Securityholders’ Representative. (a) Shareholder Representative Services LLC is hereby constituted and appointed as agent and attorney in fact for and on behalf of each of the Securityholders (the “Securityholders’ Representative”). Without limiting the generality of the foregoing, the Securityholders’ Representative has full power and authority, on behalf of each Securityholder and his or her successors and assigns, to (i) interpret the terms and provisions of this Agreement; (ii) execute and deliver all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement, including the Escrow Agreement; (iii) receive service of process in connection with any claims under this Agreement; (iv) agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing; (v) give and receive notices and communications; (vi) engage counsel, and such accountants and other advisors or experts for the Securityholders and incur such other expenses on behalf of the Securityholders in connection with this Agreement and the transactions contemplated hereby as the Securityholders’ Representative may deem appropriate; and (vii) take all actions necessary or appropriate in the judgment of Securityholders’ Representative on behalf of the Securityholders in connection with this Agreement. (b) If a Person serving as the Securityholders’ Representative resigns or for any other reason ceases to serve in such capacity, then by written notice to Parent, signed by Securityholders holding (or who held immediately prior to the Effective Time) a majority of the shares of Company Stock determined in a fully diluted basis, a successor Securityholders’ Representative named in such notice will be substituted for the Person who ceased to serve. (c) By voting in favor of the adoption of this Agreement, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Securityholder grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the specific and limited matters described above, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that the Securityholders’ Representative may lawfully do or cause to be done by virtue hereof. Each Securityholder further acknowledges and agrees that, upon execution of this Agreement, with respect to any delivery by the Securityholders’ Representative of any documents executed by the Securityholders’ Representative pursuant to this Section 10.1, such Securityholder shall be bound by such documents as fully as if such Securityholder had executed and delivered such documents. No bond shall be required of the Securityholders’ Representative, and the Securityholders’ Representative shall receive no compensation for its services other than pursuant to the terms of that certain Securityholders’ Representative Agreement, dated on or about the date hereof, by and among the Securityholders’ Representative, the Company and certain of the Securityholders (the “Securityholders’ Representative Agreement”). Each Securityholder hereby agrees to receive correspondence from the Securityholders’ Representative, including in electronic form. (d) Each Securityholder acknowledges and agrees that the Securityholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Securityholders’ Representative deems appropriate in the Securityholders’ Representative’s sole discretion. No Person serving as the Securityholders’ Representative shall have any liability to any Person in connection with any act or omission as the Securityholders’ Representative, except for such Person’s willful misconduct or gross negligence. The Securityholders’ Representative shall not have any implied duties or obligations. The Securityholders’ Representative may rely upon any instrument which the Securityholders’ Representative in good faith believes to be genuine. The Securityholders’ Representative may consult legal counsel selected by it in the event of any dispute or question relating to this Agreement or any of the transactions or documents contemplated in connection with this Agreement, or in connection with the conduct of the Securityholders’ Representative’s duties. Each Securityholder further agrees to indemnify and hold the Securityholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Securityholders’ Representative, in each case as such loss, liability or expense is incurred or suffered; provided that in the event it is finally adjudicated that any such loss, liability or expense was primarily caused by the Securityholders’ Representative’s gross negligence or willful misconduct, the Securityholders’ Representative will reimburse the Securityholders the amount of such indemnified loss, liability or expense attributable to such gross negligence or willful misconduct. If not paid directly to the Securityholders’ Representative by the Securityholders, any such losses, liabilities or expenses may be recovered by the Securityholders’ Representative from (i) the funds in the Expense Fund and (ii) if the Expense Fund is depleted, the amounts in the Escrow Account otherwise distributable to the Securityholders pursuant to the terms hereof and the Escrow Agreement at the time of distribution in accordance with written instructions delivered by the Securityholders’ Representative to the Escrow Agent; provided that while this section allows the Securityholders’ Representative to be paid from the Expense Fund and/or the Escrow Account, this does not relieve the Securityholders from their obligation to promptly pay such losses, liabilities and expenses as they are suffered or incurred, nor does it prevent the Securityholders’ Representative from seeking any remedies available to it at law or otherwise. (e) A decision, act, consent or instruction of the Securityholders’ Representative shall constitute a decision of all Securityholders and shall be final, binding and conclusive upon each such Securityholder, Parent, Merger Sub and Company and their respective Affiliates may rely upon any decision, act, consent or instruction of the Securityholders’ Representative as being the decision, act, consent or instruction of each and every Securityholder. Each of Parent, Merger Sub, Company and their respective Affiliates is hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of Securityholders’ Representative. In furtherance of the foregoing, any reference to a power of Securityholders under this Agreement, to be exercised or otherwise taken, shall be a power vested in the Securityholders’ Representative. (f) The Expense Amount shall be held by the Securityholders’ Representative in a segregated client bank account (the “Expense Fund”) and shall be used solely for the purposes of paying directly or reimbursing the Securityholders’ Representative for any third party expenses or other expenses or obligations incurred by or that are the responsibility of the Securityholders’ Representative pursuant to this Agreement, the Escrow Agreement or the Securityholders’ Representative Agreement. The Securityholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The Securityholders shall not receive interest or other earnings on the Expense Fund and the Securityholders irrevocably transfer and assign to the Securityholders’ Representative any ownership right that they may have in any interest that may accrue on funds held in the Expense Fund. The Securityholders acknowledge that the Securityholders’ Representative is not providing any investment supervision, recommendations or advice. The Securityholders’ Representative shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. As soon as practicable following the expiration of the Escrow Period and the resolution in full of all pending claims against the Escrow Account, if any, under the terms set forth herein, the Securityholders’ Representative shall disburse the balance of the Expense Fund to the Escrow Agent to be disbursed to the Securityholders in accordance with the Escrow Agreement. For tax purposes, the Expense Fund shall be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Securityholders’ Representative. (a) Shareholder Representative Services LLC is hereby constituted Carl Goldfischer shall be the Company Indemnifying Parties' and appointed the Coxxxxx Xxxxxxxxxxd Parties' representative (the "Securityholders' Representative") and, as such, shall serve as and have all powers as agent and attorney in attorney-in-fact of each Company Indemnifying Party or Company Indemnified Party, as the case may be, for and on behalf of each of Company Indemnifying Party or Company Indemnified Party, as the Securityholders (the “Securityholders’ Representative”). Without limiting the generality of the foregoing, the Securityholders’ Representative has full power and authority, on behalf of each Securityholder and his or her successors and assigns, to case may be: (i) interpret to give and receive notices and communications with respect to any matters related to this Agreement for which the terms and provisions of this AgreementSecurityholders' Representative is authorized to act; (ii) execute and deliver all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with authorize delivery of cash from the consummation of the transactions contemplated by this Agreement, including the Indemnification Escrow AgreementFund to a Parent Indemnified Party; (iii) receive service of process in connection with any claims under this Agreement; (iv) agree to, to negotiate, enter into settlements and compromises of, and demand mediation and arbitration and comply with orders of courts and awards of arbitrators with respect to such claimsany claim for indemnification pursuant to this Article 8; (iv) to litigate, mediate, arbitrate, defend, enforce or take any other actions and execute the Indemnification Escrow Agreement and any other documents that the Securityholders' Representative deems advisable in connection with enforcing any rights or obligations or defending any claim or action under this Agreement on behalf of the Company Indemnifying Parties and the Company Indemnified Parties; (v) to sign receipts, consents or other documents in connection with the Securityholders' Representative's duties hereunder; and (vi) to take any and all actions necessary or appropriate in the judgment of the Securityholders’ ' Representative for the accomplishment of the foregoing; (v) give and receive notices and communications; (vi) engage counsel, and such accountants and other advisors or experts for the Securityholders and incur such other expenses on behalf of the Securityholders in connection with this Agreement and the transactions contemplated hereby . If Carl Goldfischer ceases to act as the Securityholders’ ' Representative may deem appropriate; and (vii) take all actions necessary or appropriate in the judgment of Securityholders’ Representative on behalf of the Securityholders in connection with this Agreement.
(b) If a Person serving xxx xxx xxxxxx, Steven A. Elms shall be appointed as the Securityholders’ Representative resigns or for any other reason ' Representatixx. Xx Xxxxxx A. Elms ceases to serve in act as the Securityholders' Representative fox xxx xxxxxx, such capacitySecurityholders' Representative or his agent shall notify Parent of such Securityholders' Representative's intent to resign as Securityholders' Representative, then and the Securityholders entitled to receive a majority of the Total Merger Consideration (determined as of the date hereof) (a "Majority") shall, by written notice to Parent, signed appoint a successor Securityholders' Representative within thirty (30) calendar days. Notice or communications to or from the Securityholders' Representative shall constitute notice to or from the Company Indemnifying Parties and the Company Indemnified Parties. All actions to be taken by Securityholders holding a Company Indemnified Party or Company Indemnifying Party, as the case may be, shall be taken solely by the Securityholders' Representative.
(b) Subject to Section 8.6(a), in the event of (i) the death or who held immediately prior to the Effective Time) a majority permanent disability of the shares Securityholders' Representative, (ii) the Securityholders' Representative's resignation as a Securityholders' Representative, or (iii) the removal of Company Stock determined in the Securityholders' Representative by a fully diluted basisMajority, a successor Securityholders’ ' Representative named in such notice will shall be substituted for elected by a Majority. Each successor Securityholders' Representative shall have all of the Person who ceased power, authority, rights and privileges conferred by this Agreement upon the original Securityholders' Representative, and the term "Securityholders' Representative" as used herein shall be deemed to serveinclude any successor Securityholders' Representative.
(c) By voting in favor of In the adoption of this Agreement, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Securityholder grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the specific and limited matters described above, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that the Securityholders’ Representative may lawfully do or cause to be done by virtue hereof. Each Securityholder further acknowledges and agrees that, upon execution of this Agreement, event information with respect to any delivery by a Company Indemnifying Party set forth in Exhibit B to the Indemnification Escrow Agreement becomes outdated or inaccurate, such Company Indemnifying Party shall promptly notify the Securityholders’ ' Representative of any documents executed by such inaccuracy and provide the appropriate updated and accurate information to the Securityholders’ Representative pursuant to this Section 10.1, such Securityholder shall be bound by such documents as fully as if such Securityholder had executed and delivered such documents. No bond shall be required of the Securityholders’ ' Representative, and the Securityholders’ Representative shall receive no compensation for its services other than pursuant to the terms of that certain Securityholders’ Representative Agreement, dated on or about the date hereof, by and among the Securityholders’ Representative, the Company and certain of the Securityholders (the “Securityholders’ Representative Agreement”). Each Securityholder hereby agrees to receive correspondence from the Securityholders’ Representative, including in electronic form.
(d) Each Securityholder acknowledges The Securityholders' Representative may, in all questions arising under this Agreement, rely on the advice of counsel, and agrees that the Securityholders’ Representative shall not be obligated liable to take any actions and shall be entitled to take such actions Company Indemnifying Party or Company Indemnified Party for any action taken or not taken as the a Securityholders’ ' Representative deems appropriate in the absence of such Securityholders’ ' Representative’s sole discretion. No Person serving as the Securityholders’ Representative shall have any liability to any Person in connection with any act or omission as the Securityholders’ Representative, except for such Person’s 's willful misconduct or gross negligence. The Securityholders’ Representative shall not have any implied duties or obligations. The Securityholders’ Representative may rely upon any instrument which the Securityholders’ Representative in good faith believes to be genuine. The Securityholders’ Representative may consult legal counsel selected by it in the event of any dispute or question relating to this Agreement or any of the transactions or documents contemplated in connection with this Agreement, or in connection with the conduct of the Securityholders’ Representative’s duties. Each Securityholder further agrees to indemnify and hold the Securityholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Securityholders’ Representative, in each case as such loss, liability or expense is incurred or suffered; provided that in the event it is finally adjudicated that any such loss, liability or expense was primarily caused by the Securityholders’ Representative’s gross negligence or willful misconduct, the Securityholders’ Representative will reimburse the Securityholders the amount of such indemnified loss, liability or expense attributable to such gross negligence or willful misconduct. If not paid directly to the Securityholders’ Representative by the Securityholders, any such losses, liabilities or expenses may be recovered by the Securityholders’ Representative from (i) the funds in the Expense Fund and (ii) if the Expense Fund is depleted, the amounts in the Escrow Account otherwise distributable to the Securityholders pursuant to the terms hereof and the Escrow Agreement at the time of distribution in accordance with written instructions delivered by the Securityholders’ Representative to the Escrow Agent; provided that while this section allows the Securityholders’ Representative to be paid from the Expense Fund and/or the Escrow Account, this does not relieve the Securityholders from their obligation to promptly pay such losses, liabilities and expenses as they are suffered or incurred, nor does it prevent the Securityholders’ Representative from seeking any remedies available to it at law or otherwisebad faith.
(e) A decision, act, consent or instruction of the Securityholders’ ' Representative shall constitute a decision of all Securityholders the Company Indemnifying Parties or the Company Indemnified Parties, as the case may be, and shall be final, binding and conclusive upon each such Securityholderthe Company Indemnifying Parties or the Company Indemnified Parties, Parent, Merger Sub as the case may be. The Escrow Agent and Company and their respective Affiliates any Parent Indemnified Party may rely upon any decision, act, consent or instruction of the Securityholders’ ' Representative as being the decision, act, consent or instruction of each and every Securityholderthe Company Indemnifying Parties or the Company Indemnified Parties, as the case may be. Each of ParentAlthough the Securityholders' Representative shall not be obligated to obtain instructions from the Company Indemnifying Parties or the Company Indemnified Parties, Merger Subas the case may be, Company and their respective Affiliates is hereby relieved from any liability prior to any Person for any acts done by them in accordance with such decision, act, consent or instruction of Securityholders’ Representative. In furtherance of instruction, if, and to the foregoingextent that, any reference to a power of Securityholders under this Agreement, to be exercised or otherwise taken, shall be a power vested in the Securityholders’ Representative' Representative receives any written instructions from a Majority, the Securityholders' Representative shall comply with such instructions.
(f) The Expense Amount Company Indemnifying Parties shall be held severally in proportion to their Pro Rata Portion (and not jointly), indemnify and defend the Securityholders' Representative and hold the Securityholders' Representative harmless against any loss, damage, cost, liability or expense incurred without willful misconduct or bad faith by the Securityholders’ ' Representative and arising out of or in connection with the acceptance, performance or administration of the Securityholders' Representative's duties under this Agreement, the Indemnification Escrow Agreement or the Expenses Escrow Agreement, including the reasonable fees and expenses of any legal counsel, accountants, auditors and other advisors retained by the Securityholders' Representative in a segregated client bank account (performing his or her obligations under this Agreement, the “Expense Fund”) Indemnification Escrow Agreement and shall be used solely for the purposes of paying directly or reimbursing the Securityholders’ Representative for any third party expenses or other expenses or Expenses Escrow Agreement and obligations incurred by or that are the responsibility of the Securityholders’ ' Representative in the satisfaction of his duties under this Agreement, the Indemnification Escrow Agreement and Expenses Escrow Agreement. Any out-of-pocket costs and expenses incurred by or reasonably expected to be incurred by the Securityholders' Representative in connection with the acceptance, performance and administration of his or her duties as Securityholders' Representative pursuant to this Agreement, the Indemnification Escrow Agreement and the Expenses Escrow Agreement (including the hiring of legal counsel, accountants or auditors and other advisors pursuant to the terms of this Agreement and any amounts paid by the Securityholders' Representative to indemnify the Escrow Agent pursuant to the Indemnification Escrow Agreement or the Expenses Escrow Agreement), except those costs and expenses which Parent is obligated to pay pursuant to the terms of this Agreement, the Indemnification Escrow Agreement and the Expenses Escrow Agreement ("Securityholders’ Representative Agreement. The ' Representative's Costs"), shall be paid by the Company Indemnifying Parties in accordance with each Company Indemnifying Party's Pro Rata Portion of such Securityholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available ' Representative's Costs as follows: (i) first by recourse to its creditors the Expenses Escrow Amount then held in the event of bankruptcy. The Securityholders shall not receive interest or other earnings on the Expense Expenses Escrow Fund and (ii) if such Expenses Escrow Amount is insufficient to pay for such Securityholders' Representative's Costs, then by recourse directly to each Company Indemnifying Party. Parent and the Securityholders irrevocably transfer Company each acknowledge and assign agree that the Expenses Escrow Amount shall be used to pay such Securityholders' Representative's Costs. Each of the Company Indemnifying Parties, by voting in favor of the Merger, acknowledges and agrees that such Company Indemnifying Party has authorized and approved the use of the Expenses Escrow Amount to pay Securityholders' Representative's Costs and, to the extent that the Expenses Escrow Amount is insufficient to pay for such Securityholders' Representative's Costs, to pay such costs directly or reimburse the Securityholders' Representative for such costs.
(g) The power of attorney granted by the Company Indemnifying Parties and the Company Indemnified Parties to the Securityholders’ ' Representative any ownership right that they may have in any pursuant to this Section 8.6 is coupled with an interest that may accrue on funds held in the Expense Fund. The Securityholders acknowledge that the Securityholders’ Representative and is irrevocable and shall not providing any investment supervision, recommendations terminate or advice. The Securityholders’ Representative shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. As soon as practicable following the expiration of the Escrow Period and the resolution in full of all pending claims against the Escrow Account, if any, under the terms set forth herein, the Securityholders’ Representative shall disburse the balance of the Expense Fund to the Escrow Agent to otherwise be disbursed to the Securityholders in accordance with the Escrow Agreement. For tax purposes, the Expense Fund shall be treated as having been received and voluntarily set aside affected by the Securityholders at the time death, disability, incompetence, bankruptcy or insolvency of Closingany Company Indemnifying Party or Company Indemnified Party.
Appears in 1 contract
Samples: Merger Agreement (Allergan Inc)
Securityholders’ Representative. (a) Shareholder Representative Services LLC is The Selling Securityholders hereby constituted appoint, authorize and empower Xxxx X. Xxxxxx (Xx. Xxxxxx in such capacity and any successor appointed as agent and attorney pursuant to or in fact for and on behalf of each of the Securityholders (accordance with Section 1.10(b), the “Securityholders’ Representative”). Without limiting the generality of the foregoing, the Securityholders’ Representative has full power and authority, ) to act on behalf of each Selling Securityholder and his or her successors and assigns, to (i) interpret the terms and provisions of this Agreement; (ii) execute and deliver all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with with, and to facilitate the consummation of the transactions contemplated by under, this Agreement, including which shall include the power and authority (i) to make all decisions relating to the determination of any adjustments to the Purchase Price, (ii) to take all action necessary in connection with the waiver of any condition to the obligations of the Selling Securityholders to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims for which the Selling Securityholders may be required to indemnify the Buyer pursuant to Article VII hereof, provided, that the settlement affects the Selling Securityholders on a proportionate basis with no individual Selling Securityholder becoming liable for more than his or her Pro Rata Share of any claim, (iii) to give and receive all notices required to be given under this Agreement, copies of which shall be promptly provided to each Selling Securityholder, (iv) to execute and deliver the Escrow Agreement; (iii) receive service of process in connection with any claims under this Agreement; (iv) agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing; (v) give to designate and receive notices determine amounts to be paid and communications; recipients of the Estimated Closing Expenses, (vi) engage counselto make payment of the Representative Expenses, (vii) collect and/or sell any receivable transferred to the Selling Securityholders pursuant to the terms of this Agreement and such accountants and other advisors or experts for to distribute the proceeds thereof to the Selling Securityholders and incur such other expenses (viii) to take any and all additional action as is contemplated to be taken by or on behalf of the Selling Securityholders in connection with this Agreement and by the transactions contemplated hereby as the Securityholders’ Representative may deem appropriate; and (vii) take all actions necessary or appropriate in the judgment terms of Securityholders’ Representative on behalf of the Securityholders in connection with this Agreement.
(b) If a Person serving as In the event that the Securityholders’ Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, (i) Xxxxxxx Xxxxxxx-Abby or for any other reason ceases to serve (ii) in her absence, such capacity, then person selected by written notice to Parent, signed by Securityholders holding (or who held immediately prior to the Effective Time) a majority of the shares of Company Stock determined in a fully diluted basisSelling Securityholders, a successor shall fill such vacancy and shall be deemed to be the Securityholders’ Representative named in such notice will be substituted for the Person who ceased to serveall purposes of this Agreement.
(c) By voting in favor All decisions and actions by the Securityholders’ Representative, including any agreement between the Securityholders’ Representative and the Buyer relating to the determination of any adjustments to the Purchase Price, the defense or settlement of any claims for which the Selling Securityholders may be required to indemnify the Buyer pursuant to Article VII hereof or the payment of the adoption Estimated Closing Expenses or the Representative Expenses shall be binding upon all of the Selling Securityholders, and no Selling Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(d) By their execution of this Agreement, the approval Selling Securityholders agree that:
(i) the Buyer shall be able to rely conclusively on the instructions and decisions of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Securityholder grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the specific and limited matters described above, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that the Securityholders’ Representative may lawfully do as to the determination of any adjustments to the Purchase Price, the settlement of any claims for indemnification by the Buyer pursuant to Article VII hereof, the payment of the Estimated Closing Expenses or cause the Representative Expenses or any other actions required to be done by virtue hereof. Each Securityholder further acknowledges and agrees that, upon execution of this Agreement, with respect to any delivery taken by the Securityholders’ Representative hereunder, and no Party hereunder shall have any cause of action against the Buyer or the Securityholders’ Representative for any documents executed action taken by the Buyer in reliance upon the instructions or decisions of the Securityholders’ Representative;
(ii) all actions, decisions and instructions of the Securityholders’ Representative shall be conclusive and binding upon all of the Selling Securityholders, and no Selling Securityholder 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, except for fraud or intentional breach of this Agreement by the Securityholders’ Representative;
(iii) the provisions of this Section 1.10 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Selling Securityholder may have in connection with the transactions contemplated by this Agreement;
(iv) remedies available at law for any breach of the provisions of this Section 1.10 are inadequate; therefore, the Buyer, the Securityholders’ Representative and the Company shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if any such Party brings an action to enforce the provisions of this Section 1.10; and
(v) the provisions of this Section 1.10 shall be binding upon the executors, heirs, legal representatives and successors of each Selling Securityholder, and any references in this Agreement to a Selling Securityholder or to the Selling Securityholders shall mean and include the successors to the Selling Securityholders’ rights hereunder, whether pursuant to this Section 10.1testamentary disposition, such Securityholder shall be bound by such documents the laws of descent and distribution or otherwise.
(e) In connection with any material determinations or decisions hereunder, as fully as if such Securityholder had executed and delivered such documents. No bond shall be required determined in the good faith discretion of the Securityholders’ Representative, and the Securityholders’ Representative shall receive no compensation for its services other than pursuant to consult with the terms of that certain ESOP Stockholder regarding such determinations or decisions.
(f) The Securityholders’ Representative Agreement, dated may incur reasonable out-of-pocket expenses (including reasonable attorney’s fees and court costs) on or about the date hereof, by and among the Securityholders’ Representative, the Company and certain behalf of the Selling Securityholders (the “Securityholders’ Representative Agreement”). Each Securityholder hereby agrees to receive correspondence from the Securityholders’ Representative, including in electronic form.
(d) Each Securityholder acknowledges and agrees that the Securityholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions his capacity as the Securityholders’ Representative deems appropriate in the Securityholders’ Representative’s sole discretion. No Person serving as the Securityholders’ Representative shall have any liability to any Person in connection with any act or omission as the Securityholders’ Representative, except for such Person’s willful misconduct or gross negligence. The Securityholders’ Representative shall not have any implied duties or obligations. The Securityholders’ Representative may rely upon any instrument which the Securityholders’ Representative in good faith believes to be genuine. The Securityholders’ Representative may consult legal counsel selected by it in the event of any dispute or question relating to this Agreement or any of the transactions or documents contemplated in connection with this Agreement, or in connection with the conduct of the Securityholders’ Representative’s duties. Each Securityholder further agrees to indemnify and hold the Securityholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Securityholders’ Representative, in each case as such loss, liability or expense is incurred or suffered; provided that in the event it is finally adjudicated that any such loss, liability or expense was primarily caused by the Securityholders’ Representative’s gross negligence or willful misconduct(collectively, the Securityholders’ “Representative will reimburse the Securityholders the amount of such indemnified loss, liability or expense attributable to such gross negligence or willful misconductExpenses”). If not paid directly to the Securityholders’ Representative by the Selling Securityholders, any such losses, liabilities or expenses the Representative Expenses will be paid out of the Representative Fund and thereafter the Representative Expenses may be recovered by from any Escrow Cash to be distributed to the Securityholders’ Representative from (i) Selling Securityholders following the funds in the Expense Fund and (ii) if the Expense Fund is depleted, the amounts in termination of the Escrow Account otherwise distributable to the Securityholders pursuant to the terms hereof and the Escrow Agreement at the time of distribution in accordance with written instructions delivered by the Securityholders’ Representative to the Escrow Agent; provided that while this section allows the Securityholders’ Representative to be paid from the Expense Fund and/or the Escrow AccountAgreement, this does not relieve the Securityholders from their obligation to promptly pay such lossesprovided, liabilities and expenses as they are suffered or incurredthat, nor does it prevent the Securityholders’ Representative from seeking any remedies available to it at law or otherwise.
(e) A decision, act, consent or instruction of the Securityholders’ Representative shall constitute have delivered a decision of all Securityholders notice to the Buyer and shall be final, binding and conclusive upon each such Securityholder, Parent, Merger Sub and Company and their respective Affiliates may rely upon any decision, act, consent or instruction the Escrow Agent not less than five Business Days prior to the termination of the Securityholders’ Escrow Agreement setting forth the amount of such Representative as being the decision, act, consent or instruction of each and every Securityholder. Each of Parent, Merger Sub, Company and their respective Affiliates is hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of Securityholders’ Representative. In furtherance of the foregoing, any reference to a power of Securityholders under this Agreement, Expenses to be exercised or otherwise taken, shall be a power vested in paid to the Securityholders’ Representative.
(f) The Expense Amount shall , and such recovery will be held by made from the Securityholders’ Representative in a segregated client bank account (the “Expense Fund”) and shall be used solely for the purposes of paying directly or reimbursing the Securityholders’ Representative for any third party expenses or other expenses or obligations incurred by or that are the responsibility of the Securityholders’ Representative pursuant Selling Securityholders according to this Agreement, the Escrow Agreement or the Securityholders’ Representative Agreement. The Securityholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The Securityholders shall not receive interest or other earnings on the Expense Fund and the Securityholders irrevocably transfer and assign to the Securityholders’ Representative any ownership right that they may have in any interest that may accrue on funds held in the Expense Fund. The Securityholders acknowledge that the Securityholders’ Representative is not providing any investment supervision, recommendations or advicetheir respective Pro Rata Share. The Securityholders’ Representative shall have no responsibility or liability for cause any loss of principal of balance remaining in the Expense Representative Fund other than as a result of its gross negligence or willful misconduct. As soon as practicable following at the expiration termination of the Escrow Period and Agreement to be promptly distributed to the resolution in full of all pending claims against the Escrow Account, if any, under the terms set forth herein, Selling Securityholders according to their Pro Rata Share; provided that the Securityholders’ Representative shall disburse the balance be entitled to retain any portion of the Expense Representative Fund required to the Escrow Agent fund Representative Expenses related to be disbursed to the Securityholders in accordance with the Escrow Agreement. For tax purposes, the Expense Fund shall be treated as having been received and voluntarily set aside by the Securityholders at the time of Closingunresolved Expected Claim Notices or Claim Notices.
Appears in 1 contract
Securityholders’ Representative. (a) Shareholder Representative Services At the Closing, by the adoption of the Merger, and by receiving the benefits thereof, including any consideration payable hereunder, each Company Securityholder shall be deemed to have approved the appointment of, and Fortis Advisors LLC is hereby shall be constituted and appointed as the Securityholders’ Representative. The Securityholders’ Representative shall be the exclusive representative, agent and attorney in attorney-in-fact for and on behalf of each of the Company Securityholders (for all purposes in connection with this Agreement and the “Securityholders’ Representative”). Without limiting the generality of the foregoingagreements ancillary hereto, the Securityholders’ Representative has full power and authority, on behalf of each Securityholder and his or her successors and assigns, including to (i) interpret execute, as the terms Securityholders’ Representative, this Agreement and provisions of this Agreement; (ii) execute and deliver all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required any agreement or permitted to be given instrument entered into or delivered in connection with the consummation transactions contemplated hereby, (ii) give and receive notices, instructions and communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company Securityholder, to or from Buyer (on behalf of itself or any other Buyer Indemnified Party) relating to this Agreement or any of the transactions contemplated hereby and any other matters contemplated by this AgreementAgreement or by such other agreement, including document or instrument (except to the Escrow Agreement; extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Securityholder individually), (iii) receive service review, negotiate and agree to and authorize Buyer to reclaim an amount of process cash from the Indemnity Escrow Fund, the Specified Matters Escrow Fund or the Adjustment Escrow Fund in connection with satisfaction of claims asserted by Buyer (on behalf of itself or any claims under this Agreement; other Buyer Indemnified Party, including by not objecting to such claims) pursuant to Section 8, (iv) object to such claims pursuant to Section 2.17 or Section 8, (v) consent or agree to, negotiate, enter into into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with judgments, orders or decrees of courts with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated hereby by settlement or otherwise, and awards take or forego any or all actions permitted or required of arbitrators any Company Securityholder or necessary in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company Securityholders, (vii) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Securityholders (other than with respect to such claimsthe payment of the consideration payable hereunder to the Company Securityholders) in accordance with the terms hereof and in the manner provided herein, (viii) pursuant to Section 2.17, review, negotiate, object to, accept or agree to the calculations set forth in the Buyer Closing Statement and to (ix) take all actions necessary or appropriate in the judgment of the Securityholders’ Representative hereunder, under the Escrow Agreement or under the Securityholders’ Representative Engagement Agreement for the accomplishment of the foregoing; , in each case without having to seek or obtain the consent of any Person under any circumstance and (vx) give and receive notices and communications; (vi) engage counselutilize the Expense Fund in connection with any of the foregoing. Notwithstanding the foregoing, and such accountants and other advisors or experts for the Securityholders and incur such other expenses Securityholders’ Representative shall have no obligation to act on behalf of the Securityholders Company Securityholders, except as expressly provided herein and in connection with this Agreement the Securityholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the transactions contemplated hereby Securityholders’ Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. Buyer, Merger Subs and their respective Affiliates (including after the Effective Time, the First Step Surviving Corporation and after the Second Effective Time, the Final Surviving Entity) shall be entitled to rely on the appointment of Shareholder Representative Services LLC as the Securityholders’ Representative may deem appropriate; and (vii) take all actions necessary or appropriate in the judgment of treat such Securityholders’ Representative on behalf as the duly appointed attorney-in-fact of each Company Securityholder and has having the Securityholders duties, power and authority provided for in this Section 10.2. Each Company Securityholder shall be bound by all actions taken and documents executed by the Securityholders’ Representative in connection with this Section 10.2, and Buyer and other Buyer Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Securityholders’ Representative. The Securityholders’ Representative may resign at any time with no less than thirty (30) days’ prior written notice as provided for in the Securityholders’ Representative Engagement Agreement.
(b) If a . The Person serving as the Securityholders’ Representative may be removed or replaced from time to time, or if such Person resigns or for any other reason ceases to serve in such capacityfrom its position as the Securityholders’ Representative, then a successor may be appointed, by the Company Securityholders collectively having a Pro Rata Share greater than 50% upon not less than thirty (30) days’ prior written notice to Parent, signed by Securityholders holding (or who held immediately prior to the Effective Time) a majority of the shares of Company Stock determined in a fully diluted basis, a successor Securityholders’ Representative named in such notice will be substituted for the Person who ceased to serve.
(c) By voting in favor of the adoption of this Agreement, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Securityholder grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the specific and limited matters described above, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that the Securityholders’ Representative may lawfully do or cause to be done by virtue hereof. Each Securityholder further acknowledges and agrees that, upon execution of this Agreement, with respect to any delivery by the Securityholders’ Representative of any documents executed by the Securityholders’ Representative pursuant to this Section 10.1, such Securityholder shall be bound by such documents as fully as if such Securityholder had executed and delivered such documentsBuyer. No bond shall be required of the Securityholders’ Representative.
(b) Certain Company Securityholders have entered or will enter into an engagement agreement (the “Securityholders’ Representative Engagement Agreement”) with the Securityholders’ Representative to provide direction to the Securityholders’ Representative in connection with its services under this Agreement, and the Securityholders’ Representative shall receive no compensation for its services other than pursuant Engagement Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the terms of that certain “Advisory Group”). Neither the Securityholders’ Representative Agreementnor its members, dated on or about the date hereofmanagers, by directors, officers, contractors, agents and among the Securityholders’ Representative, the Company and certain employees nor any member of the Securityholders Advisory Group (collectively, the “Securityholders’ Representative AgreementGroup”). Each ) shall be liable to any Company Securityholder hereby agrees to receive correspondence from the Securityholders’ Representative, including in electronic form.
(d) Each Securityholder acknowledges and agrees that for any act done or omitted hereunder or under the Securityholders’ Representative shall not be obligated Engagement Agreement while acting in good faith (and any act done or omitted pursuant to take any actions and the advice of counsel shall be entitled to take conclusive evidence of such actions as the Securityholders’ Representative deems appropriate in the Securityholders’ Representative’s sole discretion. No Person serving as the Securityholders’ Representative shall have any liability to any Person in connection with any act good faith) and without gross negligence or omission as the Securityholders’ Representative, except for such Person’s willful misconduct or gross negligencemisconduct. The Securityholders’ Representative shall not have be liable for any implied duties action or obligationsomission pursuant to the advice of counsel. The Securityholders’ Representative may rely upon any instrument which Company Securityholders shall severally (based on each such Company Securityholder’s Pro Rata Share) but not jointly indemnify the Securityholders’ Representative Group and hold it harmless against any loss, liability, damage, claim, penalty, fine, amount paid in good faith believes to be genuine. The Securityholders’ Representative may consult legal counsel selected by it in settlement, judgment, forfeiture, fee, cost or expense (including the event fees and expenses of any dispute or question relating to this Agreement or any counsel, other professionals and experts and their staffs and all expense of the transactions or documents contemplated document location, duplication and shipment and in connection with this Agreementseeking recovery from insurers) (collectively, “Representative Losses”) arising out of, resulting from or in connection with the conduct acceptance or administration of the Securityholders’ Representative’s duties. Each Securityholder further agrees to indemnify its duties hereunder and hold the Securityholders’ Representative harmless from and against under any loss, liability or expense arising in connection with any act or omission as the Securityholders’ Representativeagreements ancillary hereto, in each case as such lossRepresentative Losses are suffered or incurred; provided, liability or expense is incurred or suffered; provided that in the event it is finally adjudicated that any such loss, liability or expense was primarily Representative Losses are finally adjudicated to have been directly caused by the gross negligence, willful misconduct or bad faith of the Securityholders’ Representative’s gross negligence or willful misconduct, the Securityholders’ Representative will reimburse the Company Securityholders the amount of such indemnified loss, liability or expense Representative Losses to the extent attributable to such gross negligence negligence, willful misconduct or willful misconductbad faith. If not paid directly to the Securityholders’ Representative by the Company Securityholders, any such losses, liabilities or expenses Representative Losses may be recovered by the Securityholders’ Representative from (i) the funds in the Expense Fund and (ii) if and, after the Expense Fund is fully depleted, from the amounts in portion of the Indemnity Escrow Account Fund, the Specified Matters Escrow Fund or Adjustment Escrow Fund otherwise distributable to the Company Securityholders pursuant (and not distributed or distributable to a Buyer Indemnified Party or subject to a pending indemnification claim of a Buyer Indemnified Party) at such time as such amounts would otherwise be distributable to the terms hereof Company Securityholders, and such recovery will be made from the Escrow Agreement at the time Company Securityholders according to their respective Pro Rata Shares of distribution in accordance with written instructions delivered by the Securityholders’ such Representative to the Escrow AgentLosses; provided provided, that while this section Section allows the Securityholders’ Representative to be paid from the Expense Fund and/or the Escrow Account, aforementioned sources of funds this does not relieve the Company Securityholders from their obligation to promptly pay such losses, liabilities and expenses Representative Losses as they are suffered or incurred, nor does it prevent the Securityholders’ Representative from seeking any remedies available to it at law or otherwise.
. In no event will the Securityholders’ Representative be required to advance its own funds on behalf of the Company Securityholders 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 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 in performing such actions. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, the limitations on liability of the Company Securityholders set forth elsewhere in this Agreement (eincluding in Section 8.3) A decision, act, consent are not intended to be applicable to the indemnities provided to the Securityholders’ Representative under this Section 10.2(b). The Company Securityholders acknowledge and agree that the foregoing indemnities will survive the resignation or instruction removal of the Securityholders’ Representative or any member of the Advisory Group, the Closing, or the termination of this Agreement. The powers, immunities and rights to indemnification granted to the Securityholders’ Representative Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Company Securityholder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Indemnity Escrow Fund or the Specified Matters Escrow Fund.
(c) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Securityholders’ Representative that is within the scope of the Securityholders’ Representative’s authority under Section 10.2(a) shall constitute a decision notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Securityholders and shall be final, binding and conclusive upon each such Securityholder, Parent, Merger Sub and Company Securityholder and their respective Affiliates may successors as if expressly confirmed and ratified in writing by such Company Securityholder; and each Buyer Indemnified Party shall be entitled to rely exclusively upon any such notice, communication, decision, actaction, consent failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company Securityholder. Any defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Securityholders’ Representative as being the decision, act, consent or instruction of each and every Securityholder. Each of Parent, Merger Sub, Company and their respective Affiliates is hereby relieved from any liability to any Person for any acts done by them taken in accordance with such decision, act, consent or instruction of Securityholders’ Representative. In furtherance of the foregoing, any reference to a power of Securityholders good faith under this Agreement, to be exercised or otherwise taken, shall be a power vested in the Securityholders’ Representative.
(f) The Expense Amount shall be held by the Securityholders’ Representative in a segregated client bank account (the “Expense Fund”) and shall be used solely for the purposes of paying directly or reimbursing the Securityholders’ Representative for any third party expenses or other expenses or obligations incurred by or that are the responsibility of the Securityholders’ Representative pursuant to this Agreement, the Escrow Agreement or the Securityholders’ Representative AgreementEngagement Agreement are waived. The Securityholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes Buyer hereby covenants and will not voluntarily make these funds available agrees to its creditors in the event of bankruptcy. The Securityholders shall not receive interest or other earnings on the Expense Fund and the Securityholders irrevocably transfer and assign to provide the Securityholders’ Representative any ownership right that they may have in any interest that may accrue on funds held with access, during normal business hours, to all books, records, employees, witnesses and other information in the Expense Fund. The Securityholders acknowledge that custody or control of Buyer or the Final Surviving Entity in connection with any claim for indemnification under Section 8 and the discharge of the Securityholders’ Representative is not providing any investment supervision, recommendations or adviceRepresentative’s duties hereunder. The Securityholders’ Representative shall have no responsibility or liability for be entitled to: (i) rely upon the Spreadsheet, (ii) rely upon any loss of principal signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the Expense Fund applicable Company Securityholder or other than as a result of its gross negligence or willful misconduct. As soon as practicable following the expiration of the Escrow Period and the resolution in full of all pending claims against the Escrow Account, if any, under the terms set forth herein, the Securityholders’ Representative shall disburse the balance of the Expense Fund to the Escrow Agent to be disbursed to the Securityholders in accordance with the Escrow Agreement. For tax purposes, the Expense Fund shall be treated as having been received and voluntarily set aside by the Securityholders at the time of Closingparty.
Appears in 1 contract
Securityholders’ Representative. (a) Shareholder By virtue of its approval of the Merger or submission of the Transmittal Documentation (as applicable), each Securityholder designates and appoints the Securityholders’ Representative Services LLC is hereby constituted and appointed as such Securityholder’s agent and attorney in attorney-in-fact with full power and authority to take any and all actions that the Securityholders’ Representative believes are necessary or appropriate under this Agreement for and on behalf of each of the Securityholders (the “Securityholders’ Representative”). Without limiting the generality of the foregoing, the Securityholders’ Representative has , as fully as if each Securityholder was acting on its own behalf, including full power and authority, authority on such Securityholder’s behalf (i) to give and receive notices and communications and to accept service of process on behalf of each Securityholder and his or her successors and assignssuch Securityholder, to (i) interpret the terms and provisions of this Agreement; (ii) execute to authorize, negotiate, compromise, settle, agree to and deliver all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted otherwise handle any adjustments to be given in connection with the consummation of the transactions contemplated by Merger Consideration under this Agreement, including the Escrow Agreement; (iii) receive service of process in connection with any claims under this Agreement; (iv) to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders judgments or order of courts or other Governmental Authorities and awards of arbitrators arbitrators, with respect to, any claims by any Buyer Indemnitee against any Securityholder or by any Securityholder against any Buyer Indemnitee, or any other dispute between any Buyer Indemnitee and any Securityholder, in each case relating to this Agreement or the transactions contemplated by this Agreement, (iv) to consummate the transactions contemplated herein, (v) to pay such Securityholder’s portion of the Transaction Expenses (whether incurred on or after the date hereof) and to retain amounts from the Merger Consideration for the purpose of paying expenses incurred by it pursuant to matters arising out of this Agreement or satisfying any post-Closing adjustment(s) to the Merger Consideration, (vi) to disburse any funds received hereunder to each Securityholder, (vii) to execute and deliver any Certificates and execution of such further instruments as may be delivered to Buyer, (viii) to interpret all of the terms and provisions of this Agreement and to consent to, execute and deliver any amendment or waiver hereof on behalf of each such Securityholder, (ix) to take all other actions to be taken by or on behalf of such Securityholder in connection herewith, (x) to authorize payments to be made with respect to such claimsthis Agreement, (xi) to deal with Buyer under this Agreement with respect to all matters arising under this Agreement, (xii) to take any and all other actions specified in or contemplated by this Agreement, and to engage counsel, accountants or other agents in connection with the foregoing matters, (xiii) to obtain reimbursement (whether or not out of the Securityholders’ Rep Expense Fund) as provided for herein for all out-of-pocket fees and expenses and other obligations of, or incurred by, the Securityholders’ Representative in connection with this Agreement and (xiv) to take all actions that are either necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing; (v) give and receive notices and communications; (vi) engage counsel, and such accountants and other advisors foregoing or experts for are specifically mandated by the Securityholders and incur such other expenses on behalf terms of the Securityholders in connection with this Agreement and the transactions contemplated hereby as Agreement. Notices or communications to or from the Securityholders’ Representative may deem appropriate; and (vii) take all actions necessary will constitute notice to or appropriate in the judgment of Securityholders’ Representative on behalf from each of the Securityholders in connection with for all purposes under this AgreementAgreement except where the context otherwise requires.
(b) If a Person serving as the The Securityholders’ Representative resigns may delegate its authority as Securityholders’ Representative to any one of the Securityholders (or their Affiliates) for any other reason ceases to serve in such capacity, then by a fixed or indeterminate period of time upon not fewer than two (2) Business Days’ prior written notice to Parent, signed by Securityholders holding (or who held immediately prior to the Effective Time) a majority of the shares of Company Stock determined Buyer in a fully diluted basis, a accordance with Section 9.2. Each successor Securityholders’ Representative named in such notice will be substituted for the Person who ceased to serve.
(c) By voting in favor has all of the adoption of power, authority, rights and privileges conferred by this Agreement, Agreement upon the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Securityholder grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the specific and limited matters described above, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that the Securityholders’ Representative may lawfully do or cause to be done by virtue hereof. Each Securityholder further acknowledges and agrees that, upon execution of this Agreement, with respect to any delivery by the Securityholders’ Representative of any documents executed by the Securityholders’ Representative pursuant to this Section 10.1, such Securityholder shall be bound by such documents as fully as if such Securityholder had executed and delivered such documents. No bond shall be required of the original Securityholders’ Representative, and the Securityholders’ Representative shall receive no compensation for its services other than pursuant to the terms of that certain Securityholders’ Representative Agreement, dated on or about the date hereof, by and among the term “Securityholders’ Representative, the Company and certain of the Securityholders (the “Securityholders’ Representative Agreement”). Each Securityholder hereby agrees to receive correspondence from the ” as used in this Agreement includes any successor Securityholders’ Representative, including in electronic form.
(d) Each Securityholder acknowledges and agrees that the Securityholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Securityholders’ Representative deems appropriate in the Securityholders’ Representative’s sole discretion. No Person serving as the Securityholders’ Representative shall have any liability to any Person in connection with any act or omission as the Securityholders’ Representative, except for such Person’s willful misconduct or gross negligence. The Securityholders’ Representative shall not have any implied duties or obligations. The Securityholders’ Representative may rely upon any instrument which the Securityholders’ Representative in good faith believes to be genuine. The Securityholders’ Representative may consult legal counsel selected by it in the event of any dispute or question relating to this Agreement or any of the transactions or documents contemplated in connection with this Agreement, or in connection with the conduct of the Securityholders’ Representative’s duties. Each Securityholder further agrees to indemnify and hold the Securityholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Securityholders’ Representative, in each case as such loss, liability or expense is incurred or suffered; provided that in the event it is finally adjudicated that any such loss, liability or expense was primarily caused by the Securityholders’ Representative’s gross negligence or willful misconduct, the Securityholders’ Representative will reimburse the Securityholders the amount of such indemnified loss, liability or expense attributable to such gross negligence or willful misconduct. If not paid directly to the Securityholders’ Representative by the Securityholders, any such losses, liabilities or expenses may be recovered by the Securityholders’ Representative from (i) the funds in the Expense Fund and (ii) if the Expense Fund is depleted, the amounts in the Escrow Account otherwise distributable to the Securityholders pursuant to the terms hereof and the Escrow Agreement at the time of distribution in accordance with written instructions delivered by the Securityholders’ Representative to the Escrow Agent; provided that while this section allows the Securityholders’ Representative to be paid from the Expense Fund and/or the Escrow Account, this does not relieve the Securityholders from their obligation to promptly pay such losses, liabilities and expenses as they are suffered or incurred, nor does it prevent the Securityholders’ Representative from seeking any remedies available to it at law or otherwise.
(ec) A decision, act, consent or instruction of the Securityholders’ Representative shall constitute acting on behalf of the Securityholders constitutes a decision of all the Securityholders (except where the context otherwise requires) and shall be is final, binding and conclusive upon each such Securityholderthe Securityholders, Parent, Merger Sub and Company Buyer and their respective Affiliates any Indemnified Party may rely upon any such decision, act, consent or instruction of the Securityholders’ Representative as being the decision, act, consent or instruction of each and every Securityholder. Each of Parent, Merger Sub, Company and their respective Affiliates is hereby relieved from any the Securityholders.
(d) The Securityholders’ Representative will have no liability to any Person for any acts act done by them or omitted under this Agreement as the Securityholders’ Representative while acting in accordance with good faith and not in a manner constituting wanton misconduct, and any act done or omitted pursuant to the advice of counsel will be conclusive evidence of such decision, act, consent good faith. The Securityholders will severally indemnify and hold harmless the Securityholders’ Representative from and against any Losses the Securityholders’ Representative may suffer as a result of any such action or instruction of omission.
(e) The Securityholders’ Representative will receive no compensation for services as the Securityholders’ Representative. In furtherance of The Securityholders will reimburse, on a pro rata basis in proportion to their interest in the foregoingMerger Consideration, any reference to a power of Securityholders under this Agreement, to be exercised or otherwise taken, shall be a power vested in the Securityholders’ Representative.
(f) The Expense Amount shall be held Representative for professional fees and expenses of any attorney, accountant or other advisors retained by the Securityholders’ Representative and other reasonable out-of-pocket expenses incurred by the Securityholders’ Representative in a segregated client bank account connection with the performance of the Securityholders’ Representative’s duties under this Agreement. An amount equal to $250,000 (the “Securityholders’ Rep Expense Fund”) will be deducted from the Closing Merger Consideration and shall delivered to the Securityholders’ Representative at the Closing to be used solely held in trust as a source of such reimbursement for the purposes costs and out-of-pocket expenses (including Taxes and costs of paying directly or reimbursing professional advisers) incurred by the Securityholders’ Representative for its obligations in connection with this Agreement, with any third party expenses or other expenses or obligations balance of the Securityholders’ Rep Expense Fund not incurred for such purposes to be returned to the Securityholders on a pro rata basis.
(f) This appointment and grant of power and authority by or that are the responsibility of Securityholders to the Securityholders’ Representative pursuant to this Section 8.5 is coupled with an interest, is in consideration of the mutual covenants made in this Agreement, is irrevocable and may not be terminated by the Escrow Agreement act of any Securityholder or by operation of law, whether upon the Securityholders’ Representative Agreement. The Securityholders’ Representative will hold these funds separate from its corporate fundsdeath or incapacity of any Securityholder, will not use these funds for its operating expenses or by the occurrence of any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The Securityholders shall not receive interest or other earnings on the Expense Fund and the Securityholders irrevocably transfer and assign to the Securityholders’ Representative any ownership right that they may have in any interest that may accrue on funds held in the Expense Fund. The Securityholders acknowledge that the Securityholders’ Representative is not providing any investment supervision, recommendations or advice. The Securityholders’ Representative shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. As soon as practicable following the expiration of the Escrow Period and the resolution in full of all pending claims against the Escrow Account, if any, under the terms set forth herein, the Securityholders’ Representative shall disburse the balance of the Expense Fund to the Escrow Agent to be disbursed to the Securityholders in accordance with the Escrow Agreement. For tax purposes, the Expense Fund shall be treated as having been received and voluntarily set aside by the Securityholders at the time of Closingevent.
Appears in 1 contract
Securityholders’ Representative. (a) Shareholder Representative Services Prior to entry into this Agreement, the Company and the Unitholders (other than the Blocker Members) shall appoint Chilly Water, LLC is hereby constituted and appointed to act as the representative for the benefit of each Unitholder (other than the Blocker Members) as the exclusive agent and attorney attorney- in-fact to act on behalf of each Unitholder (other than the Blocker Members), in fact connection with the transactions contemplated hereby.
(b) The Securityholders’ Representative shall have the authority to act for and on behalf of each of the Securityholders Unitholders (other than the “Securityholders’ Representative”Blocker Members). Without limiting the generality of the foregoing, the Securityholders’ Representative has full power including, without limitation, (i) to give and authorityreceive notices and communications, (ii) to act on behalf of each Securityholder such Persons with respect to the Adjustment Escrow Account, the PPP Escrow Account, the Earn-Out Payments and his any other matters arising under this Agreement or her successors and assignsthe other Transaction documents, to (i) interpret the terms and provisions of this Agreement; (ii) execute and deliver all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement, including the Escrow Agreement; (iii) receive service to authorize delivery to Parent and Merger Sub of process any funds and property in connection with any its possession or in the possession of the Adjustment Escrow Agent or PPP Escrow Agent in satisfaction of claims under this Agreement; by Parent and Merger Sub, (iv) to object to such deliveries, (v) to agree to, negotiate, enter into settlements and compromises of, and demand 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 claimssuits, 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 purposes 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, 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 the sole authorized agent of the Unitholders (vother than the Blocker Members) give from and receive notices and communications; (vi) engage counselafter Closing until such time as the agency is terminated. Any successor in the position of Securityholders’ Representative may be filled by Securityholders’ Representative, and any such accountants replacement shall acknowledge and other advisors or experts agree to be treated the “Securityholders’ Representative” for the Securityholders and incur such other expenses on behalf purposes of the Securityholders in connection with this Agreement and the transactions contemplated hereby as any other Transaction Document. Notices or communications to or from the Securityholders’ Representative may deem appropriate; and shall constitute notice to or from each of the Unitholder (viiother than the Blocker Members) take all actions necessary or appropriate in during the judgment 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 88758860_15 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 behalf the powers of the Securityholders in connection with this Agreement.
(b) If a Person serving as the Securityholders’ Representative resigns or for any other reason ceases determined by it to serve in such capacity, then by written notice be reasonably necessary to Parent, signed by Securityholders holding (or who held immediately prior to carry out the Effective Time) a majority purposes of the shares of Company Stock determined in a fully diluted basis, a successor Securityholders’ Representative named in such notice will be substituted for the Person who ceased to serveits obligations.
(c) By voting in favor of the adoption of this Agreement, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Securityholder grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the specific and limited matters described above, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that the Securityholders’ Representative may lawfully do or cause to be done by virtue hereof. Each Securityholder further acknowledges and agrees that, upon execution of this Agreement, with respect to any delivery by the Securityholders’ Representative of any documents executed by the Securityholders’ Representative pursuant to this Section 10.1, such Securityholder shall be bound by such documents as fully as if such Securityholder had executed and delivered such documents. No bond shall be required of the Securityholders’ Representative, and the The Securityholders’ Representative shall receive no compensation for its services other than pursuant have reasonable access to the terms of that certain Securityholders’ Representative Agreement, dated on or information about the date hereofCompany, by Blocker, Parent, Merger Sub and among the Securityholders’ Representative, Surviving Entity necessary or appropriate for it to fulfill its obligations under this Agreement and the Company and certain reasonable assistance of the Securityholders (the “Securityholders’ Representative Agreement”). Each Securityholder hereby agrees to receive correspondence from the Securityholders’ RepresentativeSurviving Entity’s, including in electronic form.
(d) Each Securityholder acknowledges Blocker’s and agrees 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 be obligated disclose any nonpublic information from or about the Surviving Entity, Blocker or Parent to take any actions and shall be entitled anyone (except on a need to take such actions as the know basis to agents or representatives of Securityholders’ Representative deems appropriate in the Securityholders’ Representative’s sole discretion. No Person serving as the Securityholders’ Representative shall have any liability who first agree to any Person in connection with any act or omission as the Securityholders’ Representative, except for treat such Person’s willful misconduct or gross negligence. The Securityholders’ Representative shall not have any implied duties or obligations. The Securityholders’ Representative may rely upon any instrument which the Securityholders’ Representative in good faith believes to be genuine. The Securityholders’ Representative may consult legal counsel selected by it in the event of any dispute or question relating to this Agreement or any of the transactions or documents contemplated in connection with this Agreement, or information confidentially) other than in connection with the conduct enforcement of the Securityholders’ Representative’s duties. Each Securityholder further agrees to indemnify and hold the Securityholders’ Representative harmless from and against any loss, liability rights hereunder or expense arising any other proceeding brought in connection with any act or omission as the Securityholders’ Representative, in each case as such loss, liability or expense is incurred or suffered; provided that in the event it is finally adjudicated that any such loss, liability or expense was primarily caused by the Securityholders’ Representative’s gross negligence or willful misconduct, the Securityholders’ Representative will reimburse the Securityholders the amount of such indemnified loss, liability or expense attributable to such gross negligence or willful misconduct. If not paid directly to the Securityholders’ Representative by the Securityholders, any such losses, liabilities or expenses may be recovered by the Securityholders’ Representative from (i) the funds in the Expense Fund and (ii) if the Expense Fund is depleted, the amounts in the Escrow Account otherwise distributable to the Securityholders pursuant to the terms hereof and the Escrow Agreement at the time of distribution in accordance with written instructions delivered by the Securityholders’ Representative to the Escrow Agent; provided that while this section allows the Securityholders’ Representative to be paid from the Expense Fund and/or the Escrow Account, this does not relieve the Securityholders from their obligation to promptly pay such losses, liabilities and expenses as they are suffered or incurred, nor does it prevent the Securityholders’ Representative from seeking any remedies available to it at law or otherwiseherewith.
(ed) A decision, act, consent or instruction of the Securityholders’ Representative shall constitute a decision decision, act, consent or instruction of all Securityholders of the Unitholders (other than the Blocker Members) and shall be final, binding and conclusive upon each such Securityholder, Parent, Merger Sub and Company and their respective Affiliates 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 each every such Unitholder (other than the Blocker Members) and every Securityholder. Each of Parent, Merger Sub, Company and their respective Affiliates is hereby relieved from any liability shall have no Liability to any such Person for any acts done by them actions taken in accordance with reliance upon any such decision, act, consent or instruction of Securityholders’ Representative. In furtherance of the foregoing, any reference to a power of Securityholders under this Agreement, to be exercised or otherwise taken, shall be a power vested in the Securityholders’ Representative.
(fe) The Expense Amount shall be held by the Securityholders’ Representative in a segregated client bank account (the “Expense Fund”) and shall be used solely for the purposes of paying directly or reimbursing the Securityholders’ Representative for any third party expenses or other expenses or obligations incurred by or that are the responsibility of the Securityholders’ Representative pursuant to this Agreement, the Escrow Agreement or the Securityholders’ Representative Agreement. The Securityholders’ Representative will hold these funds separate from its corporate funds, will not use these funds be liable for its operating expenses any act taken or any other corporate purposes and will not voluntarily make these funds available omitted to its creditors in the event of bankruptcy. The Securityholders shall not receive interest or other earnings on the Expense Fund and the Securityholders irrevocably transfer and assign to the be taken as Securityholders’ Representative while acting in good faith, and any ownership right that they may have in any interest that may accrue on funds held in act taken or omitted to be taken pursuant to the Expense Fund. The Securityholders acknowledge that the Securityholders’ Representative is not providing any investment supervision, recommendations or advicereasonable advice of counsel will be conclusive evidence of such good faith. The Securityholders’ Representative shall have no responsibility be entitled to rely, and shall be fully protected in relying, upon any statements furnished to it by the Surviving Entity, Parent, Merger Sub and any third party or liability for any loss of principal of other evidence deemed by the Expense Fund other than as a result of its gross negligence or willful misconduct. As soon as practicable following the expiration of the Escrow Period Securityholders’ Representative to be reliable, and the resolution Securityholders’ Representative shall be entitled to act on the advice of counsel selected by it. The Securityholders’ Representative shall be fully justified in full failing or refusing to take any action under this Agreement or any related document or agreement if it shall have received such advice or concurrence as it deems appropriate with respect to such inaction, or if it shall not have been expressly indemnified to its satisfaction against any and all Liability and expense that the Securityholders’ Representative may incur by reason of all pending claims against taking or continuing to take any such action.
(f) Notwithstanding anything contained herein to the Escrow Accountcontrary, if anythe Securityholders’ Representative covenants and agrees that, under prior to the terms set forth hereinpayment of any amounts required to be paid pursuant to Section 2.13(a)(i) from the Securityholders’ Representative Expense Amount, the Securityholders’ Representative shall disburse the balance not use any portion of the Securityholders’ Representative Expense Fund 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 duties hereunder.
(g) Notwithstanding anything contained herein to the Escrow Agent to be disbursed to the Securityholders in accordance with the Escrow Agreement. For tax purposescontrary, the Expense Fund Securityholders’ Representative shall not have the authority to act for and on behalf of the Blocker Members, and all decisions, acts, consents or instructions required by any of the Blocker Members or Blocker Partners herein shall be treated as having been received and voluntarily set aside made by the Securityholders at the time of Closing.Blocker Seller. 88758860_15
Appears in 1 contract
Samples: Merger Agreement (Tilray, Inc.)
Securityholders’ Representative. (a) Shareholder By virtue of their execution of the Written Consents and Letters of Transmittal and as more specifically provided for therein, each of the holders of Company Shares and each of the holders of CEA Shares (other than Dissenting Shares and Company Shares or CEA Shares held in the Company’s or CEA’s treasury, as the case may be, if any) and CEA Options shall approve and confirm, in accordance with the terms set forth herein, his, her or its irrevocable appointment of CEA Rep, LLC as his, her or its sole and exclusive agent, representative and attorney-in-fact for the purposes of this Agreement and the Escrow Agreement. The Securityholders’ Representative Services LLC is hereby constituted and appointed as agent and attorney in fact shall have the authority to act for and on behalf of each of the Securityholders (the “Former Securityholders’ Representative”). Without limiting the generality of the foregoing, the Securityholders’ Representative has full power including, without limitation, to give and authorityreceive notices and communications, to act on behalf of each Securityholder the Former Securityholders with respect to the Escrow Agreement and his or her successors and assigns, to (i) interpret the terms and provisions of this Agreement; (ii) execute and deliver all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and any other documents required or permitted to be given in connection with the consummation of the transactions contemplated by matters arising under this Agreement, including to authorize delivery to Parent of any funds and property in its possession or in the possession of the Escrow Agreement; (iii) receive service Agent in satisfaction of process in connection with any claims under this Agreement; (iv) by Parent, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand 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 claimssuits, claims or proceedings, and to take all actions necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing; (v) give and receive notices and communications; (vi) engage counsel, and such accountants and other advisors or experts for the Securityholders and incur such other expenses on behalf of the Securityholders in connection with this Agreement and the transactions contemplated hereby as the . The Securityholders’ Representative may deem appropriate; and (vii) take shall for all actions necessary or appropriate in purposes be deemed the judgment of Securityholders’ Representative on behalf sole authorized agent of the Former Securityholders in connection with this Agreement.
(b) If a Person serving until such time as the Securityholders’ Representative resigns or for any other reason ceases agency is terminated. Such agency may be changed by the Former Securityholders from time to serve in such capacity, then by time upon not less than thirty (30) days prior written notice to Parent; provided, signed by Securityholders holding (or who held immediately prior to the Effective Time) a majority of the shares of Company Stock determined in a fully diluted basishowever, a successor Securityholders’ Representative named in such notice will be substituted for the Person who ceased to serve.
(c) By voting in favor of the adoption of this Agreement, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Securityholder grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the specific and limited matters described above, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that the Securityholders’ Representative may lawfully do or cause not be removed unless holders of at least two-thirds interest in the Merger Consideration agree to be done by virtue hereofsuch removal and to the identity of the substituted Securityholders’ Representative. Each Securityholder further acknowledges and agrees that, upon execution Any vacancy in the position of this Agreement, with respect to any delivery by the Securityholders’ Representative may be filled by approval of any documents executed by the Securityholders’ Representative pursuant to this Section 10.1, such Securityholder shall be bound by such documents as fully as if such Securityholder had executed and delivered such documentsrecipients of a majority of the Merger Consideration. No bond shall be required of the Securityholders’ Representative, and the Securityholders’ Representative shall not receive no compensation for its services other than pursuant services. Notices or communications to the terms of that certain Securityholders’ Representative Agreement, dated on or about the date hereof, by and among the Securityholders’ Representative, the Company and certain of the Securityholders (the “Securityholders’ Representative Agreement”). Each Securityholder hereby agrees to receive correspondence from the Securityholders’ Representative, including in electronic formRepresentative shall constitute notice to or from each of the Former Securityholders during the term of the agency.
(db) Each Securityholder acknowledges The Securityholders’ Representative shall not incur any liability with respect to any action taken or suffered by it or omitted hereunder as Securityholders’ Representative while acting in its capacity as Securityholders’ Representative. The Securityholders’ Representative may, in all questions arising hereunder, rely on the advice of counsel and agrees that other professionals and for anything done, omitted or suffered by the Securityholders’ Representative shall not be obligated liable to take any actions and shall be entitled to take such actions anyone while acting in its capacity as the Securityholders’ Representative deems appropriate in the Securityholders’ Representative’s sole discretion. No Person serving as the Securityholders’ Representative shall have any liability to any Person in connection with any act or omission as the Securityholders’ Representative, except for such Person’s willful misconduct or gross negligence. 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 have any implied duties or obligations. The Securityholders’ Representative may rely upon any instrument which act as a limitation on the powers of the Securityholders’ Representative in good faith believes determined by it to be genuinereasonably necessary to carry out the purposes of its obligations. The Securityholders’ Representative may consult legal counsel selected by it in the event of any dispute or question relating to this Agreement or any of the transactions or documents contemplated in connection with this Agreement, or in connection with the conduct of the Securityholders’ Representative’s duties. Each Securityholder further agrees to Former Securityholders shall indemnify and hold the Securityholders’ Representative and hold it harmless from and against any loss, liability or expense incurred on the part of the Securityholders’ Representative (unless arising out of its gross negligence or willful misconduct) and arising out of or in connection with any act the acceptance or omission as the administration of its duties under this Agreement. The Securityholders’ Representative, in each case as such loss, liability or expense is incurred or suffered; provided that in the event it is finally adjudicated that Representative shall be entitled to satisfy any such loss, liability or and expense was primarily caused from the proceeds of the Indemnity Escrow Amount received by the Securityholders’ Representative’s gross negligence or willful misconduct, Representative for distribution to the Securityholders’ Representative will reimburse the Former Securityholders the amount of on a pro rata basis following such indemnified loss, liability or expense attributable to time that any such gross negligence or willful misconduct. If not paid directly Indemnity Escrow Amount is distributed to the Securityholders’ Representative by in accordance with the terms of the Escrow Agreement.
(c) The Securityholders’ Representative shall have the reasonable assistance of the Surviving Corporation’s, any such lossesthe CEA Surviving Corporation’s and Parent’s officers and employees for purposes of performing its duties and exercising its rights hereunder, liabilities or expenses may be recovered by provided that the Securityholders’ Representative shall treat confidentially and not disclose any nonpublic information from (i) or about the funds in the Expense Fund and (ii) if the Expense Fund is depletedSurviving Corporation, the amounts CEA Surviving Corporation or Parent or any Affiliate thereof to anyone (except on a need to know basis to individuals who agree to treat such information confidentially) other than in connection with the Escrow Account otherwise distributable to the Securityholders pursuant to the terms hereof and the Escrow Agreement at the time enforcement of distribution any rights hereunder or any other proceeding brought in accordance with written instructions delivered by the Securityholders’ Representative to the Escrow Agent; provided that while this section allows the Securityholders’ Representative to be paid from the Expense Fund and/or the Escrow Account, this does not relieve the Securityholders from their obligation to promptly pay such losses, liabilities and expenses as they are suffered or incurred, nor does it prevent the Securityholders’ Representative from seeking any remedies available to it at law or otherwiseconnection herewith.
(ed) A decision, act, consent or instruction of the Securityholders’ Representative shall constitute a decision decision, act, consent or instruction of all of the Former Securityholders and shall be final, binding and conclusive upon each such Securityholder, Parent, Merger Sub and Company and their respective Affiliates Former Securityholders. Parent may rely upon any such decision, act, consent or instruction of the Securityholders’ Representative as being the decision, act, consent or instruction of each and every Securityholder. Each of Parent, Merger Sub, Company and their respective Affiliates is hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of Former Securityholders’ Representative. .
(e) In furtherance of the foregoing, any reference to a power of Securityholders under this Agreement, to be exercised or otherwise taken, shall be a power vested in the Securityholders’ Representative’s sole discretion, part or all of the Former Securityholders’ Escrow Amount may be deposited in the Escrow Account, and any such amounts so deposited shall then become subject to the terms of the Escrow Agreement as provided therein.
(f) The Expense Amount shall be held by the Securityholders’ Representative in a segregated client bank account shall release the Former Securityholders Escrow Amount upon the later to occur of (i) the “Expense Fund”General Survival Date, (ii) and shall be used solely for the purposes final resolution of paying directly all claims made by the Parent Claimants under Article VII or reimbursing (iii) the Securityholders’ Representative for any third party expenses or other expenses or obligations incurred by or that are the responsibility of the Securityholders’ Representative pursuant to this Agreement, the Escrow Agreement or the Securityholders’ Representative Agreement. The Securityholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The Securityholders shall not receive interest or other earnings on the Expense Fund and the Securityholders irrevocably transfer and assign to the Securityholders’ Representative any ownership right that they may have in any interest that may accrue on funds held in the Expense Fund. The Securityholders acknowledge date that the Securityholders’ Representative reasonably determines that the Former Securityholders Escrow Amount is no longer necessary in connection with any potential claims.
(g) The Securityholder Claimants may not providing any investment supervision, recommendations or advice. The Securityholders’ Representative shall have no responsibility or liability make a claim for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. As soon as practicable following the expiration of the Escrow Period and the resolution in full of all pending claims indemnity against the Escrow Account, if any, under the terms set forth herein, Parent pursuant to this Agreement except through the Securityholders’ Representative shall disburse the balance of the Expense Fund to the Escrow Agent to be disbursed to the Securityholders in accordance with the Escrow Agreement. For tax purposes, the Expense Fund shall be treated as having been received and voluntarily set aside by the Securityholders at the time of ClosingRepresentative.
Appears in 1 contract
