreements made or consented to by the Securityholders’ Representative, or for any acts done or not done including in electronic form. Such agency may be changed by the Securityholders’ Representative, under or in connection Escrow Participants with this Agreement, except the right to the extent that the Securityholders’ Representative was grossly negligent or engaged in wilful misconduct with respect to such decision, determination, agreement or act done or not done by the Securityholders’ Representative in connection with this Agreement. The Company Securityholders shall indemnify, defend and hold harmless the Securityholders’ 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) (together, “Securityholders’ Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Securityholders’ Representative pursuant to the terms of this Agreement and the Escrow Agreement provided that, in the event that any such Securityholders’ Representative Losses or any portion thereof is finally adjudicated to have been primarily caused by the gross negligence or wilful misconduct majority of the Securityholders’ Representative or any of its successors or assignsIndemnity Escrow Amount from time to time. Notwithstanding the foregoing, the Securityholders’ Representative will reimburse may resign at any time by providing written notice of intent to resign to the Company Securityholders Escrow Participants, which resignation shall be effective upon the amount earlier of (A) thirty (30) calendar days following delivery of such Securityholders’ Representative Losses attributable to such gross negligence written notice or wilful misconduct. If not paid directly to (B) the Securityholders’ Representative appointment of a successor by the Company Securityholders, any such losses, liabilities or expenses may be recovered by the Securityholders’ Representative from the Escrow Expenses Amount and from the funds holders of a majority in the Escrow Fund otherwise distributable to Company Securityholders following the termination interest of the Indemnity Escrow Period pursuant to the terms hereof and the Escrow Agreement at the time of distribution; provided that while this clause allows the Securityholders’ Representative to be paid from the Escrow Fund, this does not relieve the Company Securityholders from their obligation to promptly pay such losses, liabilities or expenses, nor does it prevent the Securityholders Representative from seeking any remedies available to it at Law or otherwiseAmount. If the Securityholders’ Representative shall die, be removed, become disabled, resign or otherwise be unable to fulfill its responsibilities hereunder, the Company Securityholders Escrow Participants shall (by consent of those persons entitled to at least a majority of the purchase price paid to all Company Securityholders), within 10 days after such death, removal, disability, resignation or inability, appoint a successor to the Securityholders’ Representative Representative, and shall immediately thereafter notify Purchaser Acquiror of the identity of such successor. Any such successor shall succeed the former Securityholders’ Representative as the Securityholders’ Representative hereunder. If for any reason there is no Securityholders’ Representative at any time, all references herein in this Agreement to the Securityholders’ Representative shall be deemed to refer to the Company Escrow Participants. No bond shall be required of the Securityholders’ Representative. Each Company Securityholder hereby agrees to receive correspondence from A decision, act, consent or instruction of the Securityholders’ Representative, including an amendment, extension or waiver of this Agreement pursuant to its authority hereunder, shall constitute a decision of the Escrow Participants and shall be final, binding and conclusive upon the Escrow Participants.
(b) By executing this Agreement under the heading “Securityholders’ Representative,” Telegraph Hill Partners Management Company LLC hereby (i) accepts its appointment and authorization to act as Securityholders’ Representative as attorney-in-fact and agent on behalf of the Escrow Participants in electronic form;accordance with the terms of this Agreement, and (ii) agrees to perform its obligations under, and otherwise comply with, this Section 10.10.
(c) The Securityholders’ Representative shall not be liable to any former Escrow Participant for any act done or omitted hereunder as the Securityholders’ Representative without gross negligence, willful misconduct or bad faith (and any act done or omitted pursuant to the bona fide good faith advice of counsel, accountants and other professionals and experts retained by the Securityholders’ Representative shall be conclusive evidence of good faith). To the fullest extent permitted by applicable Legal Requirements, the Escrow Participants shall severally indemnify the Securityholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence, willful misconduct or bad faith on the part of the Securityholders’ Representative and arising out of or in connection with the acceptance or administration of its duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Securityholders’ Representative. If not paid directly to the Securityholders’ Representative by the Escrow Participants, such losses, liabilities or expenses may be recovered by the Securityholders’ Representative from the Reserve Account (as defined below) and the Escrow Account otherwise distributable to the Escrow Participants (and not distributed or distributable to an Indemnified Person or subject to a pending indemnification claim of an Indemnified Person) after the Indemnity Termination Date, pursuant to the terms hereof and of the Escrow Agreement, at the time of distribution, and such recovery will be made from the Escrow Participants according to their respective Escrow Participant Pro Rata Share. The Securityholders’ Representative shall only have the duties expressly stated in this Agreement and shall have no other duty, express or implied. The Securityholders’ Representative shall establish an account to hold a reserve not to exceed $200,000 (such account, the “Reserve Account” and such amount held, the “Reserve Amount”) from the Merger Consideration with respect to the Escrow Participants based upon their Escrow Participant Pro Rata Share to fund potential expenses of the Securityholders’ Representative in carrying out its authorized duties. The Securityholders’ Representative may engage attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as the Securityholders’ Representative may deem necessary or desirable and incur other out-of-pocket expenses related to performing its services hereunder and paid out of the Reserve Account. The Securityholders’ 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 Securityholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith. On the Indemnity Termination Date or, if later, the date of resolution of any claim outstanding pursuant to a Claim Notice delivered prior to such date, the Securityholders’ Representative shall release all remaining funds held in the Reserve Account (and not distributed or distributable to the Securityholders’ Representative in accordance with this Section 10.10) to the Escrow Participants. No provision of this Agreement or the Escrow Agreement shall require the Securityholders’ Representative 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 under this Agreement or the Escrow Agreement.
(d) All of the immunities and powers granted to the Securityholders’ Representative under this Agreement shall survive the Closing and/or any termination of this Agreement and the Escrow Agreement. The grant of authority provided for in this Section 10.10: (i) is coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Escrow Participant and shall be binding on any successor thereto and (ii) shall survive the delivery of an assignment by any Escrow Participants of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount and the Indemnity Escrow Amount.
(e) The Company shall deliver to the Securityholders’ Representative a copy of the following documents: (i) the Estimated Net Working Capital statement, (ii) the calculation of the Merger Consideration, (iii) the Spreadsheet, (iv) the Closing Expenses Certificate, (v) the Company Indebtedness Certificate and (vi) the Estimated Balance Sheet.
Appears in 1 contract
Securityholders’ Representative. by By voting in favor of the adoption of this Agreement, the approval of the Merger and the consummation of the Merger, or participating in the transactions contemplated hereby Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with such transactionsthe Merger, each Company Securityholder Indemnifying Person shall be deemed to have approved the designation of, and hereby designatesdesignates as of the date hereof, Shareholder Representative Services LLC (the “Securityholders’ Representative”) Xx. Xxxx as the Company Securityholders’ representative agent and attorney in fact of such Indemnifying Person and as their duly authorised agent, attorney and representative for the purposes of dealing with the Purchaser under this Agreement, the Subscription Share Transfer Agreements, the Warrant Surrender Agreements, the Option Surrender Agreements and the Escrow Agreement and any communication to or from the Securityholders’ Representative under such agreements shall be deemed to be communication to or from all Company Securityholders. The Securityholders’ Representative shall be the only person entitled (for and on behalf of the Company Securityholders) such Indemnifying Person to enforce rights, provide communications, make elections or provide consents under this Agreement, the Subscription Share Transfer Agreements, the Warrant Surrender Agreements, the Option Surrender Agreements give and the Escrow Agreement (receive notices and in doing any of the forgoing it shall be doing so on behalf of all the Company Securityholders) and the Purchaser shall be entitled to rely solely on such Securityholders’ Representative’s action or inaction in dealing with the Company Securityholders, notwithstanding any other communication whether in writing or otherwise, from any of the Company Securityholders. The Securityholders’ Representative is hereby further authorized to execute and deliver the Escrow Agreement as agent for the Company Securityholders and to exercise the Company Securityholders’ rights thereunder. The Securityholders’ Representative shall not be liable in any manner or for any reason to any Company Securityholders in respect of the decisions, determinations or agreements made or consented to by the Securityholders’ Representative, or for any acts done or not done by the Securityholders’ Representative, under or communications in connection with this AgreementAgreement and related matters, except to the extent that the Securityholders’ Representative was grossly negligent or engaged in wilful misconduct with respect to such decision, determination, agreement or act done or not done by the Securityholders’ Representative including in connection with this Agreement. The Company Securityholders shall indemnifyclaims for indemnification under Article XI, defend and hold harmless for all other purposes hereunder, including to give and receive notices and communications; to authorize delivery to Parent of the Securityholders’ Representative applicable portion of the Escrow Fund in satisfaction of claims for indemnification by Parent; to object to such deliveries; to agree to, negotiate, enter into settlements and its successors compromises of, and assigns from demand arbitration and against any comply with orders of courts and all awards of arbitrators with respect to, such claims; to agree to, demandsnegotiate, suits, actions, causes of action, losses, damages, obligations, liabilities, costs enter into and expenses (including attorneys’ fees provide amendments and court costs) (together, “Securityholders’ Representative Losses”) arising as a result of or incurred supplements to and waivers in connection with any actions taken or omitted to be taken by the Securityholders’ Representative pursuant to the terms respect of this Agreement and the Escrow Agreement provided that, Agreement; and to take all actions necessary or appropriate in the event that any such Securityholders’ Representative Losses or any portion thereof is finally adjudicated to have been primarily caused by the gross negligence or wilful misconduct judgment of the Securityholders’ Representative for the accomplishment of any or any all of its successors or assigns, the foregoing; and Xx. Xxxx hereby accepts such designation. No bond shall be required of the Securityholders’ Representative will reimburse the Company Securityholders the amount of such Securityholders’ Representative Losses attributable to such gross negligence or wilful misconduct. If not paid directly to the Securityholders’ Representative by the Company SecurityholdersRepresentative, any such losses, liabilities or expenses may be recovered by the Securityholders’ Representative from the Escrow Expenses Amount and from the funds in the Escrow Fund otherwise distributable to Company Securityholders following the termination of the Escrow Period pursuant to the terms hereof and the Escrow Agreement at the time of distribution; provided that while this clause allows the Securityholders’ Representative to be paid from the Escrow Fund, this does not relieve the Company Securityholders from their obligation to promptly pay such losses, liabilities or expenses, nor does it prevent the Securityholders Representative from seeking any remedies available to it at Law or otherwise. If the Securityholders’ Representative shall die, be removed, become disabled, resign or otherwise be unable to fulfill its responsibilities hereunder, the Company Securityholders shall (by consent of those persons entitled to at least a majority of the purchase price paid to all Company Securityholders), within 10 days after such death, removal, disability, resignation or inability, appoint a successor to the receive no compensation for his services. The Securityholders’ Representative and immediately thereafter notify Purchaser of the identity of such successormay resign at any time. Any such successor shall succeed the former A new Securityholders’ Representative as may be appointed at any time by Xx. Xxxx, such appointment to become effective upon the written acceptance thereof by the new Securityholders’ Representative hereunderRepresentative. If for Written notice of any reason there is no Securityholders’ Representative at any time, all references herein to resignation or appointment of the Securityholders’ Representative shall be deemed to refer to the Company Securityholders. Each Company Securityholder hereby agrees to receive correspondence from delivered by the Securityholders’ Representative, including in electronic form;Representative to Parent promptly after such action is taken.
Appears in 1 contract
Samples: Merger Agreement (Par Pharmaceutical Companies, Inc.)
Securityholders’ Representative. by participating (a) Prior to entry into this Agreement, the Company and the Unitholders (other than the Blocker Members) shall appoint Chilly Water, LLC to act as the representative for the benefit of each Unitholder (other than the Blocker Members) as the exclusive agent and attorney-in-fact to act on behalf of each Unitholder (other than the Blocker Members), in connection with the transactions contemplated hereby hereby.
(b) The Securityholders’ Representative shall have the authority to act for and receiving on behalf of the benefits thereofUnitholders (other than the Blocker Members), including including, without limitation, (i) to give and receive notices and communications, (ii) to act on behalf of such Persons with respect to the right Adjustment Escrow Account, the PPP Escrow Account, the Earn-Out Payments and any other matters arising under this Agreement or the other Transaction documents, (iii) to receive authorize delivery to Parent and Merger Sub of any funds and property in its possession or in the consideration payable possession of the Adjustment Escrow Agent or PPP Escrow Agent in satisfaction of claims by Parent and Merger Sub, (iv) to object to such deliveries, (v) to agree to, negotiate, enter into settlements and compromises of, and commence, prosecute, participate in, settle, dismiss or otherwise terminate, as applicable, lawsuits and claims, mediation and arbitration proceedings, and to comply with orders of courts and awards of courts, mediators and arbitrators with respect to such suits, claims or proceedings, (vi) subject to the restrictions in Section 6.11(f), to use the Securityholders’ Representative Expense Amount to satisfy costs, expenses and/or Liabilities of the Securityholders’ Representative or the Unitholders (other than the Blocker Members) in connection with matters related to this Agreement and/or the Transaction documents and satisfy a portion of the Downward Adjustment Amount in accordance with Section 2.13(a)(i), with any balance of the Securityholders’ Representative Expense Amount not used for such transactionspurposes to be disbursed and paid to the Unitholders (other than the Blocker Members) in accordance with the Payment Schedule at such time as the Securityholders’ Representative determines in its sole discretion that no additional such costs, each Company Securityholder expenses and/or Liabilities shall become due and payable, (vii) appoint the Paying Agent and enter into the Paying Agent Agreement and (viii) to take all actions necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing. The Securityholders’ Representative shall for all purposes be deemed to have approved the designation ofsole authorized agent of the Unitholders (other than the Blocker Members) from and after Closing until such time as the agency is terminated. Any successor in the position of Securityholders’ Representative may be filled by Securityholders’ Representative, and hereby designates, Shareholder Representative Services LLC (any such replacement shall acknowledge and agree to be treated the “Securityholders’ Representative”) as the Company Securityholders’ representative and as their duly authorised agent, attorney and representative ” for the purposes of dealing with the Purchaser under this Agreement, the Subscription Share Transfer Agreements, the Warrant Surrender Agreements, the Option Surrender Agreements and the Escrow Agreement and any communication other Transaction Document. Notices or communications to or from the Securityholders’ Representative under such agreements shall be deemed to be communication constitute notice to or from each of the Unitholder (other than the Blocker Members) during the term of the agency. The Securityholders’ Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no other covenants or obligations shall be implied under this Agreement against the Securityholders’ Representative; provided, however, that the foregoing shall not act as a limitation on the powers of the Securityholders’ Representative determined by it to be reasonably necessary to carry out the purposes of its obligations.
(c) The Securityholders’ Representative shall have reasonable access to information about the Company, Blocker, Parent, Merger Sub and the Surviving Entity necessary or appropriate for it to fulfill its obligations under this Agreement and the reasonable assistance of the Surviving Entity’s, Blocker’s and Parent’s officers and employees for purposes of performing its duties and exercising its rights hereunder, provided that the Securityholders’ Representative shall treat confidentially and not disclose any nonpublic information from or about the Surviving Entity, Blocker or Parent to anyone (except on a need to know basis to agents or representatives of Securityholders’ Representative who first agree to treat such information confidentially) other than in connection with the enforcement of any rights hereunder or any other proceeding brought in connection herewith.
(d) A decision, act, consent or instruction of the Securityholders’ Representative shall constitute a decision, act, consent or instruction of all Company of the Unitholders (other than the Blocker Members) and shall be final, binding and conclusive upon each such Person. Parent may rely upon any such decision, act, consent or instruction of the Securityholders’ Representative as being the decision, act, consent or instruction of every such Unitholder (other than the Blocker Members) and shall have no Liability to any such Person for any actions taken in reliance upon any such decision, act, consent or instruction of the Securityholders’ Representative.
(e) The Securityholders’ Representative will not be liable for any act taken or omitted to be taken as Securityholders’ Representative while acting in good faith, and any act taken or omitted to be taken pursuant to the reasonable advice of counsel will be conclusive evidence of such good faith. The Securityholders’ Representative shall be entitled to rely, and shall be fully protected in relying, upon any statements furnished to it by the only person entitled (on behalf of Surviving Entity, Parent, Merger Sub and any third party or any other evidence deemed by the Company Securityholders) ’ Representative to enforce rightsbe reliable, provide communications, make elections or provide consents under this Agreement, the Subscription Share Transfer Agreements, the Warrant Surrender Agreements, the Option Surrender Agreements and the Escrow Agreement (and in doing any of the forgoing it shall be doing so on behalf of all the Company Securityholders) and the Purchaser ’ Representative shall be entitled to rely solely act on such Securityholders’ Representative’s action or inaction in dealing with the Company Securityholders, notwithstanding any other communication whether in writing or otherwise, from any advice of the Company Securityholders. The Securityholders’ Representative is hereby further authorized to execute and deliver the Escrow Agreement as agent for the Company Securityholders and to exercise the Company Securityholders’ rights thereundercounsel selected by it. The Securityholders’ Representative shall not be liable fully justified in failing or refusing to take any manner action under this Agreement or for any reason related document or agreement if it shall have received such advice or concurrence as it deems appropriate with respect to any Company Securityholders in respect of the decisions, determinations or agreements made or consented to by the Securityholders’ Representativesuch inaction, or for if it shall not have been expressly indemnified to its satisfaction against any acts done or not done by the Securityholders’ Representative, under or in connection with this Agreement, except to the extent and all Liability and expense that the Securityholders’ Representative was grossly negligent may incur by reason of taking or engaged in wilful misconduct with respect continuing to take any such decisionaction.
(f) Notwithstanding anything contained herein to the contrary, determination, agreement or act done or not done by the Securityholders’ Representative in connection with this Agreement. The Company Securityholders shall indemnifycovenants and agrees that, defend and hold harmless prior to the payment of any amounts required to be paid pursuant to Section 2.13(a)(i) from the Securityholders’ Representative and its successors and assigns from and against any and all claimsExpense Amount, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs and expenses (including attorneys’ fees and court costs) (together, “Securityholders’ Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Securityholders’ Representative pursuant to the terms of this Agreement and the Escrow Agreement provided that, in the event that any such Securityholders’ Representative Losses or shall not use any portion thereof is finally adjudicated to have been primarily caused by the gross negligence or wilful misconduct of the Securityholders’ Representative Expense Amount to pay costs, fees or expenses or otherwise distribute any portion of the Securityholders’ Representative Expense Amount to any Person (other than the Unitholders (other than the Blocker Members)) other than those costs, fees and expenses reasonably incurred in connection with the Securityholders’ Representative discharging its successors or assignsduties hereunder.
(g) Notwithstanding anything contained herein to the contrary, the Securityholders’ Representative will reimburse shall not have the Company Securityholders authority to act for and on behalf of the amount Blocker Members, and all decisions, acts, consents or instructions required by any of such Securityholders’ Representative Losses attributable to such gross negligence the Blocker Members or wilful misconduct. If not paid directly to the Securityholders’ Representative Blocker Partners herein shall be made by the Company Securityholders, any such losses, liabilities or expenses may be recovered by the Securityholders’ Representative from the Escrow Expenses Amount and from the funds in the Escrow Fund otherwise distributable to Company Securityholders following the termination of the Escrow Period pursuant to the terms hereof and the Escrow Agreement at the time of distribution; provided that while this clause allows the Securityholders’ Representative to be paid from the Escrow Fund, this does not relieve the Company Securityholders from their obligation to promptly pay such losses, liabilities or expenses, nor does it prevent the Securityholders Representative from seeking any remedies available to it at Law or otherwise. If the Securityholders’ Representative shall die, be removed, become disabled, resign or otherwise be unable to fulfill its responsibilities hereunder, the Company Securityholders shall (by consent of those persons entitled to at least a majority of the purchase price paid to all Company Securityholders), within 10 days after such death, removal, disability, resignation or inability, appoint a successor to the Securityholders’ Representative and immediately thereafter notify Purchaser of the identity of such successor. Any such successor shall succeed the former Securityholders’ Representative as the Securityholders’ Representative hereunder. If for any reason there is no Securityholders’ Representative at any time, all references herein to the Securityholders’ Representative shall be deemed to refer to the Company Securityholders. Each Company Securityholder hereby agrees to receive correspondence from the Securityholders’ Representative, including in electronic form;Blocker Seller.
Appears in 1 contract
Samples: Merger Agreement (Aphria Inc.)
