Stakeholder Representative. (a) The adoption of this Agreement and the approval of the Merger by the holders of Common Stock or acceptance of the Closing Per Share Consideration pursuant to Section 2.6 or Award Payment shall constitute the grant to the Stakeholder Representative of the full power and authority, to act as agent and attorney-in-fact, with full power of substitution to act in the name, place and of each Holder’s stead with respect to the transactions contemplated by, and all the terms and provisions of, this Agreement and to act on such Holder’s behalf in any dispute, litigation or arbitration involving this Agreement and to do or refrain from doing all such further acts and things, and execute all such agreements, certificates, instruments or other documents, as the Stakeholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power to (i) execute and deliver the Escrow Agreement (with such modifications or changes therein as to which the Stakeholder Representative, in its sole discretion, shall have consented) and to agree to such amendments or modifications thereto as the Stakeholder Representative, in its sole discretion, determines to be desirable, (ii) interpret the terms and provisions of this Agreement and the documents to be executed and delivered in connection herewith, including Article IX and the Escrow Agreement, (iii) execute and deliver and receive deliveries of 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 and the Escrow Agreement, (iv) receive service of process in connection with any claims under this Agreement or the Escrow Agreement, (v) agree to negotiate, enter into settlements and compromises of, assume the defense of claims, 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 sole judgment of the Stakeholder Representative for the accomplishment of the foregoing, including taking all such actions as may be necessary under Article IX, (vi) give and receive notices and communications, (vii) authorize delivery to Parent of funds from the Escrow Account or any portion thereof in satisfaction of claims brought by Parent for Damages, (viii) receive and distribute the consideration payable hereunder, including payments from the Escrow Account and any earnings and proceeds thereon, and (ix) take all actions (or refrain from taking actions) necessary or appropriate in the judgment of the Stakeholder Representative as agent for and on behalf of the Holders in connection with this Agreement and the Escrow Agreement. (b) The appointment of the Stakeholder Representative shall be deemed coupled with an interest and is hereby irrevocable. The provisions of this Section 11.16 are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death or dissolutions, granted by the Holders to the Stakeholder Representative, and shall be binding upon the executors, heirs, legal representatives, successors and assigns of each such Holder. (c) The Stakeholder Representative shall act for the Holder on all of the matters set forth in this Agreement in the manner the Stakeholder Representative reasonably believes to be in the best interest of the Holders and consistent with their obligations under this Agreement, and shall not waive, amend or otherwise modify this Agreement, waive any condition contained herein, enter into or execute any agreement, certificate, instrument or other document, or do or refrain from doing any other act or deed, that has the effect of adversely and disproportionately impacting any Holder relative to the other Holders in a manner that is inconsistent with the relative rights of such disproportionately impacted Holder under this Agreement, without the prior written consent of such Holder. The Stakeholder Representative shall not be responsible to the Holders for any Damages they may suffer by reason of the performance by the Stakeholder Representative of the duties of the Stakeholder Representative under this Agreement, other than loss or damage arising from a willful and knowing violation of the Law or this Agreement by the Stakeholder Representative. (d) Each Holder agrees to indemnify and hold harmless the Stakeholder Representative from, and promptly reimburse the Stakeholder Representative for, any loss, damage, fees, costs or expenses arising from the performance of the duties of the Stakeholder Representative hereunder, including the cost of any legal counsel or accountants retained by the Stakeholder Representative on behalf of the Holders or otherwise, but excluding any loss or damage arising from a willful and knowing violation of the Law or this Agreement by the Stakeholder Representative. All expenses, if any, incurred by the Stakeholder Representative in connection with the performance of its duties as the Stakeholder Representative will be borne and paid by the Holders according to their Pro Rata Share. In furtherance of the foregoing, the Stakeholder Representative shall hold the Stakeholder Representative Expense Amount in a dedicated account for the benefit of the Holders and use the Stakeholder Representative Expense Amount to pay for any costs and expenses reasonably incurred by the Stakeholder Representative in carrying out its duties as the Stakeholder Representative under this Agreement or any other Transaction Agreement or to pay costs or expenses to be incurred by the Stakeholder Agreement as provided in this Agreement or any other Transaction Agreement. The Stakeholder Representative, from time to time based on its reasonable discretion, shall pay to the Paying Agent or the Company for distribution to the Holders their respective Pro Rata Share of any amount remaining from the Stakeholder Representative Expense Amount. (e) All actions, decisions and instructions of the Stakeholder Representative taken, made or given pursuant to the authority granted to the Stakeholder Representative pursuant to this Section 11.16 shall be conclusive and binding upon each Holder, and no Holder shall have the right to object to, dissent from, protest or otherwise contest the same. (f) Parent and the Company shall be entitled to rely exclusively upon the communications, instructions and decisions of the Stakeholder Representative relating to the foregoing as the communications, instructions or directions of the Holders. The Stakeholder Representative shall have the authority to act as agent for and on behalf of all Holders hereunder and shall be held liable or accountable in any manner for any act or omission of the Stakeholder Representative in such capacity. (g) Notwithstanding anything to the contrary in this Section 11.16, the provisions of this Section 11.16 do not affect any right of Parent (except for rights granted in Section 11-16(f) hereunder) or create any obligation on the part of Parent. The Holders shall bear full responsibility for any and all obligations arising pursuant to this Section 11.16.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Icg Group, Inc.)
Stakeholder Representative. (a) The adoption of this Agreement and the approval of the Merger by the holders Stockholders of Common Stock or acceptance of the Closing Per Share Consideration pursuant to Section 2.6 or Award Payment shall constitute the grant to the Stakeholder Representative of the full power and authority, authority to act as agent and attorney-in-fact, with full power of substitution to act in the name, place and of each HolderRepresented Party’s stead with respect to the transactions contemplated by, and all the terms and provisions of, this Agreement and to act on such HolderRepresented Party’s behalf in any dispute, litigation or arbitration involving this Agreement and to do or refrain from doing all such further acts and things, and execute all such agreements, certificates, instruments or other documents, as the Stakeholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power to (i) execute and deliver the Escrow Agreement (with such modifications or changes therein as to which the Stakeholder Representative, in its sole discretion, shall have consented) and to agree to such amendments or modifications thereto as the Stakeholder Representative, in its sole discretion, determines to be desirable, (ii) interpret the terms and provisions of this Agreement and the documents to be executed and delivered in connection herewith, including Article IX and the Escrow Agreement, (iiiii) execute and deliver and receive deliveries of 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 and the Escrow Agreement, (iviii) receive service of process in connection with any claims under this Agreement or the Escrow Agreement, (viv) agree to negotiate, enter into settlements and compromises of, assume the defense of claims, 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 sole judgment of the Stakeholder Representative for the accomplishment of the foregoing, including taking (v) conduct, control, prosecute and settle the Contingent Litigation Proceeding, and to take all such actions as may be necessary under Article IXor appropriate in the sole judgment of the Stakeholder Representative for the accomplishment of the foregoing, (vi) give and receive notices and communications, (vii) authorize delivery to Parent of funds from the Escrow Stockholder Reserve Account or any portion thereof in satisfaction of any claims brought by Parent for DamagesParent, (viii) receive and distribute the consideration payable hereunder, including payments from the Escrow Stockholder Reserve Account and any earnings and proceeds thereon, (ix) pay expenses incurred in connection with the transactions contemplated hereby out of the Stockholder Reserve Account, (x) holdback from the consideration payable hereunder any amounts necessary or appropriate in the judgment of the Stakeholder Representative, including any expenses to be paid to the Stakeholder Representative by the Stockholders and (ixxi) take all actions (or refrain from taking actions) necessary or appropriate in the judgment of the Stakeholder Representative as agent for and on behalf of the Holders Represented Parties in connection with this Agreement and the Escrow Agreement.
(b) The appointment of the Stakeholder Representative shall be deemed coupled with an interest and is hereby irrevocable. The provisions of this Section 11.16 10.18 are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death or dissolutions, granted by the Holders Represented Parties to the Stakeholder Representative, and shall be binding upon the executors, heirs, legal representatives, successors and assigns of each such HolderRepresented Party.
(c) From time to time when the Stakeholder Representative determines, in the sole judgment of the Stakeholder Representative, that it is holding on behalf of the Holders (through the Stockholder Reserve Account) amounts in excess of that needed to cover the Stakeholder Representative for any Damage, fees, costs or expenses arising (or that may arise) from the performance of the duties of the Stakeholder Representative hereunder, the Stakeholder Representative shall distribute to each Holder such Holder’s Adjusted Share Distribution Amount or Adjusted Option Distribution Amount, as the case may be, of such excess amounts.
(d) The Stakeholder Representative shall act for the Holder Represented Parties on all of the matters set forth in this Agreement in the manner the Stakeholder Representative reasonably believes to be in the best interest of the Holders Represented Parties and consistent with their obligations under this Agreement, and shall not waive, amend or otherwise modify this Agreement, waive any condition contained herein, enter into or execute any agreement, certificate, instrument or other document, or do or refrain from doing any other act or deed, that has the effect of adversely and disproportionately impacting any Holder Represented Party relative to the other Holders Represented Parties in a manner that is inconsistent with the relative rights of such disproportionately impacted Holder Represented Party under this Agreement, without the prior written consent of such HolderRepresented Party. The Stakeholder Representative shall not be responsible to the Holders Represented Parties for any Damages they may suffer by reason of the performance by the Stakeholder Representative of the duties of the Stakeholder Representative under this Agreement, other than loss or damage Damage arising from a willful and knowing violation of the Law or this Agreement by the Stakeholder Representative.
(de) Each Holder Represented Party agrees to indemnify and hold harmless the Stakeholder Representative from, and promptly reimburse the Stakeholder Representative for, any loss, damage, fees, costs or expenses Damages arising from the performance of the duties of the Stakeholder Representative hereunder, including the cost of any legal counsel or accountants retained by the Stakeholder Representative on behalf of the Holders Represented Parties or otherwise, but excluding any loss or damage Damages arising from a willful and knowing violation of the Law or this Agreement by the Stakeholder Representative. All expenses, if any, incurred by the Stakeholder Representative in connection with the performance of its duties as the Stakeholder Representative will be borne and paid by the Holders according to their Pro Rata Share. In furtherance of the foregoing, the Stakeholder Representative shall hold the Stakeholder Representative Expense Amount in a dedicated account for the benefit of the Holders and use the Stakeholder Representative Expense Amount to pay for any costs and expenses reasonably incurred by the Stakeholder Representative in carrying out its duties as the Stakeholder Representative under this Agreement or any other Transaction Agreement or to pay costs or expenses to be incurred by the Stakeholder Agreement as provided in this Agreement or any other Transaction Agreement. The Stakeholder Representative, from time to time based on its reasonable discretion, shall pay to the Paying Agent or the Company for distribution to the Holders their respective Pro Rata Share of any amount remaining from the Stakeholder Representative Expense Amount.
(ef) All actions, decisions and instructions of the Stakeholder Representative taken, made or given pursuant to the authority granted to the Stakeholder Representative pursuant to this Section 11.16 10.18 shall be conclusive and binding upon each HolderRepresented Party, and no Holder Represented Party shall have the right to object to, dissent from, protest or otherwise contest the same.
(fg) Parent and the Company shall be entitled to rely exclusively upon the communications, instructions and decisions communications of the Stakeholder Representative relating to the foregoing as the communications, instructions or directions communications of the HoldersRepresented Parties. The Neither Parent nor the Company (x) need be concerned with the authority of the Stakeholder Representative shall have the authority to act as agent for and on behalf of all Holders Represented Parties hereunder and or (y) shall be held liable or accountable in any manner for any act or omission of the Stakeholder Representative in such capacity.
(gh) Notwithstanding anything to the contrary in this Section 11.1610.18, the provisions of this Section 11.16 10.18 do not affect any right of Parent (except for rights granted in Section 11-16(f) hereunder) hereunder or create any obligation on the part of Parent. The Holders Represented Parties shall bear full responsibility for any and all obligations arising pursuant to this Section 11.1610.18.
Appears in 1 contract
Samples: Merger Agreement (Kbr, Inc.)
Stakeholder Representative. (a) The adoption of this Agreement Each Stakeholder immediately prior to the Effective Time shall be deemed to have irrevocably constituted, appointed, authorized, directed and the approval of the Merger by the holders of Common Stock or acceptance empowered, effective as of the Closing Per Share Consideration pursuant (and without regard to Section 2.6 or Award Payment shall constitute whether such Stakeholder has delivered a duly executed Letter of Transmittal), Shareholder Representative Services LLC as the grant to the “Stakeholder Representative of the full power and authorityRepresentative”, to act as agent sole and exclusive agent, attorney-in-factfact and representative of the Stakeholders, with full power of substitution to act in the namesubstitution, place and of each Holder’s stead with respect to all matters under this Agreement and the transactions contemplated byagreements ancillary hereto, including giving and all receiving notices hereunder, entering into any amendment or modification hereof, engaging special counsel, accountants or other advisors or incurring such other expenses on behalf of the Stakeholders, holding back from disbursement to any Stakeholder any such funds to the extent it reasonably determines may be necessary or required under the terms and provisions of, conditions of this Agreement or applicable Law, negotiating, settling, compromising or otherwise resolving any dispute hereunder (including any disputes relating to the Adjustment Amount) or doing any and to act on such Holder’s behalf all things and taking any and all actions, in any dispute, litigation or arbitration involving this Agreement and to do or refrain from doing all such further acts and things, and execute all such agreements, certificates, instruments or other documents, as the Stakeholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power to (i) execute and deliver the Escrow Agreement (with such modifications or changes therein as to which each case that the Stakeholder Representative, in its sole and absolute discretion, shall have consented) and to agree to such amendments may consider necessary or modifications thereto as the Stakeholder Representative, in its sole discretion, determines to be desirable, (ii) interpret the terms and provisions of this Agreement and the documents to be executed and delivered in connection herewith, including Article IX and the Escrow Agreement, (iii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required proper or permitted to be given convenient in connection with the consummation of or to carry out the transactions contemplated by this Agreement and the Escrow Agreement, (iv) receive service of process or any other documents or instruments entered into in connection with herewith. The Stakeholder Representative may resign at any claims under this Agreement or time, in which case the Escrow Agreement, Stakeholders holding a majority of shares of Common Stock immediately prior to the Closing shall have the right to appoint a replacement Stakeholder Representative.
(vb) agree to negotiate, enter into settlements and compromises of, assume the defense of claims, 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 sole judgment of Neither the Stakeholder Representative for the accomplishment nor any of the foregoingits officers, including taking all such actions as may be necessary under Article IXdirectors, (vi) give and receive notices and communicationsmanagers, (vii) authorize delivery employees, agents or representatives shall incur any responsibility or liability whatsoever to Parent any Stakeholder by reason of funds from the Escrow Account any error in judgment or any portion thereof in satisfaction of claims brought by Parent for Damages, (viii) receive and distribute the consideration payable hereunder, including payments from the Escrow Account and any earnings and proceeds thereon, and (ix) take all actions (other act or refrain from taking actions) necessary omission performed or appropriate in the judgment of the Stakeholder Representative as agent for and on behalf of the Holders omitted hereunder or in connection with this Agreement or any such other agreement, instrument or document, except to the extent any act or failure to act constitutes Fraud or willful misconduct. The Stakeholder Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue. The Stakeholder Representative shall not be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement. The Stakeholders shall indemnify, defend and hold harmless the Stakeholder Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Stakeholder Representative’s execution and performance of this Agreement and the agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided that, in the event that any such Representative Loss is finally adjudicated to have been directly caused by the Fraud or willful misconduct of the Stakeholder Representative, the Stakeholder Representative will reimburse the Stakeholders the amount of such indemnified Representative Loss to the extent attributable to such Fraud or willful misconduct. If not paid directly to the Stakeholder Representative by the Stakeholders, any such Representative Losses may be recovered by the Stakeholder Representative from (i) the funds in the Stakeholder Representative Expense Fund and (ii) the amounts in the Purchase Price Escrow Fund at such time as remaining amounts would otherwise be distributable to the Stakeholders; provided that, while this Section 10.11 allows the Stakeholder Representative to be paid from the Stakeholder Representative Expense Fund and the Purchase Price Escrow Fund, this does not relieve the Stakeholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Stakeholder Representative from seeking any remedies available to it at law or otherwise. Notwithstanding anything to the contrary in this Agreement.
(b) , in no event will the Stakeholder Representative be required to advance its own funds on behalf of the Stakeholders or otherwise. The appointment Stakeholder Representative may consult with counsel of its own choice and will have full and complete authorization and protection for any action taken and suffered by it in good faith and in accordance with the opinion of such counsel. The indemnity obligations of this Section 10.11 shall survive the Closing, the resignation or removal of the Stakeholder Representative shall be deemed coupled with an interest and is hereby irrevocable. The provisions or any termination of this Agreement pursuant to Section 11.16 are independent and severable9.1. For the avoidance of doubt, shall constitute an irrevocable power the last sentence of attorney, coupled with an interest and surviving death or dissolutions, granted by the Holders Section 10.16 is not intended to be applicable to the Stakeholder Representative, and ’s rights under this paragraph. In no event shall Parent or any of its Subsidiaries be binding upon responsible for the executors, heirs, legal representatives, successors and assigns payment of each such Holderany Representative Loss.
(c) The Stakeholder Representative shall act for the Holder on all of the matters set forth in this Agreement in the manner be entitled to pay and reimburse itself from the Stakeholder Representative reasonably believes to be Expense Fund for any third-party, out-of-pocket expenses, charges or liabilities that the Stakeholder Representative incurs, or may incur, in the best interest exercise of the Holders and consistent with their obligations it rights, or performance of its duties, under this Agreement, and shall not waive, amend or otherwise modify this Agreement, waive any condition contained herein, enter into or execute any agreement, certificate, instrument or other document, or do or refrain from doing any other act or deed, that has the effect of adversely and disproportionately impacting any Holder relative to the other Holders in a manner that is inconsistent with the relative rights of such disproportionately impacted Holder under this Agreement, without the prior written consent of such Holder. The Stakeholder Representative shall not be responsible to the Holders for any Damages they may suffer by reason of the performance by the Stakeholder Representative of the duties of the Stakeholder Representative under this Agreement, other than loss or damage arising from a willful and knowing violation of the Law or this Agreement by the Stakeholder Representative.
(d) Each Holder agrees of Parent and Merger Sub shall have the right to indemnify and hold harmless the Stakeholder Representative from, and promptly reimburse the Stakeholder Representative for, any loss, damage, fees, costs rely upon all actions taken or expenses arising from the performance of the duties of the Stakeholder Representative hereunder, including the cost of any legal counsel or accountants retained omitted to be taken by the Stakeholder Representative on behalf of the Holders hereunder or otherwise, but excluding any loss or damage arising from a willful and knowing violation of the Law or this Agreement by the Stakeholder Representative. All expenses, if any, incurred by the Stakeholder Representative in connection with the performance of its duties as the Stakeholder Representative will be borne and paid by the Holders according to their Pro Rata Share. In furtherance of the foregoing, the Stakeholder Representative shall hold the Stakeholder Representative Expense Amount in a dedicated account for the benefit of the Holders and use the Stakeholder Representative Expense Amount to pay for any costs and expenses reasonably incurred by the Stakeholder Representative in carrying out its duties as the Stakeholder Representative under this Agreement or any other Transaction Agreement or to pay costs or expenses to be incurred by the Stakeholder Agreement as provided in this Agreement or any other Transaction Agreement. The Stakeholder RepresentativeAll decisions, from time to time based on its reasonable discretion, shall pay to the Paying Agent or the Company for distribution to the Holders their respective Pro Rata Share of any amount remaining from the Stakeholder Representative Expense Amount.
(e) All actions, decisions consents and instructions of the Stakeholder Representative takenauthorized to be made, made taken or given pursuant to the authority granted to the Stakeholder Representative pursuant to this Section 11.16 10.11 shall be conclusive final and binding upon each Holderall the Stakeholders, and no Holder Stakeholder shall have the any right to object toobject, dissent fromdissent, protest or otherwise contest the same.
(fe) Parent At the Closing, pursuant to Section 2.3(a)(iv), Parent, EHSI and Merger Sub shall deliver to such account or accounts as the Company Stakeholder Representative shall specify the Stakeholder Representative Expense Fund, to be held to cover and reimburse the fees, expenses and other monetary obligations incurred by the Stakeholder Representative in connection with the carrying out by the Stakeholder Representative of its duties under this Section 10.11. The Stakeholder Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Stakeholder Representative for, any third party expenses pursuant to this Agreement and any agreements ancillary hereto. The Stakeholders will not receive any interest or earnings on the Stakeholder Representative Expense Fund and irrevocably transfer and assign to the Stakeholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stakeholder Representative will not be liable for any loss of principal of the Stakeholder Representative Expense Fund other than as a result of its gross negligence or willful misconduct. The Stakeholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stakeholder Representative’s responsibilities, the Stakeholder Representative will deliver (or will cause to be delivered) the balance of the Stakeholder Representative Expense Fund to the Escrow Agent for further distribution to the Stakeholder Representative in accordance with Section 3.9. In the event that any amount is owed to the Stakeholder Representative, whether for fees, expense reimbursement or indemnification, that is in excess of the amounts remaining in the Stakeholder Representative Expense Fund, the Stakeholder Representative shall be entitled to rely exclusively upon be reimbursed by the communicationsStakeholders on a pro rata basis, instructions and decisions the Stakeholders agree to so reimburse the Stakeholder Representative; provided, that for the avoidance of doubt, the aggregate of the applicable pro rata shares of all of the Stakeholders shall in all cases sum to 100%. Upon written notice from the Stakeholder Representative relating to the foregoing Stakeholders as the communicationsto any such owed amount, instructions or directions of the Holders. The including a reasonably detailed description as to such owed amount, each Stakeholder Representative shall have the authority promptly deliver to act as agent for and on behalf of all Holders hereunder and shall be held liable or accountable in any manner for any act or omission of the Stakeholder Representative in full payment of his, her or its pro rata share of such capacity.
(g) Notwithstanding anything to the contrary in this Section 11.16owed amount. For tax purposes, the provisions Stakeholder Representative Expense Fund will be treated as having been received and voluntarily set aside by the Stakeholders at the time of this Section 11.16 do not affect any right of Parent (except for rights granted in Section 11-16(f) hereunder) or create any obligation on the part of Parent. The Holders shall bear full responsibility for any and all obligations arising pursuant to this Section 11.16Closing.
Appears in 1 contract
Stakeholder Representative. (a) The adoption of this Agreement the Transaction Agreements and the approval of the Merger by the holders of Common Stock or acceptance of Seller and the Closing Per Share Consideration pursuant to Section 2.6 or Award Payment Stockholders shall constitute the grant to the Stakeholder Representative of the full power and authority, authority to act as agent and attorney-in-fact, with full power of substitution substitution, to act in the name, place and stead of each Holder’s stead Holder with respect to the transactions contemplated by, and all the terms and provisions of, this Agreement the Transaction Agreements and to act on such Holder’s behalf in any dispute, litigation or arbitration involving this Agreement the Transaction Agreements and to do or refrain from doing all such further acts and things, and execute all such agreements, certificates, instruments or other documents, as the Stakeholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreementthe Transaction Agreements (except in the case of those Transaction Agreements set forth on Section 12.18(a) of the Company Disclosure Letter), including the power to (i) execute and deliver the Escrow Agreement (with such modifications or changes therein as to which the Stakeholder Representative, in its sole discretion, shall have consented) and to agree to such amendments or modifications thereto as the Stakeholder Representative, in its sole discretion, determines to be desirable, (ii) interpret the terms and provisions of this Agreement the Transaction Agreements and the documents to be executed and delivered in connection herewith, including Article IX and the Escrow Agreement, (iiiii) execute and deliver and receive deliveries of 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 and the Escrow AgreementTransaction Agreements, (iviii) receive service of process in connection with any claims under this Agreement or the Escrow AgreementTransaction Agreements, (viv) agree to negotiate, enter into settlements and compromises of, assume the defense of claims, 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 sole judgment of the Stakeholder Representative for the accomplishment of the foregoing, including taking all such actions as may be necessary under Article IX, (viv) give and receive notices and communications, (viivi) authorize delivery to Parent Purchaser of funds from the Escrow Account or any portion thereof in satisfaction of claims brought by Parent for Damagesaccordance with Section 2.8(d), (viiivii) receive and distribute the consideration payable hereunder, including payments from the Escrow Account Account, the Stakeholder Representative Holdback Amount and any earnings and proceeds thereon, (viii) holdback from the consideration payable hereunder any amounts necessary or appropriate in the judgment of the Stakeholder Representative, including any expenses to be paid to the Stakeholder Representative by the Holders and (ix) take all actions (or refrain from taking actions) necessary or appropriate in the judgment of the Stakeholder Representative as agent for and on behalf of the Holders in connection with this Agreement and the Escrow AgreementTransaction Agreements.
(b) The appointment of the Stakeholder Representative shall be deemed coupled with an interest and is hereby irrevocable. The provisions of this Section 11.16 12.18 are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death or dissolutions, granted by the Holders to the Stakeholder Representative, and shall be binding upon the executors, heirs, legal representativesRepresentatives, successors and assigns of each such Holder.
(c) The Except as expressly set forth in Section 12.18(a), the Stakeholder Representative shall act for the Holder Holders on all of the matters set forth in this Agreement the Transaction Agreements in the manner the Stakeholder Representative reasonably believes to be in the best interest of the Holders and consistent with their obligations under this Agreementthe Transaction Agreements, and shall not waive, amend or otherwise modify this Agreementthe Transaction Agreements, waive any condition contained hereintherein, enter into or execute any agreement, certificate, instrument or other document, or do or refrain from doing any other act or deed, that has the effect of adversely and disproportionately impacting any Holder relative to the other Holders in a manner that is inconsistent with the relative rights of such disproportionately impacted Holder under this any Transaction Agreement, without the prior written consent of such Holder. The Stakeholder Representative shall not be responsible to the Holders for any Damages damages, losses or other liabilities they may suffer by reason of the performance by the Stakeholder Representative of the duties of the Stakeholder Representative under this any Transaction Agreement, other than loss or damage arising from a willful and knowing violation of the Law or this a Transaction Agreement by the Stakeholder Representative.
(d) Each of the Seller, Holdings and the Company authorize the Stakeholder Representative to establish, out of the Closing Cash Consideration, the Stakeholder Representative Holdback Amount, to be funded by the Stakeholder Representative’s deposit of funds into an account to be managed by the Stakeholder Representative. The Stakeholder Representative shall establish a bank account in the Stakeholder Representative’s name and the Stakeholder Representative Holdback Amount shall be deposited in such account and held by the Stakeholder Representative as agent and for the benefit of the Holders in a segregated client account. The Stakeholder Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The Stakeholder Representative is not providing any investment supervision, recommendations or advice. The Stakeholder Representative shall have no responsibility or liability for any loss of principal of the Stakeholder Representative Holdback Amount, and has no tax reporting or income distribution obligations hereunder. The Stakeholder Representative shall have the authority to, using funds from the Stakeholder Representative Holdback Amount, pay directly or reimburse the Stakeholder Representative for any out-of-pocket costs (including any legal and accounting fees) incurred by the Stakeholder Representative in carrying out its obligations or exercising any of its rights hereunder (collectively the “Stakeholder Representative Expenses”). Such Stakeholder Representative Expenses may be recovered first, from the Stakeholder Representative Holdback Amount, second, from any Distribution of the Escrow Amount otherwise distributable to the Holders at the time of such Distribution, and third, directly from the Holders on a pro rata basis in accordance with the proceeds received pursuant to Section 2.8(d). Within five (5) Business Days after the payment of the Final Adjustment Amount, the Stakeholder Representative shall distribute to each of the Holders of Common Stock, Company Options and Company RSUs, in accordance with each such Holder’s entitlement to a Distribution in accordance with the terms of this Agreement, any portion of the Stakeholder Representative Holdback Amount that is unused less any reserve that the Stakeholder Representative reasonably determines is necessary for any out-of-pocket costs that the Stakeholder Representative may reasonably expect to arise; provided that any portion of such Distribution payable in respect of Company Options and Company RSUs shall instead be remitted by the Stakeholder Representative to the Surviving Corporation or one of its Subsidiaries for payment to the applicable Holders through its payroll system (less all applicable withholding Taxes and deductions).
(e) Each Holder agrees to indemnify and hold harmless the Stakeholder Representative from, and promptly reimburse the Stakeholder Representative for, any loss, damage, fees, costs or expenses arising from the performance of the duties of the Stakeholder Representative hereunder, including the cost of any legal counsel or accountants retained by the Stakeholder Representative on behalf of the Holders or otherwise, but excluding any loss or damage arising from a willful and knowing violation of the Law or this any Transaction Agreement by the Stakeholder Representative. All expenses, if any, incurred by the Stakeholder Representative in connection with the performance of its duties as the Stakeholder Representative will be borne and paid by the Holders according to their Pro Rata Share. In furtherance of the foregoing, the Stakeholder Representative shall hold the Stakeholder Representative Expense Amount in a dedicated account for the benefit of the Holders and use the Stakeholder Representative Expense Amount to pay for any costs and expenses reasonably incurred by the Stakeholder Representative in carrying out its duties as the Stakeholder Representative under this Agreement or any other Transaction Agreement or to pay costs or expenses to be incurred by the Stakeholder Agreement as provided in this Agreement or any other Transaction Agreement. The Stakeholder Representative, from time to time based on its reasonable discretion, shall pay to the Paying Agent or the Company for distribution to the Holders their respective Pro Rata Share of any amount remaining from the Stakeholder Representative Expense Amount.
(ef) All actions, decisions and instructions of the Stakeholder Representative taken, made or given pursuant to the authority granted to the Stakeholder Representative pursuant to this Section 11.16 12.18 shall be conclusive and binding upon each Holder, and no Holder shall have the right to object to, dissent from, protest or otherwise contest the same.
(fg) Parent Each of the Seller, Holdings, the Company, the Surviving Corporation and the Company Purchaser shall be entitled to rely exclusively and conclusively upon the communicationsactions, instructions omissions, decisions and decisions communications of the Stakeholder Representative relating to the foregoing as the communicationsactions, instructions omissions, decisions or directions communications of the Holders (including any action taken or purported to be taken by or on behalf of any Holder) without any Liability to, or obligation to inquire of, any Holder, notwithstanding any knowledge on the part of such Person of any such dispute or disagreement and all of which actions or omissions shall be legally binding upon the Holders. The None of the Seller, Holdings, the Company, the Surviving Corporation and the Purchaser (i) need be concerned with the authority of the Stakeholder Representative shall have the authority to act as agent for and on behalf of all Holders hereunder and or (ii) shall be held liable or accountable in any manner for any act or omission of the Stakeholder Representative in such capacity. For the avoidance of doubt, no Person shall have any cause of action against Purchaser, Holdings or any Acquired Company for any action taken by Purchaser, Holdings or any Acquired Company to the extent such action was taken in accordance with the instructions of the Stakeholder Representative.
(gh) Notwithstanding anything to the contrary in this Section 11.1612.18, the provisions of this Section 11.16 12.18 do not affect any right of Parent (except for rights granted in Section 11-16(f) hereunder) Purchaser hereunder or create any obligation on the part of ParentPurchaser. The Holders shall bear full responsibility for any and all obligations arising pursuant to this Section 11.1612.18.
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Stakeholder Representative. (a) The By voting in favor of the adoption of this Agreement and Agreement, the approval of the Merger by the holders of Common Stock or acceptance principal terms of the Closing Per Share Consideration pursuant to Section 2.6 or Award Payment shall constitute Merger, and the grant to the Stakeholder Representative consummation of the full power and authority, to act as agent and attorney-in-fact, with full power of substitution to act Merger or participating in the nameMerger and receiving the benefits thereof, place including the right to receive the consideration payable in connection with the Merger, each Target Stockholder and of each Holder’s stead with respect Bridge Lender shall be deemed to have approved the transactions contemplated bydesignation of, and all the terms and provisions ofhereby designates, this Agreement and to act on such Holder’s behalf in any dispute, litigation or arbitration involving this Agreement and to do or refrain from doing all such further acts and things, and execute all such agreements, certificates, instruments or other documents, Shareholder Representative Services LLC as the Stakeholder Representative shall deem necessary or appropriate in connection with under the transactions contemplated by this Agreementterms set forth herein to give and receive notices and communications, including the power to (i) execute and deliver authorize delivery to Acquiror of cash from the Escrow Agreement (with Fund in satisfaction of claims by Acquiror, to object to such modifications or changes therein as to which the Stakeholder Representativedeliveries, in its sole discretion, shall have consented) and to agree to such amendments or modifications thereto as the Stakeholder Representativeto, in its sole discretion, determines to be desirable, (ii) interpret the terms and provisions of this Agreement and the documents to be executed and delivered in connection herewith, including Article IX and the Escrow Agreement, (iii) execute and deliver and receive deliveries of 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 and the Escrow Agreement, (iv) receive service of process in connection with any claims under this Agreement or the Escrow Agreement, (v) agree to negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims claims, and to take all actions necessary or appropriate in the sole judgment of the Stakeholder Representative for the accomplishment of the foregoing. If the Stakeholder Representative shall die, including taking all such actions as be removed by the written direction of the holders of a majority in interest of the Escrow Fund, become disabled, resign or otherwise be unable to fulfill its responsibilities hereunder, a new Stakeholder Representative may be necessary under Article IX, (vi) give and receive notices and communications, (vii) authorize delivery to Parent designated by the holders of funds from a majority in interest of the Escrow Account Fund upon not less than 10 days’ prior written notice to Acquiror. No bond shall be required of the Stakeholder Representative, and the Stakeholder Representative shall receive no compensation for its services from Target, Acquiror or any portion thereof in satisfaction of claims brought by Parent for Damagestheir Affiliates after the Effective Time, (viii) receive and distribute other than pursuant to the consideration payable hereunder, including payments from the Escrow Account and any earnings and proceeds thereon, and (ix) take all actions (or refrain from taking actions) necessary or appropriate in the judgment terms of the Stakeholder Representative as agent for Agreement entered into between Shareholder Representative Services LLC, Target and on behalf certain of the Holders Target Stockholders on or about the date hereof. Notices or communications to or from the Stakeholder Representative shall constitute notice to or from each of the Target Stockholders and Bridge Lenders. Each Target Stockholder and Bridge Lender agrees to receive correspondence from the Stakeholder Representative, including in connection with this Agreement and the Escrow Agreementelectronic form.
(b) The appointment Stakeholder Representative shall not be liable for any act done or omitted hereunder as Stakeholder Representative while acting in good faith and without gross negligence or willful misconduct and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Target Stockholders and Bridge Lenders shall jointly and severally indemnify and hold the Stakeholder Representative harmless against any loss, liability or expense incurred without gross negligence or willful misconduct on the part of the Stakeholder Representative shall be deemed coupled and arising out of or in connection with an interest and the acceptance or administration of its duties hereunder, in each case as such loss, liability or expense is hereby irrevocable. The provisions of this Section 11.16 are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death or dissolutions, granted by the Holders to the Stakeholder Representative, and shall be binding upon the executors, heirs, legal representatives, successors and assigns of each such Holderincurred.
(c) The Stakeholder Representative shall act have reasonable access to information about Target, including in electronic form to the extent reasonably available, for purposes of performing his duties and exercising his rights hereunder. The Stakeholder Representative and its members, managers, directors, officers, agents and employees shall treat confidentially and not disclose any nonpublic information from or about Target or Acquiror.
(d) Prior to and upon the Holder on all Termination Date the Stakeholder Representative shall be entitled to recover such expenses from the Representative Fund in accordance with the terms of the matters Escrow Agreement. Upon the Termination Date and to the extent not paid directly by the Target Stockholders and the Bridge Lenders, the Stakeholder Representative shall be entitled to reimbursement of all reasonable expenses incurred by it in connection with fulfilling its duties as set forth in this Agreement from the Representative Fund in accordance with the manner terms of the Escrow Agreement and from the Escrow Fund, but only to the extent of the Escrow Amount that remains available for distribution after satisfaction of all obligations to Acquiror Indemnified Persons (including any potential obligations and pending claims) pursuant to Section 9 hereof; provided that while this section allows the Stakeholder Representative reasonably believes to be in paid from the best interest of Escrow Fund, this does not relieve the Holders and consistent with Target Stockholders or Bridge Lenders from their obligations under this Agreementobligation to pay such losses, and shall not waiveliabilities or expenses, amend or otherwise modify this Agreement, waive any condition contained herein, enter into or execute any agreement, certificate, instrument or other document, or do or refrain from doing any other act or deed, that has the effect of adversely and disproportionately impacting any Holder relative to the other Holders in a manner that is inconsistent with the relative rights of such disproportionately impacted Holder under this Agreement, without the prior written consent of such Holder. The Stakeholder Representative shall not be responsible to the Holders for any Damages they may suffer by reason of the performance by nor does it prevent the Stakeholder Representative of the duties of the Stakeholder Representative under this Agreement, other than loss or damage arising from a willful and knowing violation of the Law or this Agreement by the Stakeholder Representative.
(d) Each Holder agrees seeking any remedies available to indemnify and hold harmless the Stakeholder Representative from, and promptly reimburse the Stakeholder Representative for, any loss, damage, fees, costs or expenses arising from the performance of the duties of the Stakeholder Representative hereunder, including the cost of any legal counsel or accountants retained by the Stakeholder Representative on behalf of the Holders or otherwise, but excluding any loss or damage arising from a willful and knowing violation of the Law or this Agreement by the Stakeholder Representative. All expenses, if any, incurred by the Stakeholder Representative in connection with the performance of its duties as the Stakeholder Representative will be borne and paid by the Holders according to their Pro Rata Share. In furtherance of the foregoing, the Stakeholder Representative shall hold the Stakeholder Representative Expense Amount in a dedicated account for the benefit of the Holders and use the Stakeholder Representative Expense Amount to pay for any costs and expenses reasonably incurred by the Stakeholder Representative in carrying out its duties as the Stakeholder Representative under this Agreement or any other Transaction Agreement or to pay costs or expenses to be incurred by the Stakeholder Agreement as provided in this Agreement or any other Transaction Agreement. The Stakeholder Representative, from time to time based on its reasonable discretion, shall pay to the Paying Agent or the Company for distribution to the Holders their respective Pro Rata Share of any amount remaining from the Stakeholder Representative Expense Amount.
(e) All actions, decisions and instructions of the Stakeholder Representative taken, made or given pursuant to the authority granted to the Stakeholder Representative pursuant to this Section 11.16 shall be conclusive and binding upon each Holder, and no Holder shall have the right to object to, dissent from, protest it at law or otherwise contest against the sameTarget Stockholders or Bridge Lenders.
(f) Parent and the Company shall be entitled to rely exclusively upon the communications, instructions and decisions of the Stakeholder Representative relating to the foregoing as the communications, instructions or directions of the Holders. The Stakeholder Representative shall have the authority to act as agent for and on behalf of all Holders hereunder and shall be held liable or accountable in any manner for any act or omission of the Stakeholder Representative in such capacity.
(g) Notwithstanding anything to the contrary in this Section 11.16, the provisions of this Section 11.16 do not affect any right of Parent (except for rights granted in Section 11-16(f) hereunder) or create any obligation on the part of Parent. The Holders shall bear full responsibility for any and all obligations arising pursuant to this Section 11.16.
Appears in 1 contract
