Stockholder Representatives. (a) The parties hereto agree that it is desirable to designate TA Associates Management, L.P. and Xxxxx Xxxx as the representatives of the Company’s stockholders and optionholders and their attorneys in fact (each a “Stockholder Representative” and collectively, the “Stockholder Representatives”), with full power of substitution to act on behalf of the Company’s stockholders and optionholders (only with respect to their interests as stockholders and optionholders under this Agreement and the Escrow Agreement) to the extent and in the manner set forth in this Agreement and the Escrow Agreement but not with respect to any amendments to this Agreement or the Escrow Agreement. The Company has designated the Stockholder Representatives as the representatives of the Company’s stockholders and optionholders for purposes of this Agreement and the Escrow Agreement, and approval of this Agreement and the Merger by such holders shall constitute ratification and approval of such designation on the terms set forth herein. All decisions, actions, consents and instructions by the Stockholder Representatives with respect to this Agreement and the Escrow Agreement (but not with respect to any amendments hereto or thereto) shall be binding upon all of the stockholders and optionholders of the Company with respect to their interests as stockholders and optionholders under this Agreement and the Escrow Agreement, and no such stockholder shall have the right to object to, dissent from, protest or otherwise contest the same. The Stockholder Representatives shall act in unanimity with respect to any decision, action, consent or instruction contemplated by this Agreement and in all communications with the Acquiror and the Sub, and the Acquiror and Sub shall be entitled to rely on any such decision, action, consent or instruction as being the decision, action, consent or instruction of the Company’s stockholders and optionholders, and the Acquiror and Sub are hereby relieved from any liability to any Person for acts done by them in accordance with any such decision, act, consent or instruction. By way of amplification and not limitation, as Stockholder Representatives, the Stockholder Representatives shall be authorized and empowered, as agents of and on behalf of all stockholders and optionholders of the Company (only with respect to their interests as stockholders and optionholders) to give and receive notices and communications as provided herein, to object to any Acquiror Indemnification Claims, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims or Losses, to waive after the Effective Time any breach or default of the Acquiror or Sub of any obligation to be performed by it under this Agreement, to receive service of process on behalf of each stockholder and optionholder of the Company in connection with any claims against such stockholder or optionholder arising under or in connection with this Agreement, any document or instrument provided for hereby (other than Employment Agreements, Non-Competition Agreements and Non-Solicitation Agreements) or any of the transactions contemplated hereby or under any Ancillary Agreement, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representatives for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Notices or communications to or from both of the Stockholder Representatives shall constitute notice to or from the stockholders and optionholders of the Company. (b) A Stockholder Representative may resign at any time, and in the event of the death, incapacity or resignation of a Stockholder Representative, a new Stockholder Representative may be appointed by the vote or written consent of stockholders holding a majority of the aggregate Fully Diluted Shares immediately prior to the Effective Time, except that, with respect to any resignation, death, or incapacity of Xxxxx Xxxx as a Stockholder Representative, the holders of a majority of the outstanding shares of Class A Common Stock as of the date hereof shall have the right to appoint such replacement Stockholder Representative. Notice of such vote or a copy of the written consent appointing such new Stockholder Representative shall be sent to the Acquiror and, after the Effective Time, to the Surviving Corporation, such appointment to be effective upon the later of the date indicated in such consent and the date such consent is received by the Acquiror and, after the Effective Time, the Surviving Corporation; provided that until such notice is received, the Acquiror, Sub and the Surviving Corporation, as applicable, shall be entitled to rely on the decisions, actions, consents and instructions of the prior Stockholder Representative as described in Section 2.11(a). Each Stockholder Representative may charge a reasonable fee, not to exceed $50,000 per Stockholder Representative per year, for his or its services subject to the approval of the other Stockholder Representative; provided that all fees and expenses incurred by the Stockholder Representatives in performing his or its duties hereunder (including legal fees and expenses related thereto) and any indemnification in favor of the Stockholder Representatives shall be borne by the stockholders and optionholders of the Company (other than holders of Dissenting Shares) pro rata in accordance with the portion of the Merger Consideration each such stockholder or optionholder would otherwise have been entitled to receive under Section 2.9(c), by virtue of the ownership of outstanding Shares or options immediately prior to the Effective Time (each such stockholder’s and optionholder’s pro rata interest, a “Pro Rata Share”) in the manner provided in the Escrow Agreement. (c) In dealing with this Agreement and any notice, instrument, agreement or document relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholder Representatives hereunder or thereunder, (i) the Stockholder Representatives and his or its agents, counsel, accountants and other representatives shall not assume any, and shall not incur any, responsibility whatsoever (in each case, to the extent permitted by applicable Law) to any stockholder or optionholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation, including, without limitation, by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or any such other agreement, instrument or document, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted willful misconduct or fraud, and (ii) the Stockholder Representatives shall be entitled to rely in good faith on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholder Representatives pursuant to such advice shall in no event subject the Stockholder Representatives to liability to any stockholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation. Except in cases where a court of competent jurisdiction has made such a finding, the stockholders and optionholders of the Company shall on a pro rata basis (based on each such stockholder’s and optionholder’s Pro Rata Share) indemnify and hold harmless the Stockholder Representatives from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with his or its activities as the Stockholder Representatives under this Agreement, the Escrow Agreement or otherwise. (d) The grant of authority provided for in this Section 2.11 (i) is coupled with an interest and is being granted, in part, as an inducement to the Acquiror and Sub to enter into this Agreement and the Escrow Agreement, and shall be irrevocable and survive the dissolution, liquidation or bankruptcy of the Company or the death, incompetency, liquidation or bankruptcy of any stockholder or optionholder of the Company, shall be binding on any successor thereto and (ii) shall survive the assignment by any stockholder or optionholder of the Company of the whole or any portion of his, her or its interest in the Escrow Fund. (e) In connection with the performance of his or its obligations hereunder, the Stockholder Representatives shall have the right, acting together, at any time and from time to time to select and engage, at the cost and expense of the stockholders and optionholders of the Company (as contemplated by Section 2.11(b)), attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as he or it may deem necessary or desirable and incur other out-of-pocket expenses related to performing his or its services hereunder. (f) All of the immunities and powers granted to the Stockholder Representatives under this Agreement with respect to this Agreement and the Escrow Agreement shall survive the Closing and/or any termination of this Agreement, except that such powers shall terminate upon termination of this Agreement.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Infospace Inc), Merger Agreement (H&r Block Inc)
Stockholder Representatives. (a) The parties hereto agree that it is desirable to designate TA Associates Management, L.P. each of Xxxx Xxxxxxxx and Xxxxx Xxxx Xxx Xxxxxxxxx as the representatives a representative of the Company’s stockholders Securityholders and optionholders and as their attorneys attorney in fact (each each, a “Stockholder Representative” and collectively, the “Stockholder Representatives”), with full power of substitution to act on behalf of the Company’s stockholders and optionholders (only with respect to their interests as stockholders and optionholders under this Agreement and the Escrow Agreement) Securityholders to the extent and in the manner set forth in this Agreement and the Escrow Agreement but not with respect to any amendments to this Agreement or the Escrow AgreementTransaction Documents. The Company has designated the Stockholder Representatives as the representatives of the Company’s stockholders and optionholders Securityholders for purposes of this Agreement and the Escrow AgreementTransaction Documents, and approval of this Agreement and the Merger by such holders pursuant to the Stockholder Written Consent and each Letter of Transmittal shall constitute ratification and approval of such designation on the terms set forth hereinherein and therein. All decisions, actions, consents and instructions by the any Stockholder Representatives Representative with respect to this Agreement and the Escrow Agreement (but not with respect to any amendments hereto or thereto) Transaction Documents shall be binding upon all of the stockholders Securityholders in their capacities as such at and optionholders of following the Company with respect to their interests as stockholders and optionholders Effective Time under this Agreement and the Escrow AgreementTransaction Documents, and no such stockholder Securityholder shall have the right to object to, dissent from, protest or otherwise contest the same. The Stockholder Representatives shall act in unanimity with respect to any decision, action, consent or instruction contemplated by this Agreement and in all communications with the Acquiror and the Sub, and the Acquiror Parent and Sub shall be entitled to rely on any such decision, action, consent or instruction of any Stockholder Representative as being the decision, action, consent or instruction of the Company’s stockholders and optionholdersSecurityholders, and the Acquiror Parent and Sub are hereby relieved from any liability to any Person person for acts done by them in accordance with any such decision, act, consent or instruction. By way of amplification and not limitation, as a Stockholder RepresentativesRepresentative, the each Stockholder Representatives Representative shall be authorized and empowered, as agents agent of and on behalf of all stockholders and optionholders of the Company (only with respect to their interests as stockholders and optionholders) Securityholders to give and receive notices and communications as provided herein, to object to any Acquiror Parent Indemnification Claims, purchase price adjustments or matters related to the Earn-out Consideration, the Earn-out Bonuses and the Discretionary Bonuses, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims Parent Indemnification Claims, Losses, purchase price adjustments or Lossesmatters related to the Earn-out Consideration, the Earn-out Bonuses and the Discretionary Bonuses, to waive after the Effective Time any breach or default of the Acquiror Parent or Sub of any obligation to be performed by it under this Agreement, to receive service of process on behalf of each stockholder and optionholder of the Company Securityholder in connection with any claims against such stockholder or optionholder Securityholder arising under or in connection with this Agreement, any document or instrument provided for hereby (other than Employment Agreements, Non-Competition Agreements and Non-Solicitation Agreements) or any of the transactions contemplated hereby or under any Ancillary AgreementTransaction Document, and to take all other actions that are either (i) necessary or appropriate in the judgment of the such Stockholder Representatives Representative for the accomplishment of the foregoing foregoing, or (ii) specifically mandated by the terms of this Agreementthereof. Notices or communications to or from both of the any Stockholder Representatives Representative shall constitute notice to or from the stockholders and optionholders Securityholders. Any writing signed or action taken by a Stockholder Representative shall be sufficient to constitute a writing signed or action taken on behalf of the CompanySecurityholders, whether or not the other Stockholder Representative has also signed such writing or taken such action.
(b) A Stockholder Representative may resign at any time, and in the event of the death, incapacity or resignation of a Stockholder Representative, a new Stockholder Representative may be appointed by the vote or written consent of stockholders Securityholders holding a majority of the aggregate Fully Diluted Shares immediately prior to and the Effective TimeShares underlying the Converted Options and Converted Warrants represented by the Total Company Share Number, except that, with respect to any resignation, death, or incapacity of Xxxxx Xxxx voting as a Stockholder Representative, the holders of a majority of the outstanding shares of Class A Common Stock as of the date hereof shall have the right to appoint such replacement Stockholder Representativesingle class. Notice of such vote or a copy of the written consent appointing such new Stockholder Representative shall be sent to the Acquiror Parent and, after the Effective Time, to the Surviving Corporation, such appointment to be effective upon the later of the date indicated in such consent and the date such consent is received by the Acquiror Parent and, after the Effective Time, the Surviving Corporation; provided that until such notice is received, the AcquirorParent, Sub and the Surviving Corporation, as applicable, shall be entitled to rely on the decisions, actions, consents and instructions of the such prior Stockholder Representative as described in Section 2.11(a1.11(a). Each Stockholder Representative may charge a reasonable fee, not to exceed $50,000 per Stockholder Representative per year, for his or its services subject to the approval of the other Stockholder Representative; provided that all fees and expenses incurred by the Stockholder Representatives in performing his or its duties hereunder (including legal fees and expenses related thereto) and any indemnification in favor of the Stockholder Representatives shall be borne by the stockholders and optionholders of the Company (other than holders of Dissenting Shares) pro rata in accordance with the portion of the Merger Consideration each such stockholder or optionholder would otherwise have been entitled to receive under Section 2.9(c), by virtue of the ownership of outstanding Shares or options immediately prior to the Effective Time (each such stockholder’s and optionholder’s pro rata interest, a “Pro Rata Share”) in the manner provided in the Escrow Agreement.
(c) In dealing with this Agreement and any notice, instrument, agreement or document relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the each Stockholder Representatives Representative hereunder or thereunder, (i) the each Stockholder Representatives Representative and his his, her or its agents, counsel, accountants and other representatives Representatives shall not assume any, and shall not incur any, responsibility whatsoever (in each case, to the extent permitted by applicable Law) to any stockholder stockholder, optionholder or optionholder warrantholder of the Company, the AcquirorParent, the Company, Sub or the Surviving Corporation, including, without limitation, including by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or any such other agreement, instrument or document, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted willful misconduct or fraud, and (ii) the each Stockholder Representatives Representative shall be entitled to rely in good faith on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the such Stockholder Representatives Representative pursuant to such advice shall in no event subject the such Stockholder Representatives Representative to liability to any stockholder stockholder, optionholder or warrantholder of the Company, the AcquirorParent, the Company, Sub or the Surviving Corporation. Except in cases where a court of competent jurisdiction has made such a finding, the stockholders and optionholders of the Company shall on a pro rata basis (based on each such stockholder’s and optionholder’s Pro Rata Share) indemnify and hold harmless the Stockholder Representatives from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with his or its activities as the Stockholder Representatives under this Agreement, the Escrow Agreement or otherwise.
(d) The grant of authority provided for in this Section 2.11 (i) 1.11 is coupled with an interest and is being granted, in part, as an inducement to the Acquiror Parent and Sub to enter into this Agreement and the Escrow AgreementTransaction Documents, and shall be irrevocable and survive the dissolution, liquidation or bankruptcy of the Company or the death, incompetency, liquidation or bankruptcy of any stockholder or optionholder of the CompanySecurityholder, shall be binding on any successor thereto and (ii) shall survive the assignment by any stockholder or optionholder of the Company Securityholder of the whole or any portion of his, her or its interest in the Escrow FundMerger Consideration.
(e) In connection with the performance of his or its obligations hereunder, the Stockholder Representatives shall have the right, acting together, at any time and from time to time to select and engage, at the cost and expense of the stockholders and optionholders of the Company (as contemplated by Section 2.11(b)), attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as he or it may deem necessary or desirable and incur other out-of-pocket expenses related to performing his or its services hereunder.
(f) All of the immunities and powers granted to the Stockholder Representatives under this Agreement with respect to this Agreement and the Escrow Agreement Transaction Documents shall survive the Closing and/or any termination of this Agreement, except that such powers shall terminate upon termination of this Agreement and if applicable the Transaction Documents.
(f) The Expense Escrow Fund may be used at the discretion of each Stockholder Representative solely for (i) reasonable and documented expenses incurred in the administration of his, her or its duties under this Section 1.11 or the Transaction Documents and (ii) compensation payable to such Stockholder Representative or his, her or its agents for the services rendered in the administration of the duties of such Stockholder Representative under this Section 1.11 and the Transaction Documents, which compensation shall be earned at a rate not to exceed $110 per hour. As soon as practicable following the Escrow Termination Date (as defined below), the Expense Escrow Agent shall, subject to the terms set forth in the Expense Escrow Agreement, deliver to the Payment Agent any portion of the Expense Escrow Fund which exceeds any amounts on that date reserved against pending expenses of, and earned and unpaid compensation owing to, such Stockholder Representative or his, her or its agents for disbursement to the holders of Covered Securities. Such disbursement shall be made as instructed by such Stockholder Representative; provided, however, expenses projected to be incurred in the reasonable determination of such Stockholder Representative for the administration of his, her or its duties in connection with claims unresolved as of the Escrow Termination Date may be retained in the Expense Escrow Fund for such purpose after the Escrow Termination Date. In the event the Expense Escrow Fund is insufficient to satisfy the reasonable out-of-pocket expenses (including attorneys’ and accountants’ fees and expenses) incurred by a Stockholder Representative and any earned and unpaid compensation owing to such Stockholder Representative or his, her or its agents in serving in that capacity (the “Unsatisfied Expenses”), such Stockholder Representative shall have the right to recover from the Escrow Fund, immediately prior to any distribution to the Covered Securityholders (but only after any disbursement from the Escrow Fund to the Escrow Agent or Parent pursuant to terms and conditions of the Escrow Agreement, and subject to any pending claims of the Parent Indemnified Parties), such Stockholder Representative’s Unsatisfied Expenses. In the event the Escrow Fund is insufficient to satisfy the Unsatisfied Expenses, then each Covered Securityholder will be obligated to pay a percentage of the Unsatisfied Expenses in excess of the available amounts in the Escrow Fund proportionate to such person’s allocable share of the Escrow Fund.
Appears in 1 contract
Stockholder Representatives. (ai) Pursuant to the terms of this ss.10(n) and by executing an appropriate agreement prior to the Closing Date (the "Stockholder Representative Agreement"), each Stockholder will appoint Alexxxxxx X. Xxxxxxx xxx Brucx X. Xxxxxxxxx xx act as such Stockholder's agents and representatives (the "Stockholder Representatives") for purposes of receiving on his or its behalf all notices under this Agreement, issuing on his or its behalf such notices under this Agreement as the Stockholder Representatives shall determine in their sole discretion to issue, and performing such other administrative and other functions under this Agreement as may become necessary or desirable.
(ii) The parties hereto agree that it is desirable to designate TA Associates Management, L.P. and Xxxxx Xxxx as the representatives of the Company’s stockholders and optionholders and their attorneys in fact (each a “Stockholder Representative” and collectively, the “Stockholder Representatives”), with Representatives shall have full power of substitution and authority to act for and on behalf of the Company’s stockholders and optionholders (only with respect Stockholders in regard to their interests as stockholders and optionholders rights under this Agreement. Without limiting the foregoing, the Stockholder Representatives are authorized to (A) resolve all claims for indemnification under this Agreement and the Escrow Agreement(B) retain counsel of its choosing, experts and other professionals as may be necessary or desirable to the extent and assist in the manner set forth in resolution of any claim for indemnification under this Agreement and the Escrow Agreement but not with respect to any amendments to this Agreement or the Escrow Agreement. The Company has designated the Stockholder Representatives shall have no right to act as the representatives agent for service of process for any one of the Company’s stockholders and optionholders for purposes of this Agreement and the Escrow Agreement, and approval of this Agreement and the Merger by such holders shall constitute ratification and approval of such designation on the terms set forth herein. All decisions, actions, consents and instructions by Stockholders except that any notice delivered to the Stockholder Representatives with respect to any claim arising pursuant to ss.8 of this Agreement and shall be deemed notice to all the Escrow Agreement (but not Stockholders with respect to any amendments hereto or thereto) shall be binding upon all of the stockholders and optionholders of the Company with respect to their interests as stockholders and optionholders under this Agreement and the Escrow Agreement, and no such stockholder shall have the right to object to, dissent from, protest or otherwise contest the same. The Stockholder Representatives shall act in unanimity with respect to any decision, action, consent or instruction contemplated by this Agreement and in all communications with the Acquiror and the Sub, and the Acquiror and Sub shall be entitled to rely on any such decision, action, consent or instruction as being the decision, action, consent or instruction of the Company’s stockholders and optionholders, and the Acquiror and Sub are hereby relieved from any liability to any Person for acts done by them in accordance with any such decision, act, consent or instruction. By way of amplification and not limitation, as Stockholder Representatives, the Stockholder Representatives shall be authorized and empowered, as agents of and on behalf of all stockholders and optionholders of the Company (only with respect to their interests as stockholders and optionholders) to give and receive notices and communications as provided herein, to object to any Acquiror Indemnification Claims, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims or Losses, to waive after the Effective Time any breach or default of the Acquiror or Sub of any obligation to be performed by it under this Agreement, to receive service of process on behalf of each stockholder and optionholder of the Company in connection with any claims against such stockholder or optionholder arising under or in connection with this Agreement, any document or instrument provided for hereby (other than Employment Agreements, Non-Competition Agreements and Non-Solicitation Agreements) or any of the transactions contemplated hereby or under any Ancillary Agreement, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representatives for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Notices or communications to or from both of the Stockholder Representatives shall constitute notice to or from the stockholders and optionholders of the Company.
(biii) A Stockholder Representative may resign at any time, and in the event of the death, incapacity or resignation of a Stockholder Representative, a new Stockholder Representative may be appointed by the vote or written consent of stockholders holding a majority of the aggregate Fully Diluted Shares immediately prior to the Effective Time, except that, with respect to any resignation, death, or incapacity of Xxxxx Xxxx as a Stockholder Representative, the holders of a majority of the outstanding shares of Class A Common Stock as of the date hereof shall have the right to appoint such replacement Stockholder Representative. Notice of such vote or a copy of the written consent appointing such new Stockholder Representative shall be sent to the Acquiror and, after the Effective Time, to the Surviving Corporation, such appointment to be effective upon the later of the date indicated in such consent and the date such consent is received by the Acquiror and, after the Effective Time, the Surviving Corporation; provided that until such notice is received, the Acquiror, Sub and the Surviving Corporation, as applicable, shall be entitled to rely on the decisions, actions, consents and instructions of the prior Stockholder Representative as described in Section 2.11(a). Each Stockholder Representative may charge a reasonable fee, not to exceed $50,000 per Stockholder Representative per year, for his or its services subject to the approval of the other Stockholder Representative; provided that all fees and expenses incurred by the Stockholder Representatives in performing his or its duties hereunder (including legal fees and expenses related thereto) and any indemnification in favor of the Stockholder Representatives shall be borne by the stockholders and optionholders of the Company (other than holders of Dissenting Shares) pro rata in accordance with the portion of the Merger Consideration each such stockholder or optionholder would otherwise have been entitled to receive under Section 2.9(c), by virtue of the ownership of outstanding Shares or options immediately prior to the Effective Time (each such stockholder’s and optionholder’s pro rata interest, a “Pro Rata Share”) in the manner provided in the Escrow Agreement.
(c) In dealing with this Agreement and any notice, instrument, agreement or document relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholder Representatives hereunder or thereunder, (i) the Stockholder Representatives and his or its agents, counsel, accountants and other representatives shall not assume any, and shall not incur any, responsibility whatsoever (in each case, to the extent permitted by applicable Law) to any stockholder or optionholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation, including, without limitation, by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or any such other agreement, instrument or document, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted willful misconduct or fraud, and (ii) the The Stockholder Representatives shall be entitled to rely reasonable compensation from the Stockholders for their services and reimbursement of all expenses (including the cost of errors and omissions insurance) incurred in their capacity as the Stockholder Representatives.
(iv) At any time after the date hereof, the Buyer shall be fully entitled in acting on and relying upon any written notice, direction, request, waiver, consent, receipt or other paper or document that the Buyer in good faith on believes to have been signed or presented by the advice Stockholder Representatives and the Buyer will have no liability to any Stockholder if it acts in accordance with the foregoing.
(v) The Stockholder Representatives shall be entitled to reimbursement by the Stockholders (subject to the provisions of counselss.8 hereof) of all reasonable expenses (including the cost of errors and omissions insurance) incurred in their capacity as Stockholder Representatives. The Stockholders shall, public accountants or other independent experts experienced in pursuant to the matter at issue, and any error in judgment or other act or omission terms of the Stockholder Representatives pursuant to such advice shall in no event subject the Stockholder Representatives to liability to any stockholder of the CompanyRepresentative Agreement, the Acquiror, the Company, Sub or the Surviving Corporation. Except in cases where a court of competent jurisdiction has made such a finding, the stockholders and optionholders of the Company shall on a pro rata basis (based on each such stockholder’s and optionholder’s Pro Rata Share) indemnify and hold harmless the Stockholder Representatives from and against any and all lossescosts, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and or damages (paid or incurred) in connection with his or its activities as the Stockholder Representatives under this Agreement, the Escrow Agreement or otherwise.
(d) The grant of authority provided for in this Section 2.11 (i) is coupled with an interest and is being granted, in part, as an inducement to the Acquiror and Sub to enter into this Agreement and the Escrow Agreement, and shall be irrevocable and survive the dissolution, liquidation or bankruptcy of the Company or the death, incompetency, liquidation or bankruptcy of any stockholder or optionholder of the Company, shall be binding on any successor thereto and (ii) shall survive the assignment by any stockholder or optionholder of the Company of the whole or any portion of his, her or its interest in the Escrow Fund.
(e) In connection with the performance of his their obligations pursuant to this Agreement, other than those arising from the gross negligence or its obligations willful misconduct of the Stockholder Representatives. The Stockholders shall, pursuant to the terms of the Stockholder Representative Agreement, be jointly and severally liable to the Stockholder Representatives for any liability arising out of this ss.10(n). Pursuant to the terms of 54 60 the Stockholder Representative Agreement, the Stockholder Representatives will be permitted to establish a trust account out of a portion of the Closing Cash Payment to be delivered hereunder. Prior to distributing the Merger Consideration to the Stockholders, the Stockholder Representatives shall have deposit in an interest-bearing trust account $500,000 (which shall be deducted from the right, acting together, at any time and from time Merger Consideration to time be distributed to select and engage, at the cost and expense of the stockholders and optionholders of the Company (as contemplated by Section 2.11(b)Stockholders hereunder), attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as he or it may deem necessary or desirable and incur other out-of-pocket expenses related to performing his or its services hereunder.
(f) All of the immunities and powers granted which amount shall be available to the Stockholder Representatives only for reimbursement of the Stockholder Representatives' costs, expenses, or damages paid or incurred in connection with the performance of their obligations under this Agreement with respect Agreement. Following the final resolution of any indemnification claims and following the distribution of all Holdback Shares held by the Escrow Agent pursuant to the terms of the Escrow Agreement, the Stockholder Representatives shall distribute to the Stockholders their pro rata portion of any funds held pursuant to the terms of this ss.10(n)(v). * * * * * [Signature Page to Merger Agreement and the Escrow Agreement shall survive the Closing and/or any termination Plan of this Agreement, except that such powers shall terminate upon termination of this Agreement.Reorganization]
Appears in 1 contract
Stockholder Representatives. (a) The parties hereto agree that it is desirable to designate TA Associates ManagementSofinnova Management V 2005, L.P. LLC and Xxxxx Xxxx as the representatives of the Company’s stockholders X. Xxxxxxxx, M.D. (such Persons and optionholders and their attorneys in fact (each a “Stockholder Representative” and collectively, any successor or successors to such Persons being the “Stockholder Representatives”)) shall act as the representative of the holders of Company Stock, with full power of substitution and is authorized to act on behalf of the Company’s stockholders Stockholders, Warrantholders and optionholders (only with respect Eligible Optionholders and to their interests as stockholders take any and optionholders all actions required or permitted to be taken by the Stockholder Representatives under this Agreement and the Escrow Agreement) to the extent and in the manner set forth in this Agreement and the Escrow Agreement but not other Transaction Documents with respect to any amendments claims (including the settlement thereof) made by a Parent Indemnified Party or a Company Stockholder (as the case may be) for indemnification pursuant to this Article 10 and with respect to any actions to be taken by the Stockholder Representatives pursuant to the terms of this Agreement or the Escrow Agreement. The Company has designated other Transaction Documents (including, without limitation, the Stockholder Representatives as the representatives exercise of the Company’s stockholders and optionholders for purposes of this Agreement and the Escrow Agreement, and approval of this Agreement and the Merger by such holders shall constitute ratification and approval of such designation on the terms set forth herein. All decisions, actions, consents and instructions by the Stockholder Representatives with respect to this Agreement and the Escrow Agreement (but not with respect to any amendments hereto or thereto) shall be binding upon all of the stockholders and optionholders of the Company with respect to their interests as stockholders and optionholders under this Agreement and the Escrow Agreement, and no such stockholder shall have the right to object to, dissent from, protest or otherwise contest the same. The Stockholder Representatives shall act in unanimity with respect to any decision, action, consent or instruction contemplated by this Agreement and in all communications with the Acquiror and the Sub, and the Acquiror and Sub shall be entitled to rely on any such decision, action, consent or instruction as being the decision, action, consent or instruction of the Company’s stockholders and optionholders, and the Acquiror and Sub are hereby relieved from any liability to any Person for acts done by them in accordance with any such decision, act, consent or instruction. By way of amplification and not limitation, as Stockholder Representatives, the Stockholder Representatives shall be authorized and empowered, as agents of and on behalf of all stockholders and optionholders of the Company (only with respect to their interests as stockholders and optionholders) to give and receive notices and communications as provided herein, to object to any Acquiror Indemnification Claims, power to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators or arbiters with respect to, such claims or Losses, to waive after the Effective Time any breach or default of the Acquiror or Sub of any obligation to be performed by it under this Agreement, to receive service of process on behalf of each stockholder and optionholder of the Company in connection with any claims against such stockholder or optionholder arising under or for indemnification). After the Closing, in connection with all matters relating to this AgreementAgreement and the other Transaction Documents, any document or instrument provided for hereby (other than Employment Agreements, Non-Competition Agreements and Non-Solicitation Agreements) or any of the transactions contemplated hereby or under any Ancillary Agreement, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representatives for shall be the accomplishment only party entitled to assert the rights of the foregoing Stockholders, Warrantholders and Eligible Optionholders, and the Stockholder Representatives shall perform all of the obligations of the Stockholders, Warrantholders and Eligible Optionholders hereunder. A decision, act, consent, or (ii) specifically mandated by the terms of this Agreement. Notices or communications to or from both statement of the Stockholder Representatives shall constitute notice to a decision, act, consent or from the stockholders and optionholders statement of the Company.
(b) A Stockholder Representative may resign at any timeStockholders, Warrantholders and Eligible Optionholders and shall be final, binding and conclusive upon each Company Stockholder, and in the event of the death, incapacity or resignation of a Stockholder Representative, a new Stockholder Representative may be appointed by the vote or written consent of stockholders holding a majority of the aggregate Fully Diluted Shares immediately prior to the Effective Time, except that, with respect to any resignation, death, or incapacity of Xxxxx Xxxx as a Stockholder Representative, the holders of a majority of the outstanding shares of Class A Common Stock as of the date hereof shall have the right to appoint such replacement Stockholder Representative. Notice of such vote or a copy of the written consent appointing such new Stockholder Representative shall be sent to the Acquiror and, after the Effective Time, to the Surviving Corporation, such appointment to be effective upon the later of the date indicated in such consent and the date such consent is received by the Acquiror and, after the Effective Time, the Surviving Corporation; provided that until such notice is received, the Acquiror, Sub and the Surviving Corporation, as applicable, Parent Indemnified Parties shall be entitled to rely on the all such decisions, actionsacts, consents and instructions statements of the prior Stockholder Representative as described Representatives. Parent is hereby relieved from any liability to any Person for acts done by it in Section 2.11(a). Each Stockholder Representative may charge a reasonable feeaccordance with such decision, not to exceed $50,000 per Stockholder Representative per yearact, for his consent or its services subject to the approval statement of the other Stockholder Representative; provided that Representatives.
(b) The Stockholders, Warrantholders and Eligible Optionholders shall be bound by all fees and expenses incurred actions taken by the Stockholder Representatives in performing his their capacity thereof, except for any action that conflicts with the limitations set forth in subsection (d) below. The Stockholder Representatives shall promptly, and in any event within five Business Days, provide written notice to the Stockholders, Warrantholders and Eligible Optionholders of any action taken on behalf of them by the Stockholder Representatives pursuant to the authority delegated to the Stockholder Representatives under this Section 10.6. The Stockholder Representatives may rely upon and shall not be liable for acting or its duties refraining from acting upon any written notice, document, instrument or request furnished to it hereunder (including legal fees and expenses related thereto) believed by it to be genuine and to have been signed or presented by the proper party or parties without inquiry and without requiring substantiating evidence of any indemnification in favor kind. Neither of the Stockholder Representatives nor any of their respective directors, officers, agents or employees, if any, shall be borne liable to any Person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement, except in the case of its gross negligence or willful misconduct. The Stockholder Representatives may consult with legal counsel, independent public accountants and other experts selected by it. The Stockholder Representatives shall not have any duty to ascertain or to inquire as to the stockholders and optionholders performance or observance of any of the Company (terms, covenants or conditions of this Agreement. As to any matters not expressly provided for in this Agreement or the other than holders of Dissenting Shares) pro rata in accordance with Transaction Documents, the portion of the Merger Consideration each such stockholder Stockholder Representatives shall not exercise any discretion or optionholder would otherwise have been entitled to receive under Section 2.9(c), by virtue of the ownership of outstanding Shares or options immediately prior to the Effective Time (each such stockholder’s and optionholder’s pro rata interest, a “Pro Rata Share”) in the manner provided in the Escrow Agreementtake any action.
(c) In dealing with this Agreement Each Stockholder, Warrantholder and any notice, instrument, agreement or document relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholder Representatives hereunder or thereunder, (i) the Stockholder Representatives and his or its agents, counsel, accountants and other representatives Eligible Optionholder shall not assume any, and shall not incur any, responsibility whatsoever (in each case, to the extent permitted by applicable Law) to any stockholder or optionholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation, including, without limitation, by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or any such other agreement, instrument or document, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted willful misconduct or fraud, and (ii) the Stockholder Representatives shall be entitled to rely in good faith on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholder Representatives pursuant to such advice shall in no event subject the Stockholder Representatives to liability to any stockholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation. Except in cases where a court of competent jurisdiction has made such a finding, the stockholders and optionholders of the Company shall on a pro rata basis (based on each such stockholder’s and optionholder’s Pro Rata Share) indemnify and hold harmless and reimburse the Stockholder Representatives from and against such Company Stockholder’s ratable share of any and all liabilities, losses, liabilitiesdamages, claims, actionscosts or expenses (including, damages without limitation, the costs of legal or accounting advisors incurred in performance of the obligations of the Stockholder Representatives under Section 4.2 and expenses, including reasonable attorneys’ fees and disbursements, otherwise under this Agreement) suffered or incurred by the Stockholder Representatives arising out of and in connection with his or its activities as resulting from any action taken or omitted to be taken by the Stockholder Representatives under this Agreement, other than such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Escrow Agreement Stockholder Representatives’ gross negligence or otherwisewillful misconduct.
(d) The grant of authority provided for in this Section 2.11 (i) is coupled with an interest and is being granted, in part, as an inducement to the Acquiror and Sub to enter into this Agreement and the Escrow Agreement, and shall be irrevocable and survive the dissolution, liquidation or bankruptcy of the Company or the death, incompetency, liquidation or bankruptcy of any stockholder or optionholder of the Company, shall be binding on any successor thereto and (ii) shall survive the assignment Any actions taken by any stockholder or optionholder of the Company of the whole or any portion of his, her or its interest in the Escrow Fund.
(e) In connection with the performance of his or its obligations hereunder, the Stockholder Representatives shall have the right, acting together, at any time and from time to time to select and engage, at the cost and expense of the stockholders and optionholders of the Company (as contemplated by Section 2.11(b)), attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as he or it may deem necessary or desirable and incur other out-of-pocket expenses related to performing his or its services hereunder.
(f) All of the immunities and powers granted to the Stockholder Representatives under this Agreement with respect pursuant to this Agreement and shall require the Escrow Agreement shall survive the Closing and/or any termination consent of this Agreement, except that such powers shall terminate upon termination of this Agreementboth Stockholder Representatives.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Biovail Corp International)
Stockholder Representatives. (a) The parties hereto agree that it is desirable to designate TA Associates ManagementAny decision, L.P. and Xxxxx Xxxx as the representatives act, consent, or instruction of the Company’s stockholders and optionholders and their attorneys in fact (each Stockholder Representatives shall constitute a “Stockholder Representative” and collectively, the “Stockholder Representatives”), with full power decision of substitution to act on behalf all of the Company’s stockholders Holders and optionholders (only with respect to their interests as stockholders shall be final binding and optionholders under this Agreement conclusive upon each Holder. Parent and the Escrow Agreement) Surviving Company shall be entitled to the extent rely on such appointment and in the manner set forth in this Agreement and the Escrow Agreement but not with respect to any amendments to this Agreement or the Escrow Agreement. The Company has designated treat the Stockholder Representatives as the duly appointed representatives for the Holders. If any Stockholder Representative shall be unable to serve, the remaining Stockholder Representative shall appoint a replacement therefor, and if at any time only one Stockholder Representative is then serving, then such Stockholder Representative is authorized to act alone pursuant to this Section 9.4. Each Stockholder Representative, by execution hereof, confirms such appointment and authority and acknowledges that, in acting as the representative of the Company’s stockholders and optionholders for purposes of this Agreement and Holders, the Escrow AgreementStockholder Representatives may rely upon, and approval shall not be liable to any Holder for acting or refraining from acting upon, an opinion of counsel, certificate of auditors or other certificates, statement, instrument, opinion, report, notice, request, consent, order, arbitrator's award, appraisal, bond other paper or document reasonably believed by him to be genuine and to have been signed or presented by the proper party or parties. No Stockholder Representative shall incur any liability to any Holder with respect to any action taken or suffered by him in his capacity as Stockholder Representative in reliance upon any note, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized. In addition, no Stockholder Representative shall incur any liability to any Holder for any action or inaction except his own fraud or willful misconduct. Each Stockholder Representative may perform his duties as Stockholder Representatives either directly or by or through his agents or attorneys and no Stockholder Representative shall be responsible to any other Holder for any misconduct or negligence on the part of any agent or attorney appointed with reasonable care by him hereunder or for any action or inaction by any other Stockholder Representative. Adoption of this Agreement and the Merger by such holders shall constitute ratification and approval of such designation on the terms set forth herein. All decisions, actions, consents and instructions by the Stockholder Representatives with respect to this Agreement and the Escrow Agreement (but not with respect to any amendments hereto or thereto) shall be binding upon all requisite vote of the stockholders and optionholders holders of the Company with respect Common Stock and Company Preferred Stock shall constitute the agreement of (a) all Holders to their interests as stockholders the terms and optionholders under provisions of this Agreement and the Escrow Agreement, and no such stockholder shall have the right to object to, dissent from, protest or otherwise contest the same. The Stockholder Representatives shall act in unanimity with respect to any decision, action, consent or instruction contemplated by this Agreement and in all communications with the Acquiror and the Sub, and the Acquiror and Sub shall be entitled to rely on any such decision, action, consent or instruction as being the decision, action, consent or instruction of the Company’s stockholders and optionholders, and the Acquiror and Sub are hereby relieved from any liability to any Person for acts done by them in accordance with any such decision, act, consent or instruction. By way of amplification and not limitation, as Stockholder Representatives, the Stockholder Representatives shall be authorized and empowered, as agents of and on behalf of all stockholders and optionholders of the Company (only with respect to their interests as stockholders and optionholders) to give and receive notices and communications as provided herein, to object to any Acquiror Indemnification Claims, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims or Losses, to waive after the Effective Time any breach or default of the Acquiror or Sub of any obligation to be performed by it under this Agreement, to receive service of process on behalf of each stockholder and optionholder of the Company in connection with any claims against such stockholder or optionholder arising under or in connection with this Agreement, any document or instrument provided for hereby (other than Employment Agreements, Non-Competition Agreements and Non-Solicitation Agreements) or any of the transactions contemplated hereby or under any Ancillary Agreement, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representatives for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Notices or communications to or from both of the Stockholder Representatives shall constitute notice to or from the stockholders and optionholders of the Company.
(b) A Stockholder Representative may resign at any time, and in the event of the death, incapacity or resignation of a Stockholder Representative, a new Stockholder Representative may be appointed by the vote or written consent of stockholders holding a majority of the aggregate Fully Diluted Shares immediately prior to the Effective Time, except that, with respect to any resignation, death, or incapacity of Xxxxx Xxxx as a Stockholder Representative, the holders of a majority of the outstanding shares of Class A Common Stock as of the date hereof shall have the right to appoint such replacement Stockholder Representative. Notice of such vote or a copy of the written consent appointing such new Stockholder Representative shall be sent to the Acquiror and, after the Effective Time, to the Surviving Corporation, such appointment to be effective upon the later of the date indicated in such consent and the date such consent is received by the Acquiror and, after the Effective Time, the Surviving Corporation; provided that until such notice is received, the Acquiror, Sub and the Surviving Corporation, as applicable, shall be entitled to rely on the decisions, actions, consents and instructions of the prior Stockholder Representative as described in Section 2.11(a). Each Stockholder Representative may charge a reasonable fee, not to exceed $50,000 per Stockholder Representative per year, for his or its services subject to the approval of the other Stockholder Representative; provided that all fees and expenses incurred by the Stockholder Representatives in performing his or its duties hereunder (including legal fees and expenses related thereto) and any indemnification in favor of the Stockholder Representatives shall be borne by the stockholders and optionholders of the Company (other than holders of Dissenting Shares) pro rata in accordance with the portion of the Merger Consideration each such stockholder or optionholder would otherwise have been entitled to receive under Section 2.9(c), by virtue of the ownership of outstanding Shares or options immediately prior to the Effective Time (each such stockholder’s and optionholder’s pro rata interest, a “Pro Rata Share”) in the manner provided in the Escrow Agreement.
(c) In dealing with this Agreement and any notice, instrument, agreement or document relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholder Representatives hereunder or thereunder, (i) the Stockholder Representatives and his or its agents, counsel, accountants and other representatives shall not assume any, and shall not incur any, responsibility whatsoever (in each case, to the extent permitted by applicable Law) to any stockholder or optionholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation, including, without limitation, by reason this Section 9.4, (b) each Holder to defend, indemnify and hold harmless, severally and not jointly (based upon the pro rata portion of the Aggregate Merger Consideration to which such Holder is entitled pursuant to this Agreement), each Stockholder Representative from, against and in respect of any error in judgment and all claims, liabilities, obligations, costs, expenses, deficiencies and damages incurred, sustained, suffered, paid or other act or omission performed or omitted hereunder or payable by such Stockholder Representative in connection with this Agreement or any such other agreement, instrument or document, except to the extent such actions shall have been determined by acting as a court of competent jurisdiction to have constituted willful misconduct or fraud, and (ii) the Stockholder Representatives shall be entitled to rely in good faith on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, Representative and any error in judgment action or other act or omission of the Stockholder Representatives pursuant to such advice shall in no event subject the Stockholder Representatives to liability to any stockholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation. Except in cases where a court of competent jurisdiction has made such a finding, the stockholders and optionholders of the Company shall on a pro rata basis (based on each such stockholder’s and optionholder’s Pro Rata Share) indemnify and hold harmless the Stockholder Representatives from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with his or its activities as the Stockholder Representatives under this Agreement, the Escrow Agreement or otherwise.
(d) The grant of authority provided for in this Section 2.11 (i) is coupled with an interest and is being granted, in part, as an inducement to the Acquiror and Sub to enter into this Agreement and the Escrow Agreement, and shall be irrevocable and survive the dissolution, liquidation or bankruptcy of the Company or the death, incompetency, liquidation or bankruptcy of any stockholder or optionholder of the Company, shall be binding on any successor thereto and (ii) shall survive the assignment inaction taken by any stockholder or optionholder of the Company of the whole or any portion of his, her or its interest in the Escrow Fund.
(e) In connection with the performance of his or its obligations hereunder, the Stockholder Representatives shall have the right, acting together, at any time and from time to time to select and engage, at the cost and expense of the stockholders and optionholders of the Company (as contemplated by Section 2.11(b)), attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as he or it may deem necessary or desirable and incur other out-of-pocket expenses related to performing his or its services hereunder.
(f) All of the immunities and powers granted to the Stockholder Representatives under this Agreement with respect other than any such claims, liabilities, costs, expenses or damages to this Agreement the extent arising from such Stockholder Representative's fraud or willful misconduct, and (c) each Holder to waive any and all claims, known or unknown, or conflicts of interest arising out of or relating to the Escrow Agreement shall survive Stockholders Representatives being appointed officers and directors of the Closing Surviving Company and/or any termination of this Agreement, except that such powers shall terminate upon termination of this AgreementParent.
Appears in 1 contract
Stockholder Representatives. (ak) The parties hereto Indemnifying Persons, by executing or approving this Agreement and the transactions contemplated hereby, irrevocably agree that it is desirable to designate TA Associates Management, L.P. appoint and constitute Xxxxx Xxxxxx and Xxxx Xxxxx (and by the execution of this Agreement as the representatives of the Company’s stockholders and optionholders and their attorneys in fact (each a “Stockholder Representative” and collectively, the “Stockholder Representatives”), with full power Xxxxx Xxxxxx and Xxxx Xxxxx hereby accept of substitution to act their appointment) for and on behalf of the Company’s stockholders Indemnifying Persons as the true, exclusive and optionholders lawful agents and attorney-in-fact for and on behalf of each such Indemnifying Person to act: (only with respect to their interests i) as stockholders and optionholders Stockholder Representatives under this Agreement and the Escrow Paying Agent Agreement, and to have the right, power and authority to perform all actions (or refrain from taking any actions) to the extent and Stockholder Representatives shall deem necessary, appropriate or advisable in the manner set forth in connection with, or related to, this Agreement and the Escrow Agreement but not with respect to any amendments to this Agreement or the Escrow Agreement. The Company has designated the Stockholder Representatives as the representatives of the Company’s stockholders and optionholders for purposes of this Paying Agent Agreement and the Escrow Agreementtransactions contemplated hereby and thereby; (ii) in the name, place and approval stead of this Agreement each Company Stockholders (A) in connection with the Merger and the Merger by such holders shall constitute ratification and approval of such designation on the terms set forth herein. All decisions, actions, consents and instructions by the Stockholder Representatives with respect to this Agreement and the Escrow Agreement (but not with respect to any amendments hereto or thereto) shall be binding upon all of the stockholders and optionholders of the Company with respect to their interests as stockholders and optionholders under this Agreement and the Escrow Agreement, and no such stockholder shall have the right to object to, dissent from, protest or otherwise contest the same. The Stockholder Representatives shall act in unanimity with respect to any decision, action, consent or instruction transactions contemplated by this Agreement and in all communications accordance with the Acquiror terms and the Subprovisions of this Agreement, and the Acquiror (B) in any proceeding involving this Agreement, to do, or refrain from doing, all such further acts and Sub shall be entitled to rely on things, necessary, appropriate or advisable in connection with any such decision, action, consent or instruction as being the decision, action, consent or instruction of the Company’s stockholders foregoing, including execute and optionholders, and the Acquiror and Sub are hereby relieved from any liability to any Person for acts done by them in accordance with any deliver all such decision, act, consent or instruction. By way of amplification and not limitation, documents as Stockholder Representatives, the Stockholder Representatives shall be authorized deem necessary or appropriate in connection with the Merger, including this Agreement or agreeing to any modification or amendment of this Agreement in accordance with Section 9.10 or the Paying Agent Agreement and empoweredexecuting and delivering an agreement of such modification or amendment. Without derogating from the generality of the foregoing, as agents of and on behalf of all stockholders and optionholders of the Company date hereof the Stockholder Representatives shall have the right, power and authority to: (only with respect to their interests as stockholders and optionholdersi) to give and receive notices and communications as provided hereincommunications, executed by the Stockholder Representatives (ii) authorize delivery to Parent Indemnitees of the applicable portion of the Earn-Out Payment Amount or supplemental indemnification amounts, if any, in satisfaction of claims by Indemnified Parties, (iii) object to any Acquiror Indemnification Claimssuch deliveries, to (iv) agree to, negotiate, defend, resolve, enter into settlements and compromises of, and demand arbitration any suit, proceeding, claim or dispute under this Agreement or the Paying Agent Agreement on behalf of the Indemnifying Persons and comply with orders of courts and awards of arbitrators with respect to such claims, (v) to agree to, such claims or Lossesnegotiate, enter into and provide amendments and supplements to waive after and waivers in respect of this Agreement and the Effective Time any breach or default of the Acquiror or Sub of any obligation to be performed by it under this Paying Agent Agreement, to receive service of process on behalf of each stockholder (vi) retain legal counsel, accountants, consultants, advisors and optionholder of the Company other experts, and incur any other reasonable expenses, in connection with any claims against such stockholder all matters and things set forth or optionholder arising under or in connection necessary with respect to this Agreement, any document or instrument provided for hereby (other than Employment Agreements, Non-Competition Agreement and the Ancillary Agreements and Non-Solicitation Agreements) or any of the transactions contemplated hereby and thereby; (vii) apply the Rep Reimbursement Amount to the payment of (or under any Ancillary reimbursement of the Stockholder Representatives for) expenses and liabilities which the Stockholder Representatives may incur pursuant to this Agreement, ; and (viii) to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representatives for the accomplishment of any or all of the foregoing or (ii) specifically mandated foregoing. The identity of the Stockholder Representatives may be changed by the terms holders of this Agreementa majority of the Proportionate Indemnification Share (the “Majority Holders”) from time to time upon not less than fifteen (15) days’ prior written notice to all of the Indemnifying Persons and to Parent. Each of the Stockholder Representatives may resign from his position by providing a 15-day prior written notice to the Indemnifying Persons and in such case, or in the case of death, disability, or inability of such Stockholder Representatives, the Majority Holders shall, within fifteen (15) days from such event, appoint a replacement Stockholder Representatives and notify Parent. No bond shall be required of the Stockholder Representatives, and the Stockholder Representatives shall receive no compensation for his services. Notices or communications to or from both of the Stockholder Representatives shall constitute notice to or from the stockholders and optionholders each of the Company.
(b) A Stockholder Representative may resign at any time, Indemnifying Persons. Any and in the event of the death, incapacity or resignation of a Stockholder Representative, a new Stockholder Representative may be appointed by the vote or written consent of stockholders holding a majority of the aggregate Fully Diluted Shares immediately prior to the Effective Time, except that, with respect to any resignation, death, or incapacity of Xxxxx Xxxx as a Stockholder Representative, the holders of a majority of the outstanding shares of Class A Common Stock as of the date hereof shall have the right to appoint such replacement Stockholder Representative. Notice of such vote or a copy of the written consent appointing such new Stockholder Representative shall be sent to the Acquiror and, after the Effective Time, to the Surviving Corporation, such appointment to be effective upon the later of the date indicated in such consent and the date such consent is received by the Acquiror and, after the Effective Time, the Surviving Corporation; provided that until such notice is received, the Acquiror, Sub and the Surviving Corporation, as applicable, shall be entitled to rely on the all decisions, actionsacts, consents and or instructions of the prior Stockholder Representative as described in Section 2.11(a). Each Stockholder Representative may charge a reasonable fee, not to exceed $50,000 per Stockholder Representative per year, for his made or its services subject to the approval of the other Stockholder Representative; provided that all fees and expenses incurred given by the Stockholder Representatives in performing his or its duties hereunder (including legal fees and expenses related thereto) and any indemnification in favor of the Stockholder Representatives shall be borne by the stockholders and optionholders of the Company (other than holders of Dissenting Shares) pro rata in accordance with the portion of the Merger Consideration each such stockholder or optionholder would otherwise have been entitled to receive under Section 2.9(c), by virtue of the ownership of outstanding Shares or options immediately prior to the Effective Time (each such stockholder’s and optionholder’s pro rata interest, a “Pro Rata Share”) in the manner provided in the Escrow Agreement.
(c) In dealing with this Agreement and any notice, instrument, agreement or document relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholder Representatives hereunder or thereunder, (i) the Stockholder Representatives and his or its agents, counsel, accountants and other representatives shall not assume any, and shall not incur any, responsibility whatsoever (in each case, to the extent permitted by applicable Law) to any stockholder or optionholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation, including, without limitation, by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or any such other agreementthe Paying Agent Agreement shall constitute a decision of all the Company Stockholders and shall be final, instrument or document, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted willful misconduct or fraudbinding and conclusive upon each and every Company Stockholder Holder, and (ii) the Stockholder Representatives Parent shall be entitled to rely in good faith on the advice of counselupon any such decision, public accountants act, consent or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission instruction of the Stockholder Representatives pursuant to such advice shall in no event subject Representatives, provided that as long as there are more than one Person performing the role of the Stockholder Representatives to liability to any stockholder of the CompanyRepresentatives, the Acquirorsuch decision, the Companyact, Sub consent or the Surviving Corporation. Except in cases where instruction are evidenced by a court of competent jurisdiction has made document jointly executed by such a finding, the stockholders and optionholders of the Company shall on a pro rata basis (based on each such stockholder’s and optionholder’s Pro Rata Share) indemnify and hold harmless the Stockholder Representatives from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out . This power of and in connection with his or its activities as the Stockholder Representatives under this Agreement, the Escrow Agreement or otherwise.
(d) The grant of authority provided for in this Section 2.11 (i) attorney is coupled with an interest and is being granted, in part, as an inducement to the Acquiror and Sub to enter into this Agreement and the Escrow Agreement, and shall be irrevocable and survive the dissolution, liquidation or bankruptcy of the Company or the death, incompetency, liquidation or bankruptcy of any stockholder or optionholder of the Company, shall be binding on any successor thereto and (ii) shall survive the assignment by any stockholder or optionholder of the Company of the whole or any portion of his, her or its interest in the Escrow Fundirrevocable.
(e) In connection with the performance of his or its obligations hereunder, the Stockholder Representatives shall have the right, acting together, at any time and from time to time to select and engage, at the cost and expense of the stockholders and optionholders of the Company (as contemplated by Section 2.11(b)), attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as he or it may deem necessary or desirable and incur other out-of-pocket expenses related to performing his or its services hereunder.
(f) All of the immunities and powers granted to the Stockholder Representatives under this Agreement with respect to this Agreement and the Escrow Agreement shall survive the Closing and/or any termination of this Agreement, except that such powers shall terminate upon termination of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Attunity LTD)
Stockholder Representatives. (a) The parties hereto agree that it is desirable By virtue of their approval of this Agreement, the Principals, the Company Stockholders and the Indemnifying Stockholders will be deemed to designate TA Associates Managementhave irrevocably constituted and appointed, L.P. and Xxxxx Xxxx effective as the representatives of the Company’s stockholders and optionholders and their attorneys in fact (each a “Stockholder Representative” and collectivelyClosing Date, the “Stockholder Representatives”), as their true and lawful agent and attorney-in-fact to enter into any agreement in connection with full power of substitution to act on behalf of the Company’s stockholders and optionholders (only with respect to their interests as stockholders and optionholders under transactions contemplated by this Agreement and the Escrow Agreement) to the extent and in the manner set forth in this Agreement and , the Escrow Agreement but not with respect to any amendments to this Agreement or the Tax Escrow Agreement. The Company has designated the Stockholder Representatives as the representatives of the Company’s stockholders and optionholders for purposes of this Agreement and , including, without limitation, entering into the Escrow Agreement, and approval of this the Tax Escrow Agreement and the Merger by such holders shall constitute ratification and approval of such designation on the terms set forth herein. All decisions, actions, consents and instructions by the Stockholder Representatives with respect any other agreement relating thereto or to this Agreement and exercising on behalf of Principals, the Escrow Agreement (but not with respect to Company Stockholders and the Indemnifying Stockholders all or any amendments hereto or thereto) shall be binding upon all of the stockholders powers, authority, rights and optionholders of the Company with respect to their interests as stockholders and optionholders discretion conferred on them under this Agreement and Agreement, the Escrow Agreement, and no the Tax Escrow Agreement or any such stockholder shall have other agreement, including without limitation delivering instructions to the right to object to, dissent from, protest or otherwise contest Buyer for the same. The Stockholder Representatives shall act in unanimity with respect to any decision, action, consent or instruction contemplated by this Agreement and in all communications with method of payment and/or delivery of the Acquiror Merger Consideration and the SubContingent Shares hereunder, waiving any terms and the Acquiror and Sub shall be entitled to rely on conditions of any such decisionagreement, actiongiving and receiving notices and communications, consent or instruction as being authorizing delivery to the decision, action, consent or instruction Buyer of the Company’s stockholders and optionholdersEscrow Shares, and the Acquiror and Sub are hereby relieved from any liability to any Person for acts done by them Escrow Cash or other property held in escrow in accordance with any the Escrow Agreement or the Tax Escrow Agreement in satisfaction of claims by the Buyer, objecting to such decisiondeliveries, act, consent or instruction. By way of amplification and not limitation, as Stockholder Representatives, the Stockholder Representatives shall be authorized and empowered, as agents of and on behalf of all stockholders and optionholders of the Company (only with respect to their interests as stockholders and optionholders) to give and receive notices and communications as provided herein, to object to any Acquiror Indemnification Claims, to agree agreeing to, negotiatenegotiating, enter entering into settlements and compromises of, and demand demanding arbitration and comply complying with orders of courts and awards of arbitrators with respect to, to such claims or Losses, to waive after the Effective Time any breach or default of the Acquiror or Sub of any obligation to be performed by it under this Agreement, to receive service of process on behalf of each stockholder and optionholder of the Company in connection with any claims against such stockholder or optionholder arising under or in connection with this Agreement, any document or instrument provided for hereby (other than Employment Agreements, Non-Competition Agreements and Non-Solicitation Agreements) or any of the transactions contemplated hereby or under any Ancillary Agreementclaims, and to take taking all other actions that are either (i) necessary or appropriate in the judgment of the such Stockholder Representatives for the accomplishment of the foregoing or (ii) specifically mandated foregoing. Such agency may be changed by the terms Company Stockholders from time to time upon not less than 10 days’ prior written notice to the Buyer and the Escrow Agent (and the Escrow Agent shall promptly be provided with a facsimile copy of this Agreementthe signature(s) of any such successor Stockholder Representative); provided, however that the Stockholder Representatives may not be removed unless holders of a two-thirds interest in the Escrow Shares and Escrow Cash agree to such removal and to the identity of the substituted Stockholder Representatives. Notices Any vacancy in the position of the Stockholder Representative may be filled by approval of the holders of a majority-in-interest of the Escrow Shares and Escrow Cash. In the event that one Stockholder Representative is removed or vacates such position, then the remaining Stockholder Representative shall continue to be a Stockholder Representative and shall continue to be entitled to take all actions hereunder as the Stockholder Representative. Following the Effective Time, notices or communications to or from both of the Stockholder Representatives shall constitute notice to or from the stockholders and optionholders of the Company.
(b) A either Stockholder Representative may resign at any time, and in the event of the death, incapacity or resignation of a Stockholder Representative, a new Stockholder Representative may be appointed by the vote or written consent of stockholders holding a majority of the aggregate Fully Diluted Shares immediately prior to the Effective Time, except that, with respect to any resignation, death, or incapacity of Xxxxx Xxxx as a Stockholder Representative, the holders of a majority of the outstanding shares of Class A Common Stock as of the date hereof shall have the right to appoint such replacement Stockholder Representative. Notice of such vote or a copy of the written consent appointing such new Stockholder Representative shall be sent to the Acquiror and, after the Effective Time, to the Surviving Corporation, such appointment to be effective upon the later of the date indicated in such consent and the date such consent is received by the Acquiror and, after the Effective Time, the Surviving Corporation; provided that until such notice is received, the Acquiror, Sub and the Surviving Corporation, as applicable, shall be entitled to rely on the decisions, actions, consents and instructions of the prior Stockholder Representative as described in Section 2.11(a). Each Stockholder Representative may charge a reasonable fee, not to exceed $50,000 per Stockholder Representative per year, for his or its services subject to the approval of the other Stockholder Representative; provided that all fees and expenses incurred by the Stockholder Representatives in performing his or its duties hereunder (including legal fees and expenses related thereto) and any indemnification in favor of the Stockholder Representatives shall be borne by the stockholders and optionholders of the Company (other than holders of Dissenting Shares) pro rata in accordance with the portion of the Merger Consideration each such stockholder or optionholder would otherwise have been entitled to receive under Section 2.9(c), by virtue of the ownership of outstanding Shares or options immediately prior to the Effective Time (each such stockholder’s and optionholder’s pro rata interest, a “Pro Rata Share”) in the manner provided in the Escrow Agreement.
(c) In dealing with this Agreement and any notice, instrument, agreement or document relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholder Representatives hereunder or thereunder, (i) the Stockholder Representatives and his or its agents, counsel, accountants and other representatives shall not assume any, and shall not incur any, responsibility whatsoever (in each case, to the extent permitted by applicable Law) to any stockholder or optionholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation, including, without limitation, by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or any such other agreement, instrument or document, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted willful misconduct or fraud, and (ii) the Stockholder Representatives shall be entitled to rely in good faith on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholder Representatives pursuant to such advice shall in no event subject the Stockholder Representatives to liability to any stockholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation. Except in cases where a court of competent jurisdiction has made such a finding, the stockholders and optionholders of the Company shall on a pro rata basis (based on each such stockholder’s and optionholder’s Pro Rata Share) indemnify and hold harmless the Stockholder Representatives from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with his or its activities as the Stockholder Representatives matters under this Agreement, the Escrow Agreement or otherwise.
(d) The grant of authority provided for in this Section 2.11 (i) is coupled with an interest and is being grantedthe Tax Escrow Agreement shall constitute notice to or from the Indemnifying Stockholders, in partthe Company Stockholders or the Principals, as an inducement applicable, with respect to such matters. A decision, act, consent or instruction of either Stockholder Representative with respect to matters under this Agreement, the Acquiror Escrow Agreement or the Tax Escrow Agreement shall be final, binding and Sub to enter into this Agreement conclusive upon the Company Stockholders, and the Escrow AgreementAgent and the Buyer may rely upon any such decision, and shall be irrevocable and survive act, consent or instruction either of the dissolutionStockholder Representatives as being the decision, liquidation act, consent or bankruptcy instruction of the Company Stockholders with respect to such matters. If two or more people are collectively named as the deathStockholder Representatives, incompetency, liquidation or bankruptcy the action of any stockholder or optionholder one of such persons shall be sufficient to constitute action on the part of the CompanyStockholder Representatives. In the event that the two or more such people take or attempt to take inconsistent actions, such persons shall promptly resolve such inconsistency; and in the event that such inconsistency cannot be resolved, then Xxxx X. Xxxxxxxxxxx (or, in the event that Xxxx X. Xxxxxxxxxxx has been removed from, or has vacated, his position as Stockholder Representative, then the individual appointed by the holders of a majority-in-interest of the Escrow Shares and Escrow Cash, to fill the resulting vacancy in the position of Stockholder Representative) shall be binding on entitled to act as the Stockholder Representative with respect to such matter. The Escrow Agent and the Buyer are hereby relieved from any successor thereto and (ii) shall survive the assignment liability to any person for any acts done by any stockholder them in accordance with such decision, act, consent or optionholder instruction of either of the Stockholder Representatives. The Company of the whole or any portion of his, her or its interest in the Escrow Fund.
(e) In connection with the performance of his or its obligations hereunder, Stockholders hereby agree that the Stockholder Representatives shall have the right, acting together, at any time and from time no liability to time to select and engage, at the cost and expense of the stockholders and optionholders of the Company (as contemplated Stockholders for any action taken by Section 2.11(b)), attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as he or it may deem necessary or desirable and incur other out-of-pocket expenses related to performing his or its services hereunder.
(f) All of the immunities and powers granted to the Stockholder Representatives under this Agreement with respect to this Agreement and the Escrow Agreement shall survive the Closing and/or any termination of this Agreement, except that such powers shall terminate upon termination of this Agreementin good faith.
Appears in 1 contract
Samples: Merger Agreement (Bottomline Technologies Inc /De/)
Stockholder Representatives. (a) The parties hereto agree that it is desirable to designate TA Associates Management, L.P. From the date hereof and Xxxxx Xxxx as the representatives without further act of the Company’s stockholders and optionholders and their attorneys in fact (each a “Stockholder Representative” and collectivelyany Seller, the “Stockholder Representatives”)Representatives are hereby appointed as agents and attorneys-in-fact for each Seller, for and on behalf of each such Seller, with full power of substitution and authority to act on behalf of represent the Company’s stockholders Sellers and optionholders (only their successors with respect to their interests as stockholders and optionholders under this Agreement and the Escrow Agreement) to the extent and in the manner set forth in this Agreement and the Escrow Agreement but not with respect to any amendments to this Agreement or the Escrow Agreement. The Company has designated the Stockholder Representatives as the representatives of the Company’s stockholders and optionholders for purposes of this Agreement and the Escrow Agreement, and approval of this Agreement and the Merger by such holders shall constitute ratification and approval of such designation on the terms set forth herein. All decisions, actions, consents and instructions by the Stockholder Representatives with respect to this Agreement and the Escrow Agreement (but not with respect to any amendments hereto or thereto) shall be binding upon all of the stockholders and optionholders of the Company with respect to their interests as stockholders and optionholders under this Agreement and the Escrow Agreement, and no such stockholder shall have the right to object to, dissent from, protest or otherwise contest the same. The Stockholder Representatives shall act in unanimity with respect to any decision, action, consent or instruction contemplated by this Agreement and in all communications with the Acquiror and the Sub, and the Acquiror and Sub shall be entitled to rely on any such decision, action, consent or instruction as being the decision, action, consent or instruction of the Company’s stockholders and optionholders, and the Acquiror and Sub are hereby relieved from any liability to any Person for acts done by them in accordance with any such decision, act, consent or instruction. By way of amplification and not limitation, as Stockholder Representatives, the Stockholder Representatives shall be authorized and empowered, as agents of and on behalf of all stockholders and optionholders of the Company (only with respect to their interests as stockholders and optionholders) to give and receive notices and communications as provided herein, to object to any Acquiror Indemnification Claims, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims or Losses, to waive after the Effective Time any breach or default of the Acquiror or Sub of any obligation to be performed by it under this Agreement, to receive service of process on behalf of each stockholder and optionholder of the Company in connection with any claims against such stockholder or optionholder matters arising under or in connection with this Agreement, any document or instrument provided for hereby (other than Employment Agreements, Non-Competition Agreements and Non-Solicitation Agreements) or any of the transactions contemplated hereby or under any Ancillary Agreement, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representatives for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Notices or communications to or from both of the Stockholder Representatives shall constitute notice to or from the stockholders and optionholders of the Company.
(b) A Stockholder Representative may resign at any time, and in the event of the death, incapacity or resignation of a Stockholder Representative, a new Stockholder Representative may be appointed by the vote or written consent of stockholders holding a majority of the aggregate Fully Diluted Shares immediately prior to the Effective Time, except that, with respect to any resignation, death, or incapacity of Xxxxx Xxxx as a Stockholder Representative, the holders of a majority of the outstanding shares of Class A Common Stock as of the date hereof shall have the right to appoint such replacement Stockholder Representative. Notice of such vote or a copy of the written consent appointing such new Stockholder Representative shall be sent to the Acquiror and, after the Effective Time, to the Surviving Corporation, such appointment to be effective upon the later of the date indicated in such consent and the date such consent is received by the Acquiror and, after the Effective Time, the Surviving Corporation; provided that until such notice is received, the Acquiror, Sub and the Surviving Corporation, as applicable, shall be entitled to rely on the decisions, actions, consents and instructions of the prior Stockholder Representative as described in Section 2.11(a). Each Stockholder Representative may charge a reasonable fee, not to exceed $50,000 per Stockholder Representative per year, for his or its services subject to the approval of the other Stockholder Representative; provided that all fees and expenses incurred by the Stockholder Representatives in performing his or its duties hereunder (including legal fees and expenses related thereto) and any indemnification in favor of the Stockholder Representatives shall be borne by the stockholders and optionholders of the Company (other than holders of Dissenting Shares) pro rata in accordance with the portion of the Merger Consideration each such stockholder or optionholder would otherwise have been entitled to receive under Section 2.9(c), by virtue of the ownership of outstanding Shares or options immediately prior to the Effective Time (each such stockholder’s and optionholder’s pro rata interest, a “Pro Rata Share”) in the manner provided in the Escrow Agreement.
(c) In dealing with this Agreement and any notice, instrument, agreement or document relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholder Representatives hereunder or thereunder, (i) the Stockholder Representatives and his or its agents, counsel, accountants and other representatives shall not assume any, and shall not incur any, responsibility whatsoever (in each case, to the extent permitted by applicable Law) to any stockholder or optionholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation, including, without limitation, by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or any such other agreement, instrument or document, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted willful misconduct or fraud, and (ii) the Stockholder Representatives shall be entitled to rely in good faith on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholder Representatives pursuant to such advice shall in no event subject the Stockholder Representatives to liability to any stockholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation. Except in cases where a court of competent jurisdiction has made such a finding, the stockholders and optionholders of the Company shall on a pro rata basis (based on each such stockholder’s and optionholder’s Pro Rata Share) indemnify and hold harmless the Stockholder Representatives from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with his or its activities as the Stockholder Representatives under this Agreement, the Escrow Agreement or otherwise.
(d) The grant of authority provided for in this Section 2.11 (i) is coupled with an interest and is being granted, in part, as an inducement to the Acquiror and Sub to enter into this Agreement and the Escrow AgreementExpense Fund, and shall be irrevocable and survive all actions taken by the dissolution, liquidation or bankruptcy of the Company or the death, incompetency, liquidation or bankruptcy of any stockholder or optionholder of the Company, Stockholder Representatives hereunder shall be binding on any successor thereto upon such Sellers and (ii) shall survive their successors as if expressly ratified and confirmed in writing by each of them. Without limiting the assignment by any stockholder or optionholder generality of the Company of the whole or any portion of his, her or its interest in the Escrow Fund.
(e) In connection with the performance of his or its obligations hereunderforegoing, the Stockholder Representatives shall have full power and authority, on behalf of all the rightSellers and their successors, acting togetherto interpret all the terms and provisions of this Agreement, at to assist the Company in negotiating the terms of this Agreement, to waive any time and from time to time to select and engage, at the cost and expense condition on behalf of the stockholders and optionholders Sellers under Section 8 hereof, to terminate this Agreement on behalf of the Sellers pursuant to Section 10 hereof, to incur expenses in connection with their duties and actions hereunder as Stockholder Representatives, to expend funds to pay those expenses, to direct the Escrow Agent to disburse the Expense Fund to pay those expenses directly or to reimburse one or more of the Stockholder Representatives who paid such expenses, to specify the expenses of this transaction to be paid by the Company (as contemplated and advanced by the Buyer in accordance with Section 2.11(b))6.17,to require additional amounts to be added to the Expense Fund, attorneysto dispute or fail to dispute any claims of Damages against the Escrow Fund made by an indemnified party, accountantsto assert claims of Damages against any indemnifying party, investment bankersto negotiate and compromise any dispute which may arise under this Agreement, advisors, consultants and clerical personnel and obtain to sign any releases or other documents with respect to any such other professional and expert assistancedispute, and maintain to authorize delivery of any amounts pursuant to the Escrow Fund or any other payments to be made with respect thereto. All determinations of the Stockholder Representatives shall be decided by a majority thereof.
(b) The Stockholder Representatives, or any successors hereafter appointed, may resign and shall be discharged of their duties hereunder upon the appointment of any successor Stockholder Representatives as hereinafter provided. In case of such recordsresignation, or in the event of the death or inability to act of a Stockholder Representative, a successor shall be named from among the Representing Stockholders by a majority of the persons listed on Schedule 6.16(b). Each such successor Stockholder Representative shall have all the power, authority, rights and privileges hereby conferred upon the initial Stockholder Representatives, and the term "Stockholder Representatives" as he used herein shall be deemed to include such successor Stockholder Representatives.
(c) In performing any of their duties under this Agreement, or it upon the claimed failure to perform their duties hereunder, the Stockholders Representatives shall not be liable to the Sellers for any damages, losses or expenses which they may deem necessary incur as a result of any act, or desirable failure to act under this Agreement; provided, however, that the Stockholder Representatives shall be liable to the Sellers for damages arising only out of actions or omissions that both (i) were taken or omitted not in good faith and (ii) constituted willful default or gross negligence under this Agreement. Accordingly, the Stockholder Representatives shall not incur other out-of-pocket any such liability to the Sellers with respect to (i) any action taken or omitted to be taken in good faith upon advice of their counsel given with respect to any questions relating to the duties and responsibilities of the Stockholder Representatives hereunder; or (ii) any action taken or omitted to be taken in reliance upon any document, including any written notice or instructions provided for in this Agreement, the Escrow Agreement or the Escrow Fund, not only as to its due execution and to the validity and effectiveness of its provisions, but also as to the truth and accuracy of any information contained therein, which the Stockholder Representatives shall in good faith believe to be genuine, to have been signed or presented by the purported proper person or persons and to conform with the provisions of this Agreement, the Escrow Agreement and the Escrow Fund. The limitation of liability provisions of this Section 6.16(c) shall survive the termination of this Agreement and the resignation of the Stockholder Representatives but shall in no way limit the liability of the Sellers towards Parent or the Buyer under the terms of this Agreement. The Sellers shall severally indemnify the Stockholder Representatives and hold them harmless against any loss, liability or expense (including any expenses related to performing his of legal counsel retained by the Stockholder Representatives) incurred without willful default, gross negligence or its services bad faith on the part of the Stockholder Representatives and arising out of or in connection with the acceptance or administration of their duties hereunder.
(fd) All of Each Seller acknowledges and agrees that the immunities Buyer is entitled to rely on, and powers granted to that the Sellers shall be bound by, any statement or agreement made by the Stockholder Representatives under this Agreement on their behalf in accordance with respect to this Agreement and the Escrow Agreement shall survive the Closing and/or any termination of this Agreement, except that such powers shall terminate upon termination of this Agreement.
(e) Each Representing Stockholder hereby agrees that the Stockholders Representatives shall be entitled to require an additional payment to the Escrow Agent of cash to replenish the Expense Fund in the event that it has been expended in accordance with Section 1.09(c) and that, within 30 days of notice of such requirement, each Representing Stockholder shall pay his or her pro rata share of such additional requirement to the Escrow Agent.
Appears in 1 contract
Stockholder Representatives. (a) The parties hereto agree that it is desirable to designate TA Associates Management, L.P. and Xxxxx Xxxx as the representatives of the Company’s stockholders and optionholders and their attorneys in fact (each a “Stockholder Representative” and collectively, the “Stockholder Representatives”), with full power ” shall be designated in writing by the Company by notice to Parent prior to the Effective Time. Each of substitution to act the Stockholder Representatives shall be constituted and appointed as agent and attorney-in-fact for and on behalf of each of the Company’s stockholders Company Stockholders receiving consideration pursuant to Article I. The Stockholder Representatives shall have full power and optionholders (only authority to represent all of such Company Stockholders and their successors with respect to their interests as stockholders and optionholders all matters arising under this Agreement and the Escrow Agreement) to Indemnity Agreement and all actions taken by the extent Stockholder Representatives hereunder and thereunder shall be binding upon all such Company Stockholders and their successors as if expressly confirmed and ratified in the manner set forth in writing by each of them. The Stockholder Representatives shall take any and all actions which they believe are necessary or appropriate under this Agreement and the Escrow Indemnity Agreement but not for and on behalf of such Company Stockholders, as fully as if the Company Stockholders were acting on their own behalf, including, without limitation, defending all indemnity claims pursuant to Section 8.2, consenting to, compromising or settling all such indemnity claims, conducting negotiations with respect to any amendments to Parent and the Indemnity Agent under this Agreement and the Indemnity Agreement, taking any and all other actions specified in or contemplated by this Agreement and the Escrow Indemnity Agreement, and engaging counsel, accountants or other Stockholder Representatives in connection with the foregoing matters. The Company has designated Without limiting the generality of the foregoing, the Stockholder Representatives as shall have full power and authority to interpret all the representatives of the Company’s stockholders terms and optionholders for purposes provisions of this Agreement and the Escrow Agreement, and approval of this Indemnity Agreement and the Merger by to consent to any amendment hereof or thereof on behalf of all such holders shall constitute ratification Company Stockholders and approval of such designation on the terms set forth hereinsuccessors. All decisions, actions, consents and instructions by The Persons designated to serve as the Stockholder Representatives with respect may be changed by the holders of a majority in interest of the Indemnity Fund from time to this Agreement time upon not less than 15 days’ prior written notice to Parent. No bond shall be required of the Stockholder Representatives, and the Escrow Agreement (but not with respect to any amendments hereto or thereto) Stockholder Representatives shall be binding upon all of the stockholders and optionholders of the Company with respect to their interests as stockholders and optionholders receive no compensation for services performed under this Agreement and the Escrow Agreement, and no such stockholder shall have the right to object to, dissent from, protest or otherwise contest the same. The Stockholder Representatives shall act in unanimity with respect to any decision, action, consent or instruction contemplated by this Agreement and in all communications with the Acquiror and the Sub, and the Acquiror and Sub shall be entitled to rely on any such decision, action, consent or instruction as being the decision, action, consent or instruction of the Company’s stockholders and optionholders, and the Acquiror and Sub are hereby relieved from any liability to any Person for acts done by them in accordance with any such decision, act, consent or instruction. By way of amplification and not limitation, as Stockholder Representatives, the Stockholder Representatives shall be authorized and empowered, as agents of and on behalf of all stockholders and optionholders of the Company (only with respect to their interests as stockholders and optionholders) to give and receive notices and communications as provided herein, to object to any Acquiror Indemnification Claims, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims or Losses, to waive after the Effective Time any breach or default of the Acquiror or Sub of any obligation to be performed by it under this Agreement, to receive service of process on behalf of each stockholder and optionholder of the Company in connection with any claims against such stockholder or optionholder arising under or in connection with this Agreement, any document or instrument provided for hereby (other than Employment Agreements, Non-Competition Agreements and Non-Solicitation Agreements) or any of the transactions contemplated hereby or under any Ancillary Agreement, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representatives for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Indemnity Agreement. Notices or communications to or from both of the Stockholder Representatives shall constitute notice to or from the stockholders and optionholders of the Company.
(b) A Stockholder Representative may resign at any time, and in the event of the death, incapacity or resignation of a Stockholder Representative, a new Stockholder Representative may be appointed by the vote or written consent of stockholders holding a majority of the aggregate Fully Diluted Shares immediately prior to the Effective Time, except that, with respect to any resignation, death, or incapacity of Xxxxx Xxxx as a Stockholder Representative, the holders of a majority of the outstanding shares of Class A Common Stock as of the date hereof shall have the right to appoint such replacement Stockholder Representative. Notice of such vote or a copy of the written consent appointing such new Stockholder Representative shall be sent to the Acquiror and, after the Effective Time, to the Surviving Corporation, such appointment to be effective upon the later of the date indicated in such consent and the date such consent is received by the Acquiror and, after the Effective Time, the Surviving Corporation; provided that until such notice is received, the Acquiror, Sub and the Surviving Corporation, as applicable, shall be entitled to rely on the decisions, actions, consents and instructions of the prior Stockholder Representative as described in Section 2.11(a). Each Stockholder Representative may charge a reasonable fee, not to exceed $50,000 per Stockholder Representative per year, for his or its services subject to the approval of the other Stockholder Representative; provided that all fees and Any expenses incurred by the Stockholder Representatives in performing his or its duties connection with their services hereunder shall be reimbursed from the Indemnity Fund upon presentation of appropriate expense documentation as and to the extent expressly provided in the Indemnity Agreement.
(including legal fees and expenses related theretob) and any indemnification in favor of the The Stockholder Representatives shall not be borne by liable to the stockholders Company Stockholders for any act done or omitted hereunder or under the Indemnity Agreement as Stockholder Representatives while acting in good faith and optionholders in the exercise of reasonable judgment, and any act done or omitted pursuant to the written advice of counsel shall be conclusive evidence of such good faith. The Company Stockholders shall severally indemnify the Stockholders Representatives and hold them harmless from and against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Company (other than holders Stockholders Representatives and arising out of Dissenting Shares) pro rata or in accordance connection with the portion acceptance and administration of the Merger Consideration each such stockholder or optionholder would otherwise have been entitled to receive under Section 2.9(c), by virtue of the ownership of outstanding Shares or options immediately prior to the Effective Time (each such stockholder’s and optionholder’s pro rata interest, a “Pro Rata Share”) in the manner provided in the Escrow Agreementtheir duties hereunder.
(c) In dealing with this Agreement and any notice, instrument, agreement or document relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholder Representatives hereunder or thereunder, (i) the Stockholder Representatives and his or its agents, counsel, accountants and other representatives shall not assume any, and shall not incur any, responsibility whatsoever (in each case, to the extent permitted by applicable Law) to any stockholder or optionholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation, including, without limitation, by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or any such other agreement, instrument or document, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted willful misconduct or fraud, and (ii) the The Stockholder Representatives shall be entitled to rely in good faith on the advice of counsel, public accountants treat confidentially and not disclose any nonpublic information from or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholder Representatives pursuant to such advice shall in no event subject the Stockholder Representatives to liability to any stockholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation. Except in cases where a court of competent jurisdiction has made such a finding, the stockholders and optionholders of the Company shall on a pro rata basis (based on each such stockholder’s and optionholder’s Pro Rata Share) indemnify and hold harmless the Stockholder Representatives from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with his or its activities as the Stockholder Representatives under this Agreement, the Escrow Agreement or otherwise.
(d) The grant of authority provided for in this Section 2.11 (i) is coupled with an interest and is being granted, in part, as an inducement to the Acquiror and Sub to enter into this Agreement and the Escrow Agreement, and shall be irrevocable and survive the dissolution, liquidation or bankruptcy of about the Company or the death, incompetency, liquidation Parent or bankruptcy of any stockholder or optionholder of the Company, shall be binding their respective Subsidiaries to anyone (except on any successor thereto and (ii) shall survive the assignment by any stockholder or optionholder of the Company of the whole or any portion of his, her or its interest in the Escrow Funda need to know basis to individuals who agree to treat such information confidentially).
(e) In connection with the performance of his or its obligations hereunder, the Stockholder Representatives shall have the right, acting together, at any time and from time to time to select and engage, at the cost and expense of the stockholders and optionholders of the Company (as contemplated by Section 2.11(b)), attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as he or it may deem necessary or desirable and incur other out-of-pocket expenses related to performing his or its services hereunder.
(f) All of the immunities and powers granted to the Stockholder Representatives under this Agreement with respect to this Agreement and the Escrow Agreement shall survive the Closing and/or any termination of this Agreement, except that such powers shall terminate upon termination of this Agreement.
Appears in 1 contract
Stockholder Representatives. (a) The parties hereto agree that it Each Management Holder hereby designates and appoints (and each Permitted Transferee of each such Management Holder is desirable hereby deemed to designate TA Associates Management, L.P. have so designated and Xxxxx Xxxx as the representatives of the Company’s stockholders and optionholders and their attorneys in fact (each a “Stockholder Representative” and collectively, the “Stockholder Representatives”), with appointed) Bernxxx X. Xxxxxxx xxxh full power of substitution to act on behalf of (the Company’s stockholders and optionholders (only with respect to their interests as stockholders and optionholders under this Agreement and the Escrow Agreement) to the extent and in the manner set forth in this Agreement and the Escrow Agreement but not with respect to any amendments to this Agreement or the Escrow Agreement. The Company has designated the Stockholder Representatives "MANAGEMENT HOLDER REPRESENTATIVE"), as the representatives representative of the Company’s stockholders and optionholders for purposes of this Agreement and the Escrow Agreementeach such person to perform all such acts as are required, and approval of this Agreement and the Merger by such holders shall constitute ratification and approval of such designation on the terms set forth herein. All decisions, actions, consents and instructions by the Stockholder Representatives with respect to this Agreement and the Escrow Agreement (but not with respect to any amendments hereto authorized or thereto) shall be binding upon all of the stockholders and optionholders of the Company with respect to their interests as stockholders and optionholders under this Agreement and the Escrow Agreement, and no such stockholder shall have the right to object to, dissent from, protest or otherwise contest the same. The Stockholder Representatives shall act in unanimity with respect to any decision, action, consent or instruction contemplated by this Agreement to be performed by any such person and in all communications hereby acknowledges that the Management Holder Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by each such person. Each such person further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the Acquiror death or incapacity of such person. Each such person hereby authorizes (and each such Permitted Transferee will be deemed to have authorized) the Sub, other parties hereto to disregard any notice or other action taken by such person pursuant to this Agreement except for the Management Holder Representative. The other parties hereto are and the Acquiror and Sub shall will be entitled to rely on any action so taken or any notice given by the Management Holder Representative and are and will be entitled and authorized to give notices only to the Management Holder Representative for any notice contemplated by this Agreement to be given to any such decision, action, consent or instruction as being person. A successor to the decision, action, consent or instruction Management Holder Representative may be chosen by a majority in interest of the Company’s stockholders and optionholdersShares held by the Management Holders, and provided that notice thereof is given by the Acquiror and Sub are hereby relieved from any liability new Management Holder Representative to any Person for acts done by them in accordance with any such decision, act, consent or instruction. By way of amplification and not limitation, as Stockholder Representatives, the Stockholder Representatives shall be authorized and empowered, as agents of and on behalf of all stockholders and optionholders of the Company and to the other Stockholders (only with respect to or their interests as stockholders and optionholders) to give and receive notices and communications as provided herein, to object to any Acquiror Indemnification Claims, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims or Losses, to waive after the Effective Time any breach or default of the Acquiror or Sub of any obligation to be performed by it representatives established under this Agreement, to receive service of process on behalf of each stockholder and optionholder of the Company in connection with any claims against such stockholder or optionholder arising under or in connection with this Agreement, any document or instrument provided for hereby (other than Employment Agreements, Non-Competition Agreements and Non-Solicitation Agreements) or any of the transactions contemplated hereby or under any Ancillary Agreement, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representatives for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Notices or communications to or from both of the Stockholder Representatives shall constitute notice to or from the stockholders and optionholders of the CompanySection 4.9).
(b) A Stockholder Representative may resign at any time, Each Continuing Holder hereby designates and in the event appoints (and each Permitted Transferee of the death, incapacity or resignation of a Stockholder Representative, a new Stockholder Representative may be appointed by the vote or written consent of stockholders holding a majority of the aggregate Fully Diluted Shares immediately prior to the Effective Time, except that, with respect to any resignation, death, or incapacity of Xxxxx Xxxx as a Stockholder Representative, the holders of a majority of the outstanding shares of Class A Common Stock as of the date hereof shall have the right to appoint such replacement Stockholder Representative. Notice of such vote or a copy of the written consent appointing such new Stockholder Representative shall be sent to the Acquiror and, after the Effective Time, to the Surviving Corporation, such appointment to be effective upon the later of the date indicated in such consent and the date such consent is received by the Acquiror and, after the Effective Time, the Surviving Corporation; provided that until such notice is received, the Acquiror, Sub and the Surviving Corporation, as applicable, shall be entitled to rely on the decisions, actions, consents and instructions of the prior Stockholder Representative as described in Section 2.11(a). Each Stockholder Representative may charge a reasonable fee, not to exceed $50,000 per Stockholder Representative per year, for his or its services subject to the approval of the other Stockholder Representative; provided that all fees and expenses incurred by the Stockholder Representatives in performing his or its duties hereunder (including legal fees and expenses related thereto) and any indemnification in favor of the Stockholder Representatives shall be borne by the stockholders and optionholders of the Company (other than holders of Dissenting Shares) pro rata in accordance with the portion of the Merger Consideration each such stockholder or optionholder would otherwise have been entitled to receive under Section 2.9(c), by virtue of the ownership of outstanding Shares or options immediately prior to the Effective Time (each such stockholder’s and optionholder’s pro rata interest, a “Pro Rata Share”) in the manner provided in the Escrow Agreement.
(c) In dealing with this Agreement and any notice, instrument, agreement or document relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholder Representatives hereunder or thereunder, (i) the Stockholder Representatives and his or its agents, counsel, accountants and other representatives shall not assume any, and shall not incur any, responsibility whatsoever (in each case, to the extent permitted by applicable Law) to any stockholder or optionholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation, including, without limitation, by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or any such other agreement, instrument or document, except to the extent such actions shall have been determined by a court of competent jurisdiction Continuing Holder is hereby deemed to have constituted willful misconduct or fraud, so designated and (iiappointed) the Stockholder Representatives shall be entitled to rely in good faith on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholder Representatives pursuant to such advice shall in no event subject the Stockholder Representatives to liability to any stockholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation. Except in cases where a court of competent jurisdiction has made such a finding, the stockholders and optionholders of the Company shall on a pro rata basis (based on each such stockholder’s and optionholder’s Pro Rata Share) indemnify and hold harmless the Stockholder Representatives from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with his or its activities as the Stockholder Representatives under this Agreement, the Escrow Agreement or otherwise.
(d) The grant of authority provided for in this Section 2.11 (i) is coupled with an interest and is being granted, in part, as an inducement to the Acquiror and Sub to enter into this Agreement and the Escrow Agreement, and shall be irrevocable and survive the dissolution, liquidation or bankruptcy of the Company or the death, incompetency, liquidation or bankruptcy of any stockholder or optionholder of the Company, shall be binding on any successor thereto and (ii) shall survive the assignment by any stockholder or optionholder of the Company of the whole or any portion of his, her or its interest in the Escrow Fund.
(e) In connection with the performance of his or its obligations hereunder, the Stockholder Representatives shall have the right, acting together, at any time and from time to time to select and engage, at the cost and expense of the stockholders and optionholders of the Company (as contemplated by Section 2.11(b)), attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as he or it may deem necessary or desirable and incur other out-of-pocket expenses related to performing his or its services hereunder.
(f) All of the immunities and powers granted to the Stockholder Representatives under this Agreement with respect to this Agreement and the Escrow Agreement shall survive the Closing and/or any termination of this Agreement, except that such powers shall terminate upon termination of this Agreement.Timoxxx X.
Appears in 1 contract
Samples: Stockholders' Agreement (Eye Care Centers of America Inc)
Stockholder Representatives. (aA) The parties hereto agree that it is desirable In order to designate TA Associates Managementefficiently administer the transactions contemplated hereby, L.P. including (i) the defense and/or settlement of any claims for which the Stockholders may be required to indemnify the ABI Indemnified Parties (as defined in Section 13.3 hereof) pursuant to Section 13 hereof, (ii) the exercise of the rights hereunder of Stockholders and, if any, the Assumed Option Exercising Holders and the Assumed Warrant Exercising Holders, and (iii) the orderly distribution of the Merger Consideration from ABI to the Stockholders and, if any, the Assumed Option Exercising Holders and the Assumed Warrant Exercising Holders, each of the Company, the Stockholders, the Optionholders, the Warrantholders and, if any, the Assumed Option Exercising Holders and the Assumed Warrant Exercising Holders hereby designates Xxxxxx Xxxxxxxx, Xxxxx Xxxx Xxxxxxxx and Xxxxxxx Xxxxxxxx, Ph.D., acting by majority vote, as the representatives of the Company’s stockholders and optionholders and their attorneys in fact (each a “Stockholder Representative” and collectivelyStockholders, the “Optionholders, the Warrantholders and, if any, the Assumed Option Exercising Holders and the Assumed Warrant Exercising Holders (in such capacity, the "Stockholder Representatives”").
(B) The Company, the Stockholders, the Optionholders, the Warrantholders and, if any, the Assumed Option Exercising Holders and the Assumed Warrant Exercising Holders hereby authorize the Stockholder Representatives, acting by majority vote, (i) to take all action necessary in connection with the defense and/or settlement of any claims for which the Stockholders may be required to indemnify the ABI Indemnified Parties pursuant to Section 13 hereof, (ii) to determine the Stockholders and, if any, the Assumed Option Exercising Holders and the Assumed Warrant Exercising Holders to whom Merger Consideration from ABI shall be distributed, the amount of consideration to be so distributed, and the address of such Stockholders and, if any, such Assumed Option Exercising Holders and such Assumed Warrant Exercising Holders, and to receive such Merger Consideration and distribute it pursuant to Section 3.6 and Section 5.1 hereof, (iii) to amend, modify, change, waive or supplement any provision of this Agreement at any time and from time to time after the Effective Time, including, without limitation, Sections 3.6(a), with full power 3.8, 3.9, 5.1 and 13 hereof, and thereby change, modify or amend any of substitution the rights and obligations under this Agreement of the Stockholders, the Optionholders, the Warrantholders and, if any, the Assumed Option Exercising Holders and the Assumed Warrant Exercising Holders, (iv) to act give and receive all notices required to be given under this Agreement to or from the Stockholders, the Optionholders, the Warrantholders and, if any, the Assumed Option Exercising Holders and the Assumed Warrant Exercising Holders, and (iv) to take any and all additional action as is contemplated to be taken by or on behalf of the Company’s stockholders and optionholders (only with respect to their interests as stockholders and optionholders under this Agreement Stockholders, the Optionholders, the Warrantholders and, if any, the Assumed Option Exercising Holders and the Escrow Agreement) to Assumed Warrant Exercising Holders by the extent and in the manner set forth in this Agreement and the Escrow Agreement but not with respect to any amendments to terms of this Agreement or to enforce against ABI its obligations under the Escrow terms of this Agreement. The Company has designated In order for any action, consent, approval or determination taken or made by the Stockholder Representatives as the representatives to be valid, binding and enforceable, it must be taken or made by majority vote of the Company’s stockholders Stockholder Representatives. None of the Stockholder Representatives shall have any power or authority to take any action individually without the others, and, in the event that any of the Stockholder Representatives takes any action individually without the others, such action shall not be binding or of any force or effect whatsoever.
(C) In the event that Xxxxxx Xxxxxxxx, Xxxxx Xxxxxxxx or Xxxxxxx Xxxxxxxx, Ph.D. or their respective substitutes as one of the Stockholder Representatives, dies, becomes unable to perform his responsibilities hereunder or resigns from such position, those Stockholders (other than holders of Dissenting Shares), Optionholders and optionholders Warrantholders that, collectively, held shares of Company Stock immediately prior to the Effective Time representing more than fifty percent (50%) of the voting power of all shares of Company Stock then outstanding (the number of shares of Company Stock then outstanding being calculated for purposes of this Section 4.7(c) as if all Assumed Options and Assumed Warrants had been exercised immediately prior to the Effective Time), voting together as a single class, shall select another representative to fill such vacancy and such substituted representative shall be deemed to a Stockholder Representative for all purposes of this Agreement and the Escrow Agreementdocuments delivered pursuant hereto.
(D) All decisions and actions by a majority of the Stockholder Representatives, and approval including without limitation any agreement between a majority of this Agreement and the Merger by such holders shall constitute ratification and approval of such designation on the terms set forth herein. All decisions, actions, consents and instructions by the Stockholder Representatives with respect and ABI relating to this Agreement and the Escrow Agreement (but not with respect defense or settlement of any claims for which the Stockholders may be required to any amendments hereto or thereto) indemnify the ABI Indemnified Parties pursuant to Section 13 hereof, shall be binding upon all of the stockholders and optionholders of Stockholders, the Company with respect to their interests as stockholders and optionholders under this Agreement Optionholders, the Warrantholders and, if any, the Assumed Option Exercising Holders and the Escrow AgreementAssumed Warrant Exercising Holders, and no such stockholder Stockholder, Optionholder, Warrantholder or, if any, Assumed Option Exercising Holder or Assumed Warrant Exercising Holder shall have the right to object toobject, dissent fromdissent, protest or otherwise contest the same. The No Stockholder Representatives Representative shall act in unanimity with respect to any decision, action, consent or instruction contemplated by this Agreement and in all communications with the Acquiror and the Sub, and the Acquiror and Sub shall be entitled to rely on any such decision, action, consent or instruction as being the decision, action, consent or instruction of the Company’s stockholders and optionholders, and the Acquiror and Sub are hereby relieved from have any liability to any Person Stockholder, any Optionholder, any Warrantholder, any Assumed Option Exercising Holder or any Assumed Warrant Exercising Holder for acts any act done or omitted hereunder as a Stockholder Representative while acting in good faith and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith.
(E) By virtue of the adoption of this Agreement and the approval of the Merger by them the stockholders of the Company at a meeting of stockholders (or by written consent in lieu of a meeting) pursuant to, and in accordance with with, the applicable provisions of the DGCL, each Stockholder that is not a holder of Dissenting Shares (regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement and the approval of the Merger at such meeting or by written consent), and each Optionholder, each Warrantholder and, if any, each Assumed Option Exercising Holder and each Assumed Warrant Exercising Holder (regardless of whether or not such Optionholder, Warrantholder, Assumed Option Exercising Holder or Assumed Warrant Exercising Holder approves or otherwise consents to this Agreement and the Merger), hereby agrees that:
(I) except in the case of gross negligence or willful misconduct by ABI, ABI shall be able to rely conclusively on the instructions and decisions of a majority of the Stockholder Representatives as to the settlement of any such decisionclaims for indemnification by the ABI Indemnified Parties pursuant to Section 13 hereof, actor as to any other actions required or permitted to be taken by the Stockholder Representatives hereunder, consent and no Stockholder, Optionholder, Warrantholder or, if any, Assumed Option Exercising Holder or instruction. By way Assumed Warrant Exercising Holder shall have any cause of amplification and not limitation, as action against ABI to the extent ABI has relied upon the instructions or decisions of a majority of the Stockholder Representatives;
(II) all actions, decisions and instructions of at least a majority of the Stockholder Representatives shall be authorized conclusive and empowered, as agents of and on behalf of binding upon all stockholders and optionholders of the Company (only with respect to their interests as stockholders Stockholders, the Optionholders, the Warrantholders and, if any, the Assumed Option Exercising Holders and optionholders) to give and receive notices and communications as provided herein, to object to any Acquiror Indemnification Claims, to agree to, negotiate, enter into settlements and compromises ofthe Assumed Warrant Exercising Holders, and demand arbitration and comply with orders no Stockholder, Optionholder, Warrantholder, Assumed Option Exercising Holder or Assumed Warrant Exercising Holder shall have any cause of courts and awards of arbitrators with respect to, such claims or Losses, to waive after the Effective Time action against any breach or default of the Acquiror or Sub of any obligation to be performed by it under this Agreement, to receive service of process on behalf of each stockholder and optionholder of the Company in connection with any claims against such stockholder or optionholder arising under or in connection with this Agreement, any document or instrument provided for hereby (other than Employment Agreements, Non-Competition Agreements and Non-Solicitation Agreements) or any of the transactions contemplated hereby or under any Ancillary Agreement, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representatives for any action taken, decision made or instruction given by the accomplishment Stockholder Representatives, acting by majority vote, under this Agreement, except for fraud or willful breach of this Agreement by the Stockholder Representatives;
(III) the provisions of this Section 4.7 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder, Optionholder, Warrantholder, Assumed Option Exercising Holder or Assumed Warrant Exercising Holder may have in connection with the transactions contemplated by this Agreement;
(IV) remedies available at law for any breach of the foregoing or (ii) specifically mandated by the terms provisions of this Agreement. Notices or communications to or from both of the Stockholder Representatives shall constitute notice to or from the stockholders and optionholders of the Company.
(b) A Stockholder Representative may resign at any timeSection 4.7 are inadequate; therefore, and in the event of the deathABI, incapacity or resignation of a Stockholder Representative, a new Stockholder Representative may be appointed by the vote or written consent of stockholders holding a majority of the aggregate Fully Diluted Shares immediately prior to the Effective Time, except that, with respect to any resignation, death, or incapacity of Xxxxx Xxxx as a Stockholder Representative, the holders of a majority of the outstanding shares of Class A Common Stock as of the date hereof shall have the right to appoint such replacement Stockholder Representative. Notice of such vote or a copy of the written consent appointing such new Stockholder Representative shall be sent to the Acquiror and, after the Effective Time, to Merger Sub and/or the Surviving Corporation, such appointment to be effective upon the later of the date indicated in such consent and the date such consent is received by the Acquiror and, after the Effective Time, the Surviving Corporation; provided that until such notice is received, the Acquiror, Sub and the Surviving Corporation, as applicable, Corporation shall be entitled to rely on seek temporary and permanent injunctive relief without the decisionsnecessity of proving damages if either ABI, actionsMerger Sub and/or the Surviving Corporation brings an action to enforce the provisions of this Section 4.7; and
(V) the provisions of this Section 4.7 shall be binding upon the executors, consents heirs, legal representatives, personal representatives, successor trustees, and instructions successors of each Stockholder, Optionholder, Warrantholder and, if any, Assumed Option Exercising Holder and Assumed Warrant Exercising Holder, and any references in this Agreement to a Stockholder, an Optionholder, a Warrantholder, an Assumed Option Exercising Holder or an Assumed Warrant Exercising Holder shall mean and include the prior Stockholder Representative successors to such Stockholder's, Optionholder's, Warrantholder's, Assumed Option Exercising Holder's or Assumed Warrant Exercising Holder's, as described in Section 2.11(a). Each Stockholder Representative the case may charge a reasonable feebe, not rights hereunder, whether pursuant to exceed $50,000 per Stockholder Representative per yeartestamentary disposition, for his the laws of descent and distribution or its services subject to the approval of the other Stockholder Representative; provided that all otherwise.
(F) All fees and expenses incurred by the Stockholder Representatives in performing his or its duties hereunder (including legal fees and expenses related thereto) and any indemnification in favor of the Stockholder Representatives shall be borne paid by the stockholders and optionholders of the Company Stockholders (other than holders of Dissenting Shares) pro rata and, if any, the Assumed Option Exercising Holders and the Assumed Warrant Exercising Holders in accordance with proportion to the portion amount of the Merger Consideration to which each such stockholder or optionholder would otherwise have been entitled to receive under Section 2.9(c)of them is entitled; provided, by virtue of the ownership of outstanding Shares or options immediately prior to the Effective Time (each such stockholder’s and optionholder’s pro rata interest, a “Pro Rata Share”) in the manner provided in the Escrow Agreement.
(c) In dealing with this Agreement and any notice, instrument, agreement or document relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholder Representatives hereunder or thereunder, (i) the Stockholder Representatives and his or its agents, counsel, accountants and other representatives shall not assume any, and shall not incur any, responsibility whatsoever (in each case, to the extent permitted by applicable Law) to any stockholder or optionholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation, including, without limitation, by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or any such other agreement, instrument or document, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted willful misconduct or fraud, and (ii) the Stockholder Representatives shall be entitled to rely in good faith on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholder Representatives pursuant to such advice shall that in no event subject the Stockholder Representatives to liability to shall any stockholder Stockholder, Assumed Option Exercising Holder or Assumed Warrant Exercising Holder be liable for any such fees or expenses in excess of the Companyaggregate Merger Consideration paid to such Stockholder or, the Acquirorif any, the CompanyAssumed Option Exercising Holder or Assumed Warrant Exercising Holder, Sub or the Surviving Corporation. Except in cases where a court of competent jurisdiction has made such a finding, the stockholders and optionholders of the Company shall on a pro rata basis (based on each such stockholder’s and optionholder’s Pro Rata Share) indemnify and hold harmless the Stockholder Representatives from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with his or its activities as the Stockholder Representatives under this Agreementcase may be, the Escrow Agreement without such Stockholder's or, if any, Assumed Option Exercising Holder's or otherwiseAssumed Warrant Exercising Holder's prior written consent.
(d) The grant of authority provided for in this Section 2.11 (i) is coupled with an interest and is being granted, in part, as an inducement to the Acquiror and Sub to enter into this Agreement and the Escrow Agreement, and shall be irrevocable and survive the dissolution, liquidation or bankruptcy of the Company or the death, incompetency, liquidation or bankruptcy of any stockholder or optionholder of the Company, shall be binding on any successor thereto and (ii) shall survive the assignment by any stockholder or optionholder of the Company of the whole or any portion of his, her or its interest in the Escrow Fund.
(e) In connection with the performance of his or its obligations hereunder, the Stockholder Representatives shall have the right, acting together, at any time and from time to time to select and engage, at the cost and expense of the stockholders and optionholders of the Company (as contemplated by Section 2.11(b)), attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as he or it may deem necessary or desirable and incur other out-of-pocket expenses related to performing his or its services hereunder.
(f) All of the immunities and powers granted to the Stockholder Representatives under this Agreement with respect to this Agreement and the Escrow Agreement shall survive the Closing and/or any termination of this Agreement, except that such powers shall terminate upon termination of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Activbiotics Inc)
Stockholder Representatives. (a) The parties hereto agree that it is desirable to designate TA Associates Management, L.P. and Xxxxx Xxxx as the representatives Each of the Company’s stockholders and optionholders and Stockholders by their attorneys in fact (each a “Stockholder Representative” and collectively, the “Stockholder Representatives”), with full power of substitution to act on behalf of the Company’s stockholders and optionholders (only with respect to their interests as stockholders and optionholders under this Agreement and the Escrow Agreement) to the extent and in the manner set forth in this Agreement and the Escrow Agreement but not with respect to any amendments to this Agreement or the Escrow Agreement. The Company has designated the Stockholder Representatives as the representatives of the Company’s stockholders and optionholders for purposes of this Agreement and the Escrow Agreement, and approval of this Agreement and the Merger by such holders shall constitute ratification Contemplated Transactions hereby appoint Securitas SGP, LLC and approval of such designation on the terms set forth herein. All decisionsAustin Ventures IV-B, actions, consents and instructions by L.P. as the Stockholder Representatives and Securitas SGP, LLC, as Stockholder Note Representative (together the “Representatives”) with full power and authority to execute and deliver any certificates or documents to which the Stockholder is not a party that are required to be delivered at Closing by the Representatives in such capacity on behalf of the Stockholders and, in all events, all such acts shall be fully effective for all purposes of this Agreement. Subject to the terms and conditions of this Agreement, the Representatives, through their authorized representatives, shall have full power and authority to act in all respects hereunder in their sole discretion, as the sole, true and lawful agents, proxies and attorneys-in-fact of each of the Stockholders, with full power and authority to take all actions contemplated by and exercise all rights to be taken in the name of and for and on behalf of the Stockholder with respect to this Agreement and all matters to be performed or otherwise undertaken by the Escrow Agreement (but not with respect to any amendments hereto or thereto) shall be binding upon all of the stockholders and optionholders of the Company with respect to their interests as stockholders and optionholders Representatives under this Agreement and the Escrow AgreementCollateral Documents, and no such stockholder shall have including, but not limited to, (i) the right to object toexecute and deliver certificates, dissent fromreceipts, protest documents and papers that may be necessary or otherwise contest deemed advisable by the same. The Stockholder Representatives shall act in unanimity with respect to any decision, action, consent or instruction carry out the transactions contemplated by this Agreement and in all communications with the Acquiror and the SubCollateral Documents, and generally to act for and in the Acquiror and Sub shall be entitled to rely on any such decision, action, consent or instruction as being the decision, action, consent or instruction of the Company’s stockholders and optionholders, and the Acquiror and Sub are hereby relieved from any liability to any Person for acts done by them in accordance with any such decision, act, consent or instruction. By way of amplification and not limitation, as Stockholder Representatives, the Stockholder Representatives shall be authorized and empowered, as agents of name and on behalf of all stockholders each of the Stockholders with respect to the Merger and optionholders the cancellation of the shares of the stock of the Company (only with respect to their interests as stockholders and optionholders) to give and receive notices and communications as provided herein, to object to any Acquiror Indemnification Claims, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims or Losses, to waive after the Effective Time any breach or default held by each of the Acquiror or Sub of any obligation to be performed by it under this Agreement, Stockholders as fully as could each Stockholder if personally present and acting; (ii) the right to receive service of process the Purchase Price, including the Stockholder Note, on behalf of each stockholder the Stockholder and optionholder of deliver the Company in connection with any claims against such stockholder or optionholder arising under or in connection with this Agreement, any document or instrument provided for hereby (other than Employment Agreements, Non-Competition Agreements and Non-Solicitation Agreements) or any of the transactions contemplated hereby or under any Ancillary AgreementPurchase Price, and payment under the Stockholder Note, to the Stockholders; and (iii) otherwise to take all other actions action that are either (i) the Representatives may consider necessary or appropriate in connection with the judgment consummation of the Stockholder Representatives for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Notices or communications to or from both of the Stockholder Representatives shall constitute notice to or from the stockholders and optionholders of the CompanyContemplated Transactions.
(b) A Each Stockholder Representative may resign at any time, and in the event of the death, incapacity or resignation of a Stockholder Representative, a new Stockholder Representative may be appointed by the vote or written consent of stockholders holding a majority of the aggregate Fully Diluted Shares immediately prior to the Effective Time, except that, with respect to any resignation, death, or incapacity of Xxxxx Xxxx as a Stockholder Representative, the holders of a majority of the outstanding shares of Class A Common Stock as of the date hereof shall have the right to appoint such replacement Stockholder Representative. Notice of such vote or a copy of the written consent appointing such new Stockholder Representative shall be sent to the Acquiror and, after the Effective Time, to the Surviving Corporation, such appointment to be effective upon the later of the date indicated in such consent and the date such consent is received by the Acquiror and, after the Effective Time, the Surviving Corporation; provided that until such notice is received, the Acquiror, Sub and the Surviving Corporation, as applicable, shall be entitled to rely on the decisions, actions, consents and instructions of the prior Stockholder Representative as described in Section 2.11(a). Each Stockholder Representative may charge a reasonable fee, not to exceed $50,000 per Stockholder Representative per year, for his or its services subject to the approval of the other Stockholder Representative; provided that all fees and expenses incurred by the Stockholder Representatives in performing his or its duties hereunder (including legal fees and expenses related thereto) and any indemnification in favor of the Stockholder Representatives shall be borne by the stockholders and optionholders of the Company (other than holders of Dissenting Shares) pro rata in accordance with the portion of the Merger Consideration each such stockholder or optionholder would otherwise have been entitled to receive under Section 2.9(c), by virtue of the ownership of outstanding Shares or options immediately prior to the Effective Time (each such stockholder’s and optionholder’s pro rata interest, a “Pro Rata Share”) in the manner provided in the Escrow Agreement.
(c) In dealing with this Agreement and any notice, instrument, agreement or document relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholder Representatives hereunder or thereunder, (i) the Stockholder Representatives and his or its agents, counsel, accountants and other representatives shall not assume any, and shall not incur any, responsibility whatsoever (in each case, to the extent permitted by applicable Law) to any stockholder or optionholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation, including, without limitation, by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or any such other agreement, instrument or document, except to the extent such actions shall have been determined by a court of competent jurisdiction deemed to have constituted willful misconduct or fraud, conferred and (ii) granted the Stockholder Representatives shall be entitled to rely in good faith on authority contained herein for the advice purpose of counsel, public accountants or other independent experts experienced in completing the matter at issue, Contemplated Transactions. All power and any error in judgment or other act or omission of the Stockholder Representatives pursuant to such advice shall in no event subject the Stockholder Representatives to liability to any stockholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation. Except in cases where a court of competent jurisdiction has made such a finding, the stockholders and optionholders of the Company shall on a pro rata basis (based on each such stockholder’s and optionholder’s Pro Rata Share) indemnify and hold harmless the Stockholder Representatives from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with his or its activities as the Stockholder Representatives under this Agreement, the Escrow Agreement or otherwise.
(d) The grant of authority provided for in this Section 2.11 (i) hereby conferred is coupled with an interest and is being granted, in part, as an inducement irrevocable; and to the Acquiror and Sub to enter into this Agreement and the Escrow Agreementextent not prohibited by law, and shall not be irrevocable and survive the dissolution, liquidation or bankruptcy terminated by any acts of the Company Stockholder or by operation of law or by occurrence of any event whatsoever, including the death, incompetencyincapacity, liquidation dissolution, liquidation, termination, bankruptcy or bankruptcy of any stockholder or optionholder insolvency of the Company, shall be binding on any successor thereto and (ii) shall survive the assignment by any stockholder or optionholder of the Company of the whole or any portion of his, her or its interest in the Escrow FundStockholder.
(e) In connection with the performance of his or its obligations hereunder, the Stockholder Representatives shall have the right, acting together, at any time and from time to time to select and engage, at the cost and expense of the stockholders and optionholders of the Company (as contemplated by Section 2.11(b)), attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as he or it may deem necessary or desirable and incur other out-of-pocket expenses related to performing his or its services hereunder.
(f) All of the immunities and powers granted to the Stockholder Representatives under this Agreement with respect to this Agreement and the Escrow Agreement shall survive the Closing and/or any termination of this Agreement, except that such powers shall terminate upon termination of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Usi Holdings Corp)
Stockholder Representatives. (a) The parties hereto agree that it is desirable to designate TA Associates Management, L.P. and Xxxxx Xxxx as Upon the representatives effectiveness of the Company’s stockholders approval by the holders of Common Stock of the Merger, and optionholders without any further act of any Consideration Recipient, Fusion Acquisition LLC and their attorneys in fact Gamma LP (each a “Stockholder Representative” collectively, and collectivelyacting unanimously, the “Stockholder Representatives”)) shall be, and hereby are, appointed as agents and attorneys-in-fact, for each Consideration Recipient with full power of substitution to act in the name, place and stead of such Consideration Recipient with respect to the transactions contemplated by this Agreement and to act on behalf of such Consideration Recipient in any amendment of or litigation or arbitration involving this Agreement or the Company’s stockholders Escrow Agreement and optionholders to do or refrain from doing all such further acts and things, and to execute all such documents, as such Stockholder Representatives shall deem necessary or appropriate in conjunction with any of the transactions contemplated by this Agreement or the Escrow Agreement, including the power:
(only i) to take all action necessary or desirable in connection with respect the waiver of any condition to their interests as stockholders the obligations of the Company to consummate the transactions contemplated by this Agreement;
(ii) to negotiate, execute and optionholders deliver all ancillary 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 or the Escrow Agreement (it being understood that the Company and any Consideration Recipient, shall execute and deliver any such documents which the Stockholder Representatives agree to execute);
(iii) to terminate this Agreement or the Escrow Agreement if they or the Company are entitled to do so;
(iv) to give and receive all notices, communications and funds to be given or received under this Agreement and the Escrow Agreement) to the extent and in the manner set forth in this Agreement and the Escrow Agreement but not to receive service of process in connection with respect to any amendments to this Agreement or the Escrow Agreement. The Company has designated the Stockholder Representatives as the representatives of the Company’s stockholders and optionholders for purposes of this Agreement and the Escrow Agreement, and approval of this Agreement and the Merger by such holders shall constitute ratification and approval of such designation on the terms set forth herein. All decisions, actions, consents and instructions by the Stockholder Representatives with respect to this Agreement and the Escrow Agreement (but not with respect to any amendments hereto or thereto) shall be binding upon all of the stockholders and optionholders of the Company with respect to their interests as stockholders and optionholders claims under this Agreement and the Escrow Agreement, and no such stockholder shall have including service of process in connection with arbitration;
(v) to bring or defend any claim or action on behalf of the right Consideration Recipients to object to, dissent from, protest or otherwise contest the same. The Stockholder Representatives shall act in unanimity with respect to any decision, action, consent or instruction contemplated by enforce their rights under this Agreement and in all communications connection with the Acquiror transactions contemplated hereby; and
(vi) to take all actions which under this Agreement and the Sub, Escrow Agreement may be taken by any Consideration Recipient and the Acquiror and Sub shall be entitled to rely do or refrain from doing any further act or deed on behalf of any such decision, action, consent or instruction as being the decision, action, consent or instruction of the Company’s stockholders and optionholders, and the Acquiror and Sub are hereby relieved from any liability to any Person for acts done by them in accordance with any such decision, act, consent or instruction. By way of amplification and not limitation, as Stockholder Representatives, Consideration Recipient which the Stockholder Representatives shall be authorized and empowered, as agents of and on behalf of all stockholders and optionholders of the Company (only with respect to their interests as stockholders and optionholders) to give and receive notices and communications as provided herein, to object to any Acquiror Indemnification Claims, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims or Losses, to waive after the Effective Time any breach or default of the Acquiror or Sub of any obligation to be performed by it under this Agreement, to receive service of process on behalf of each stockholder and optionholder of the Company in connection with any claims against such stockholder or optionholder arising under or in connection with this Agreement, any document or instrument provided for hereby (other than Employment Agreements, Non-Competition Agreements and Non-Solicitation Agreements) or any of the transactions contemplated hereby or under any Ancillary Agreement, and to take all other actions that are either (i) deem necessary or appropriate in their sole discretion relating to the judgment of the Stockholder Representatives for the accomplishment of the foregoing or (ii) specifically mandated by the terms subject matter of this Agreement. Notices or communications to or from both of Agreement and the Stockholder Representatives shall constitute notice to or from the stockholders Escrow Agreement as fully and optionholders of the Companycompletely as such Consideration Recipients could do if personally present.
(b) A The Stockholder Representatives will not be liable for any act taken or omitted by it as permitted under this Agreement or the Escrow Agreement, except if such act is taken or omitted in bad faith or gross negligence. The Stockholder Representatives will also be fully protected in relying upon any written notice, demand, certificate or document that they in good faith believes to be genuine (including facsimiles thereof).
(c) Consideration Recipients agree, severally but not jointly, to indemnify (on a pro rata basis based upon their respective Percentage Share) the Stockholder Representatives for, and to hold the Stockholder Representatives harmless against, any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representatives, arising out of or in connection with the Stockholder Representatives’ carrying out their duties under this Agreement, including costs and expenses of successfully defending the Stockholder Representatives against any claim of liability with respect thereto. The Stockholder Representatives may consult with counsel of their own choice and will have full and complete authorization and protection for any action taken and suffered by them in good faith and in accordance with the opinion of such counsel.
(d) If Fusion Acquisition LLC or Gamma LP resigns in writing as a Stockholder Representative may resign at any time, and in the event of the death, incapacity or resignation of a Stockholder Representative, a new Stockholder Representative may be appointed by the vote or written consent of stockholders holding a majority of the aggregate Fully Diluted Shares immediately prior otherwise becomes unable to the Effective Time, except that, with respect to any resignation, death, or incapacity of Xxxxx Xxxx serve as a Stockholder Representative, the holders Fusion Acquisition LLC or Gamma LP, respectively, may designate as a successor Stockholder Representative either (i) an Affiliate of a majority of the outstanding shares of Class A Common Stock as of the date hereof shall have the right to appoint such replacement Stockholder Representative. Notice of such vote Fusion Acquisition LLC or a copy of Gamma LP or (ii) any other person with the written consent appointing of Parent (the “Successor Stockholder Representative”). Upon written acceptance by such new Successor Stockholder Representative to serve as a Stockholder Representative, such Successor Stockholder Representative shall thereupon succeed to and become vested with all of the powers and duties and obligations of the applicable original Stockholder Representative without further act, and such original Stockholder Representative shall be sent discharged from its duties and obligations hereunder but shall continue to have the Acquiror and, after the Effective Time, to the Surviving Corporation, such appointment to be effective upon the later benefits of the date indicated in such consent and the date such consent is received by the Acquiror and, after the Effective Time, the Surviving Corporation; provided that until such notice is received, the Acquiror, Sub and the Surviving Corporation, as applicable, shall be entitled to rely on the decisions, actions, consents and instructions of the prior Stockholder Representative as described in Section 2.11(a). Each Stockholder Representative may charge a reasonable fee, not to exceed $50,000 per Stockholder Representative per year, for his or its services subject to the approval of the other Stockholder Representative; provided that all fees and expenses incurred by the Stockholder Representatives in performing his or its duties hereunder (including legal fees and expenses related thereto) and any indemnification in favor of the Stockholder Representatives shall be borne by the stockholders and optionholders of the Company (other than holders of Dissenting Shares) pro rata in accordance with the portion of the Merger Consideration each such stockholder or optionholder would otherwise have been entitled to receive under Section 2.9(c), by virtue of the ownership of outstanding Shares or options immediately prior to the Effective Time (each such stockholder’s and optionholder’s pro rata interest, a “Pro Rata Share”) in the manner provided in the Escrow Agreement.
(c) In dealing with this Agreement and any notice, instrument, agreement or document relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholder Representatives hereunder or thereunder, (i) the Stockholder Representatives and his or its agents, counsel, accountants and other representatives shall not assume any, and shall not incur any, responsibility whatsoever (in each case, to the extent permitted by applicable Law) to any stockholder or optionholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation, including, without limitation, by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or any such other agreement, instrument or document, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted willful misconduct or fraud, and (ii) the Stockholder Representatives shall be entitled to rely in good faith on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholder Representatives pursuant to such advice shall in no event subject the Stockholder Representatives to liability to any stockholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation. Except in cases where a court of competent jurisdiction has made such a finding, the stockholders and optionholders of the Company shall on a pro rata basis (based on each such stockholder’s and optionholder’s Pro Rata Share) indemnify and hold harmless the Stockholder Representatives from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with his or its activities as the Stockholder Representatives under this Agreement, the Escrow Agreement or otherwise.
(d) The grant of authority provided for set forth in this Section 2.11 (i) is coupled 10.14. Notwithstanding any replacement of such original Stockholder Representative hereunder, the provisions of this Section 10.14 shall continue in effect for the benefit of such original Stockholder Representative with an interest and is being granted, in part, respect to all actions taken or omitted to be taken by it while acting as an inducement to the Acquiror and Sub to enter into this Agreement and the Escrow Agreement, and shall be irrevocable and survive the dissolution, liquidation or bankruptcy of the Company or the death, incompetency, liquidation or bankruptcy of any stockholder or optionholder of the Company, shall be binding on any successor thereto and (ii) shall survive the assignment by any stockholder or optionholder of the Company of the whole or any portion of his, her or its interest in the Escrow Funda Stockholder Representative.
(e) In connection with the performance of his or its obligations hereunder, the Stockholder Representatives shall have the right, acting together, at any time and from time to time to select and engage, at the cost and expense of the stockholders and optionholders of the Company (as contemplated by Section 2.11(b)), attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as he or it may deem necessary or desirable and incur other out-of-pocket expenses related to performing his or its services hereunder.
(f) All of the indemnities, immunities and powers granted to the Stockholder Representatives under this Agreement with respect to this Agreement and the Escrow Agreement shall survive the Closing and/or any termination of this Agreement, except that such powers shall terminate upon termination of this Agreement.
(f) The grant of authority to the Stockholder Representatives provided for in this Section 10.14, (i) is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Consideration Recipient, and (ii) shall survive the Closing.
(g) Upon the approval of the other Stockholder Representative, either Stockholder Representative shall be entitled to withdraw cash amounts from the Stockholder Representative Expense Amount in reimbursement for out-of-pocket fees and expenses (including legal, accounting and other advisors’ fees and expenses, if applicable) incurred by such Stockholder Representative in performing any actions under this Agreement or the Escrow Agreement. Any portion of the Stockholder Representative Expense Amount shall otherwise remain available to the Stockholder Representatives for such purposes until such time as the Stockholder Representatives shall distribute any or all of such funds to the Consideration Recipients based on each such Consideration Recipient’s Percentage Share pursuant to Section 1.04(b). [signature page follows]
Appears in 1 contract
Samples: Merger Agreement (Jarden Corp)
Stockholder Representatives. (a) The parties hereto agree that it is desirable to designate TA Associates ManagementXxxxxx X. Xxxxxx and Xxxxxx X. Xxxx III are hereby constituted, L.P. appointed and Xxxxx Xxxx empowered as the representatives Stockholder Representatives, for the benefit of the Company’s stockholders Company Holders and optionholders the exclusive agents and their attorneys in attorneys-in-fact (each a “Stockholder Representative” and collectively, the “Stockholder Representatives”), with full power of substitution to act on behalf of each Company Holder, in connection with and to facilitate the Company’s stockholders consummation of the transactions contemplated hereby, which shall include the power and optionholders authority: (only with respect i) to their interests as stockholders negotiate, execute and optionholders deliver such waivers, consents and amendments (other than any written consent of the Company Holders adopting this Agreement) under this Agreement and the Escrow Agreementconsummation of the transactions contemplated hereby as the Stockholder Representatives, in their sole discretion, may deem necessary or desirable; (ii) as the Stockholder Representatives, to enforce and protect the extent rights and interests of the Company Holders and to enforce and protect the rights and interests of such Persons arising out of or under or in the any manner set forth in relating to this Agreement and the Escrow Agreement but not with respect transactions provided for herein, and to take any amendments to this Agreement or the Escrow Agreement. The Company has designated and all actions which the Stockholder Representatives believe are necessary or appropriate under this Agreement for and on behalf of the Company Holders including, consenting to, compromising or settling any such claims, conducting negotiations with Parent, the Surviving Corporation and their respective representatives regarding such claims, and, in connection therewith, to (A) assert any claim or institute any action, proceeding or investigation; (B) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Parent, the Surviving Corporation or any other Person, or by any Governmental Entity against the Stockholder Representatives and/or any of the Company Holders, and receive process on behalf of any or all Company Holders in any such claim, action, proceeding or investigation and compromise or settle on such terms as the representatives Stockholder Representatives shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such claim, action, proceeding or investigation; (C) file any proofs of debt, claims and petitions as the Stockholder Representatives may deem advisable or necessary; (D) settle or compromise any claims asserted under this Agreement; and (E) file and prosecute appeals from any decision, judgment or award rendered in any such action, proceeding or investigation, it being understood that the Stockholder Representatives shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions; (iii) to refrain from enforcing any right of the Company’s stockholders Company Holders arising out of or under or in any manner relating to this Agreement; provided, however, that no such failure to act on the part of the Stockholder Representatives, except as otherwise provided in this Agreement, shall be deemed a waiver of any such right or interest by the Stockholder Representatives or by the Company Holders unless such waiver is in writing signed by the waiving party or by the Stockholder Representatives; (iv) to make, execute, acknowledge and optionholders for purposes deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Stockholder Representatives, in their sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement; (v) to engage special counsel, accountants and other advisors and incur such other expenses on behalf of the Company Holders in connection with any matter arising under this Agreement; and (vi) to instruct the Escrow Agent to collect, hold and disburse the Purchase Price Escrow Fund, the General Escrow Fund, the Employee Litigation Escrow Fund, the Keys Additional Employee Litigation Escrow Fund and the Stockholder Representative Escrow Fund in accordance with the terms of this Agreement, the Escrow Agreement and the Litigation Management Agreement.
(b) By voting in favor of the adoption of this Agreement and the Escrow Agreement, and approval consummation of this Agreement and the Merger by or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Company Holder grants unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the specific and limited matters described above, as fully to all intents and purposes as such holders shall constitute ratification Company Holder might or could do in person, hereby ratifying and approval of such designation on the terms set forth herein. All decisions, actions, consents and instructions by confirming all that the Stockholder Representatives with respect may lawfully do or cause to this Agreement and the Escrow Agreement (but not with respect to any amendments hereto or thereto) shall be binding upon all of the stockholders and optionholders of the Company with respect to their interests as stockholders and optionholders under this Agreement and the Escrow Agreement, and no such stockholder shall have the right to object to, dissent from, protest or otherwise contest the same. The Stockholder Representatives shall act in unanimity with respect to any decision, action, consent or instruction contemplated by this Agreement and in all communications with the Acquiror and the Sub, and the Acquiror and Sub shall be entitled to rely on any such decision, action, consent or instruction as being the decision, action, consent or instruction of the Company’s stockholders and optionholders, and the Acquiror and Sub are hereby relieved from any liability to any Person for acts done by them in accordance with any such decisionvirtue hereof. Each Company Holder further acknowledges and agrees that, act, consent or instruction. By way of amplification and not limitation, as Stockholder Representatives, the Stockholder Representatives shall be authorized and empowered, as agents of and on behalf of all stockholders and optionholders of the Company (only with respect to their interests as stockholders and optionholders) to give and receive notices and communications as provided herein, to object to any Acquiror Indemnification Claims, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims or Losses, to waive after the Effective Time any breach or default of the Acquiror or Sub of any obligation to be performed by it under this Agreement, to receive service of process on behalf of each stockholder and optionholder of the Company in connection with any claims against such stockholder or optionholder arising under or in connection with this Agreement, any document or instrument provided for hereby (other than Employment Agreements, Non-Competition Agreements and Non-Solicitation Agreements) or any of the transactions contemplated hereby or under any Ancillary Agreement, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representatives for the accomplishment of the foregoing or (ii) specifically mandated by the terms upon execution of this Agreement. Notices or communications to or from both of the Stockholder Representatives shall constitute notice to or from the stockholders and optionholders of the Company.
(b) A Stockholder Representative may resign at any time, and in the event of the death, incapacity or resignation of a Stockholder Representative, a new Stockholder Representative may be appointed by the vote or written consent of stockholders holding a majority of the aggregate Fully Diluted Shares immediately prior to the Effective Time, except that, with respect to any resignation, death, or incapacity of Xxxxx Xxxx as a Stockholder Representative, the holders of a majority of the outstanding shares of Class A Common Stock as of the date hereof shall have the right to appoint such replacement Stockholder Representative. Notice of such vote or a copy of the written consent appointing such new Stockholder Representative shall be sent to the Acquiror and, after the Effective Time, to the Surviving Corporation, such appointment to be effective upon the later of the date indicated in such consent and the date such consent is received by the Acquiror and, after the Effective Time, the Surviving Corporation; provided that until such notice is received, the Acquiror, Sub and the Surviving Corporation, as applicable, shall be entitled to rely on the decisions, actions, consents and instructions of the prior Stockholder Representative as described in Section 2.11(a). Each Stockholder Representative may charge a reasonable fee, not to exceed $50,000 per Stockholder Representative per year, for his or its services subject to the approval of the other Stockholder Representative; provided that all fees and expenses incurred delivery by the Stockholder Representatives in performing his or its duties hereunder (including legal fees of any documents executed by the Stockholder Representatives pursuant to this Section 8.8, such Company Holder shall be bound by such documents as fully as if such Company Holder had executed and expenses related thereto) and any indemnification in favor delivered such documents. No bond shall be required of the Stockholder Representatives Representatives, and each Stockholder Representative shall be borne by receive as compensation for his services a fee of $75,000, payable in four equal installments at the stockholders and optionholders beginning of the Company (other than holders of Dissenting Shares) pro rata in accordance with first, second, third and fourth quarters, respectively, following the portion of the Merger Consideration each such stockholder or optionholder would otherwise have been entitled to receive under Section 2.9(c), by virtue of the ownership of outstanding Shares or options immediately prior to the Effective Time (each such stockholder’s and optionholder’s pro rata interest, a “Pro Rata Share”) in the manner provided in the Escrow AgreementClosing.
(c) The Stockholder Representatives shall be entitled to receive reimbursement from, and be indemnified by, the Company Holders for certain expenses, charges and liabilities as provided below. In dealing connection with this Agreement and any notice, instrument, agreement or document relating theretoAgreement, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholder Representatives hereunder or thereunderhereunder, (i) the Stockholder Representatives and his or its agents, counsel, accountants and other representatives shall not assume any, and shall not incur any, no responsibility whatsoever (in each case, to the extent permitted by applicable Law) to any stockholder or optionholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation, including, without limitation, Company Holders by reason of any error in judgment or other act or omission performed or omitted hereunder hereunder, excepting only responsibility for any act or in connection with this Agreement or any such other agreement, instrument or document, except failure to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted act which represents willful misconduct or fraudmisconduct, and (ii) the Stockholder Representatives shall be entitled to rely in good faith on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholder Representatives pursuant to such advice shall in no event subject the Stockholder Representatives to liability to any stockholder of the CompanyCompany Holders. Each Company Holder shall indemnify, the Acquirorseverally and not jointly, the Company, Sub or the Surviving Corporation. Except in cases where a court of competent jurisdiction has made such a finding, the stockholders and optionholders of the Company shall on a pro rata basis (based on each such stockholderCompany Holder’s and optionholder’s Pro Rata Proportionate Share) indemnify and hold harmless , the Stockholder Representatives from and against any and all losses, damages, liabilities, claims, actionsobligations, damages costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and disbursementsthe amount of any judgment against them, of any nature whatsoever (including, but not limited to, any and all expense whatsoever reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened or any claims whatsoever), arising out of and or in connection with his any claim, investigation, challenge, action or its activities as proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Stockholder Representatives under hereunder in their specific capacities as such in accordance with the first sentence of Section 8.8(g) below. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Stockholder Representatives hereunder for their willful misconduct. The Stockholder Representatives shall have the right to recover, at their sole discretion, from the Stockholder Representative Escrow Fund, prior to any distribution to the Company Holders, any amounts to which they are entitled pursuant to the expense reimbursement and indemnification provisions of this Section 8.8(c). In the event of any indemnification hereunder, upon written notice from the Stockholder Representatives to the Company Holders as to the existence of a deficiency toward the payment of any such indemnification amount, each Company Holder as of immediately prior to the Effective Time shall promptly deliver to the Stockholder Representatives full payment of his or her Proportionate Share of the amount of such deficiency. The Stockholder Representatives shall establish such terms and procedures for administering, investing and disbursing any amounts from the Stockholder Representative Escrow Fund as they may determine in their reasonable judgment to be necessary, advisable or desirable to give effect to the provisions of this Agreement, the Escrow Agreement or otherwise.
(d) The grant of authority provided for in this Section 2.11 (i) is coupled with an interest and is being granted, in part, as an inducement to the Acquiror and Sub to enter into this Agreement and the Escrow Agreement, and shall be irrevocable and survive the dissolution, liquidation or bankruptcy of the Company or the death, incompetency, liquidation or bankruptcy of any stockholder or optionholder of the Company, shall be binding on any successor thereto and (ii) shall survive the assignment by any stockholder or optionholder of the Company of the whole or any portion of his, her or its interest in the Escrow Fund.
(e) In connection with the performance of his or its obligations hereunder, the Stockholder Representatives shall have the right, acting together, at any time and from time to time to select and engage, at the cost and expense of the stockholders and optionholders of the Company (as contemplated by Section 2.11(b)), attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as he or it may deem necessary or desirable and incur other out-of-pocket expenses related to performing his or its services hereunder.
(f) All of the indemnities, immunities and powers granted to the Stockholder Representatives under this Agreement with respect to this Agreement and the Escrow Agreement shall survive the Closing Effective Time and/or any termination of this Agreement.
(e) Subject to Section 8.9, Parent and the Surviving Corporation shall have the right to rely upon all actions taken or omitted to be taken by the Stockholder Representatives pursuant to this Agreement, all of which actions or omissions shall be legally binding upon the Company Holders.
(f) The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Company Holder and (ii) shall survive the consummation of the Merger, and any action taken by the Stockholder Representatives pursuant to the authority granted in this Agreement shall be effective and absolutely binding on each Company Holder notwithstanding any contrary action of or direction from such Company Holder, except for actions or omissions of the Stockholder Representatives constituting willful misconduct.
(g) Each of the Company, Merger Sub and Parent acknowledges and agrees that such powers the Stockholder Representatives are a party to this Agreement solely to perform certain administrative functions in connection with the consummation of the transactions contemplated hereby. Accordingly, each of the Company, Merger Sub and Parent acknowledges and agrees that, other than in the Stockholder Representatives’ role as Company Holders, the Stockholder Representatives shall terminate upon termination have no liability to, and shall not be liable for any losses of, any of the Company, Merger Sub, the Surviving Corporation, Parent or any of their respective Affiliates in connection with any obligations of the Stockholder Representatives under this Agreement or otherwise in respect of this AgreementAgreement or the transactions contemplated hereby, except to the extent such losses shall be proven to be the direct result of fraud or willful misconduct by the Stockholder Representatives in connection with the performance of its obligations hereunder.
Appears in 1 contract
Samples: Merger Agreement (Colt Defense LLC)
Stockholder Representatives. (a) The parties hereto agree In the event that it the Merger is desirable to designate TA Associates Managementapproved, L.P. effective upon such vote, and without further act of any Stockholder, each of Xxx Xxxxxxxx and Skip Xxxxx Xxxx shall be appointed as the representatives of the Company’s stockholders agent and optionholders and their attorneys in attorney-in-fact (acting jointly the "STOCKHOLDER REPRESENTATIVE") for each a “Stockholder Representative” Stockholder, for and collectively, the “Stockholder Representatives”), with full power of substitution to act on behalf of the Company’s stockholders and optionholders (only with respect to their interests as stockholders and optionholders under this Agreement and the Escrow Agreement) to the extent and in the manner set forth in this Agreement and the Escrow Agreement but not with respect to any amendments to this Agreement or the Escrow Agreement. The Company has designated the Stockholder Representatives as the representatives of the Company’s stockholders and optionholders for purposes of this Agreement and the Escrow AgreementStockholders, and approval of this Agreement and the Merger by such holders shall constitute ratification and approval of such designation on the terms set forth herein. All decisions, actions, consents and instructions by the Stockholder Representatives with respect to this Agreement and the Escrow Agreement (but not with respect to any amendments hereto or thereto) shall be binding upon all of the stockholders and optionholders of the Company with respect to their interests as stockholders and optionholders under this Agreement and the Escrow Agreement, and no such stockholder shall have the right to object to, dissent from, protest or otherwise contest the same. The Stockholder Representatives shall act in unanimity with respect to any decision, action, consent or instruction contemplated by this Agreement and in all communications with the Acquiror and the Sub, and the Acquiror and Sub shall be entitled to rely on any such decision, action, consent or instruction as being the decision, action, consent or instruction of the Company’s stockholders and optionholders, and the Acquiror and Sub are hereby relieved from any liability to any Person for acts done by them in accordance with any such decision, act, consent or instruction. By way of amplification and not limitation, as Stockholder Representatives, the Stockholder Representatives shall be authorized and empowered, as agents of and on behalf of all stockholders and optionholders of the Company (only with respect to their interests as stockholders and optionholders) to give and receive notices and communications as provided hereincommunications, to authorize delivery to Parent of shares of Parent Common Stock from the Escrow Fund in satisfaction of claims by Parent, to object to any Acquiror Indemnification Claimssuch deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, to such claims or Losses, to waive after the Effective Time any breach or default of the Acquiror or Sub of any obligation to be performed by it under this Agreement, to receive service of process on behalf of each stockholder and optionholder of the Company in connection with any claims against such stockholder or optionholder arising under or in connection with this Agreement, any document or instrument provided for hereby (other than Employment Agreements, Non-Competition Agreements and Non-Solicitation Agreements) or any of the transactions contemplated hereby or under any Ancillary Agreementclaims, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representatives Representative for the accomplishment of the foregoing foregoing. Such agency may be changed by a meeting of the Stockholders from time to time upon not less than thirty (30) days prior written notice to Parent; PROVIDED, HOWEVER, that the Stockholder Representative may not be removed unless Stockholders with a majority in interest in the Escrow Fund agree to such removal and to the identity of the substituted agent. Any vacancy in the position of Stockholder Representative may be filled by approval of the holders of a majority in interest in the Escrow Fund. No bond shall be required of the Stockholder Representative, and the Stockholder Representative shall not receive compensation for his or (ii) specifically mandated by the terms of this Agreementher services. Notices or communications to or from both of the Stockholder Representatives Representative shall constitute notice to or from the stockholders and optionholders each of the CompanyStockholders.
(b) A The Stockholder Representative may resign at shall not be liable for any time, act done or omitted hereunder as Stockholder Representative while acting in good faith and in the event exercise of reasonable judgment. The Stockholders on whose behalf the Escrow Amount was contributed to the Escrow Fund shall severally indemnify the Stockholder Representative and hold the Stockholder Representative harmless against any loss, liability or expense incurred without negligence or bad faith on the part of the death, incapacity Stockholder Representative and arising out of or resignation in connection with the acceptance or administration of a the Stockholder Representative's duties hereunder, a new Stockholder Representative may be appointed by including the vote or written consent of stockholders holding a majority of the aggregate Fully Diluted Shares immediately prior to the Effective Time, except that, with respect to any resignation, death, or incapacity of Xxxxx Xxxx as a Stockholder Representative, the holders of a majority of the outstanding shares of Class A Common Stock as of the date hereof shall have the right to appoint such replacement Stockholder Representative. Notice of such vote or a copy of the written consent appointing such new Stockholder Representative shall be sent to the Acquiror and, after the Effective Time, to the Surviving Corporation, such appointment to be effective upon the later of the date indicated in such consent and the date such consent is received by the Acquiror and, after the Effective Time, the Surviving Corporation; provided that until such notice is received, the Acquiror, Sub and the Surviving Corporation, as applicable, shall be entitled to rely on the decisions, actions, consents and instructions of the prior Stockholder Representative as described in Section 2.11(a). Each Stockholder Representative may charge a reasonable fee, not to exceed $50,000 per Stockholder Representative per year, for his or its services subject to the approval of the other Stockholder Representative; provided that all fees and expenses incurred of any legal counsel retained by the Stockholder Representatives in performing his or its duties hereunder (including legal fees and expenses related thereto) and any indemnification in favor of the Stockholder Representatives shall be borne by the stockholders and optionholders of the Company (other than holders of Dissenting Shares) pro rata in accordance with the portion of the Merger Consideration each such stockholder or optionholder would otherwise have been entitled to receive under Section 2.9(c), by virtue of the ownership of outstanding Shares or options immediately prior to the Effective Time (each such stockholder’s and optionholder’s pro rata interest, a “Pro Rata Share”) in the manner provided in the Escrow AgreementRepresentative.
(c) In dealing with this Agreement and any noticeA decision, instrumentact, agreement consent or document relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholder Representatives hereunder or thereunder, (i) the Stockholder Representatives and his or its agents, counsel, accountants and other representatives shall not assume any, and shall not incur any, responsibility whatsoever (in each case, to the extent permitted by applicable Law) to any stockholder or optionholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation, including, without limitation, by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or any such other agreement, instrument or document, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted willful misconduct or fraud, and (ii) the Stockholder Representatives shall be entitled to rely in good faith on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission instruction of the Stockholder Representatives pursuant Representative shall constitute a decision of all Stockholders for whom a portion of the Escrow Amount otherwise issuable to them are deposited in the Escrow Fund and shall be final, binding and conclusive upon each of such advice shall in no event subject Stockholders, and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Stockholder Representatives to Representative as being the decision, act, consent or instruction of each and every such Stockholder. The Escrow Agent and Parent are hereby relieved from any liability to any stockholder person for any acts done by them in accordance with such decision, act, consent or instruction of the Company, the Acquiror, the Company, Sub or the Surviving Corporation. Except in cases where a court of competent jurisdiction has made such a finding, the stockholders and optionholders of the Company shall on a pro rata basis (based on each such stockholder’s and optionholder’s Pro Rata Share) indemnify and hold harmless the Stockholder Representatives from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with his or its activities as the Stockholder Representatives under this Agreement, the Escrow Agreement or otherwiseRepresentative.
(d) The grant of authority provided for in this Section 2.11 (i) is coupled with an interest and is being granted, in part, as an inducement to the Acquiror and Sub to enter into this Agreement and the Escrow Agreement, and shall be irrevocable and survive the dissolution, liquidation or bankruptcy of the Company or the death, incompetency, liquidation or bankruptcy of any stockholder or optionholder of the Company, shall be binding on any successor thereto and (ii) shall survive the assignment by any stockholder or optionholder of the Company of the whole or any portion of his, her or its interest in the Escrow Fund.
(e) In connection with the performance of his or its obligations hereunder, the Stockholder Representatives shall have the right, acting together, at any time and from time to time to select and engage, at the cost and expense of the stockholders and optionholders of the Company (as contemplated by Section 2.11(b)), attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as he or it may deem necessary or desirable and incur other out-of-pocket expenses related to performing his or its services hereunder.
(f) All of the immunities and powers granted to the Stockholder Representatives under this Agreement with respect to this Agreement and the Escrow Agreement shall survive the Closing and/or any termination of this Agreement, except that such powers shall terminate upon termination of this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Probusiness Services Inc)
Stockholder Representatives. (a) The parties hereto agree that it is desirable to designate TA Associates ManagementXxxxx X. Xxxxx and a designee of Seagate Technology, L.P. and Xxxxx Xxxx Inc., who shall initially be Xxxxxx X. Xxxxx, are hereby appointed as representatives (the representatives of the Company’s stockholders and optionholders and their attorneys in fact (each a “Stockholder Representative” and collectively, the “"Stockholder Representatives”), with full power of substitution to act ") for and on behalf of the Company’s stockholders and optionholders (only with respect to their interests as stockholders and optionholders under this Agreement and the Escrow Agreement) to the extent and in the manner set forth in this Agreement and the Escrow Agreement but not with respect to any amendments to this Agreement or the Escrow Agreement. The Company has designated the Stockholder Representatives as the representatives of the Company’s stockholders and optionholders for purposes of this Agreement and the Escrow Agreement, and approval of this Agreement and the Merger by such holders shall constitute ratification and approval of such designation on the terms set forth herein. All decisions, actions, consents and instructions by the Stockholder Representatives with respect to this Agreement and the Escrow Agreement (but not with respect to any amendments hereto or thereto) shall be binding upon all of the stockholders and optionholders of the Company with respect to their interests as stockholders and optionholders under this Agreement and the Escrow Agreement, and no such stockholder shall have the right to object to, dissent from, protest or otherwise contest the same. The Stockholder Representatives shall act in unanimity with respect to any decision, action, consent or instruction contemplated by this Agreement and in all communications with the Acquiror and the Sub, and the Acquiror and Sub shall be entitled to rely on any such decision, action, consent or instruction as being the decision, action, consent or instruction of the Company’s stockholders and optionholders, and the Acquiror and Sub are hereby relieved from any liability to any Person for acts done by them in accordance with any such decision, act, consent or instruction. By way of amplification and not limitation, as Stockholder Representatives, the Stockholder Representatives shall be authorized and empowered, as agents of and on behalf of all stockholders and optionholders of the Company (only with respect to their interests as stockholders and optionholders) to give and receive notices and communications as provided herein, to object to any Acquiror Indemnification Claims, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims or Losses, to waive after the Effective Time any breach or default of the Acquiror or Sub of any obligation to be performed by it under this Agreement, to receive service of process on behalf of each stockholder and optionholder of the Company in connection with any claims against such stockholder or optionholder arising under or in connection with this Agreement, any document or instrument provided for hereby (other than Employment Agreements, Non-Competition Agreements and Non-Solicitation Agreements) or any of the transactions contemplated hereby or under any Ancillary Agreement, and Principal Stockholders to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representatives for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement and the Escrow Agreement. The holders of a majority in interest of the shares of Buyer Common Stock held in the Escrow Fund may replace the Stockholder Representatives upon not less than ten (10) days' prior written notice to Buyer. No bond shall be required of the Stockholder Representatives and the Stockholder Representatives shall receive no compensation for their services. Notices or of communications to or from both of the Stockholder Representatives shall constitute notice to or from the stockholders and optionholders each of the Company.
(b) A Stockholder Representative may resign at any time, and in the event Principal Stockholders. If either of the death, incapacity Stockholder Representatives dies or resignation of is otherwise no longer able or willing to serve as a Stockholder Representative, a new Stockholder Representative may shall be appointed chosen by the vote or written consent of stockholders Principal Stockholders holding a majority of the aggregate Fully Diluted Shares immediately prior to shares of Buyer Common Stock held in the Effective Time, except that, Escrow Fund. It is understood that the Stockholder Representatives shall not have any voting rights with respect to the Buyer Common Stock.
(b) The Stockholder Representatives shall not be liable for any resignationact done or omitted in such capacity while acting in good faith and in the exercise of reasonable judgment, death, and any act done or incapacity omitted pursuant to the advice of Xxxxx Xxxx as a Stockholder Representative, the holders of a majority of the outstanding shares of Class A Common Stock as of the date hereof counsel shall have the right to appoint such replacement Stockholder Representative. Notice be conclusive evidence of such vote or a copy of the written consent appointing such new Stockholder Representative good faith. The Principal Stockholders shall be sent to the Acquiror and, after the Effective Time, to the Surviving Corporation, such appointment to be effective upon the later of the date indicated in such consent and the date such consent is received by the Acquiror and, after the Effective Time, the Surviving Corporation; provided that until such notice is received, the Acquiror, Sub and the Surviving Corporation, as applicable, shall be entitled to rely on the decisions, actions, consents and instructions of the prior Stockholder Representative as described in Section 2.11(a). Each Stockholder Representative may charge a reasonable fee, not to exceed $50,000 per Stockholder Representative per year, for his or its services subject to the approval of the other Stockholder Representative; provided that all fees and expenses incurred by severally indemnify the Stockholder Representatives and hold them harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representatives and arising out of or in connection with the acceptance or administration of their duties. The Stockholder Representatives may use funds included as part of the Escrow Fund to pay any expenses or costs incurred by them in performing his their duties and responsibilities as the Stockholder Representatives.
(c) Any decision, act, consent or its duties hereunder (including legal fees and expenses related thereto) and any indemnification in favor instruction of the Stockholder Representatives shall be borne by the stockholders and optionholders constitute a decision of the Company (other than holders of Dissenting Shares) pro rata in accordance with the portion of the Merger Consideration each such stockholder or optionholder would otherwise have been entitled to receive under Section 2.9(c), by virtue of the ownership of outstanding Shares or options immediately prior to the Effective Time (each such stockholder’s and optionholder’s pro rata interest, a “Pro Rata Share”) in the manner provided in the Escrow Agreement.
(c) In dealing with this Agreement and any notice, instrument, agreement or document relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholder Representatives hereunder or thereunder, (i) the Stockholder Representatives and his or its agents, counsel, accountants and other representatives shall not assume any, Principal Stockholders and shall not incur anybe final, responsibility whatsoever (in each casebinding and conclusive upon every Principal Stockholder, to the extent permitted by applicable Law) to any stockholder or optionholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation, including, without limitation, by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or any such other agreement, instrument or document, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted willful misconduct or fraud, and (ii) the Stockholder Representatives shall be entitled to rely in good faith on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholder Representatives pursuant to such advice shall in no event subject the Stockholder Representatives to liability to any stockholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation. Except in cases where a court of competent jurisdiction has made such a finding, the stockholders and optionholders of the Company shall on a pro rata basis (based on each such stockholder’s and optionholder’s Pro Rata Share) indemnify and hold harmless the Stockholder Representatives from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with his or its activities as the Stockholder Representatives under this Agreement, the Escrow Agreement or otherwise.
(d) The grant of authority provided for in this Section 2.11 (i) is coupled with an interest and is being granted, in part, as an inducement to the Acquiror and Sub to enter into this Agreement and the Escrow AgreementAgent and Buyer may rely upon any decision, act, consent or instruction of each and shall be irrevocable and survive the dissolution, liquidation or bankruptcy of the Company or the death, incompetency, liquidation or bankruptcy of any stockholder or optionholder of the Company, shall be binding on any successor thereto and (ii) shall survive the assignment by any stockholder or optionholder of the Company of the whole or any portion of his, her or its interest in the Escrow Fundevery Stockholder Representative.
(e) In connection with the performance of his or its obligations hereunder, the Stockholder Representatives shall have the right, acting together, at any time and from time to time to select and engage, at the cost and expense of the stockholders and optionholders of the Company (as contemplated by Section 2.11(b)), attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as he or it may deem necessary or desirable and incur other out-of-pocket expenses related to performing his or its services hereunder.
(f) All of the immunities and powers granted to the Stockholder Representatives under this Agreement with respect to this Agreement and the Escrow Agreement shall survive the Closing and/or any termination of this Agreement, except that such powers shall terminate upon termination of this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Lernout & Hauspie Speech Products Nv)
Stockholder Representatives. (a) The parties hereto agree that it is desirable to designate TA Associates Management, L.P. and Xxxxx Xxxx as the representatives of the Company’s stockholders and optionholders and their attorneys in fact (each a “Stockholder Representative” and collectively, the “Stockholder Representatives”), with full power of substitution to act on behalf of the Company’s stockholders and optionholders (only with respect to their interests as stockholders and optionholders under this Agreement and the Escrow Agreement) a. Pursuant to the extent and in the manner set forth in this Agreement and the Escrow Agreement but not with respect to any amendments to this Agreement or the Escrow Merger Agreement. The Company has designated the Stockholder Representatives as the representatives of the Company’s stockholders and optionholders for purposes of this Agreement and the Escrow Agreement, and approval of this Agreement and the Merger by such holders shall constitute ratification and approval of such designation on the terms set forth herein. All decisions, actions, consents and instructions by the Stockholder Representatives with respect to this Agreement and the Escrow Agreement (but not with respect to any amendments hereto or thereto) shall be binding upon all of the stockholders and optionholders of the Company with respect to their interests as stockholders and optionholders under this Agreement and the Escrow Agreement, and no such stockholder shall have the right to object to, dissent from, protest or otherwise contest the same. The Stockholder Representatives shall act in unanimity with respect to any decision, action, consent or instruction contemplated by this Agreement and in all communications with the Acquiror and the Sub, and the Acquiror and Sub shall be entitled to rely on any such decision, action, consent or instruction as being the decision, action, consent or instruction of the Company’s stockholders and optionholders, and the Acquiror and Sub are hereby relieved from any liability to any Person for acts done by them in accordance with any such decision, act, consent or instruction. By way of amplification and not limitation, as Stockholder Representatives, the Stockholder Representatives shall be authorized and empowered, act as agents of and on behalf of all stockholders and optionholders of the Company (only with respect to their interests as stockholders Stockholders and optionholders) are entitled to give and receive notices and communications as provided hereincommunications, to authorize delivery to the Parent Group Members of the cash or other property from the Indemnity Fund in satisfaction of claims by the Parent Group Members, to object to any Acquiror Indemnification Claimssuch deliveries in accordance with the terms of this Indemnity Agreement, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, to such claims or Losses, to waive after the Effective Time any breach or default of the Acquiror or Sub of any obligation to be performed by it under this Agreement, to receive service of process on behalf of each stockholder and optionholder of the Company in connection with any claims against such stockholder or optionholder arising under or in connection with this Agreement, any document or instrument provided for hereby (other than Employment Agreements, Non-Competition Agreements and Non-Solicitation Agreements) or any of the transactions contemplated hereby or under any Ancillary Agreementclaims, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representatives for the accomplishment of the foregoing or foregoing. The persons designated to be Stockholders Representatives may be changed in accordance with the provisions set forth in the Merger Agreement.
b. From time to time, but at least five (ii5) specifically mandated by days prior to the terms of this Agreement. Notices or communications to or from both of Distribution Date, the Stockholder Representatives shall constitute deliver notice to or from the stockholders Indemnity Agent and optionholders Parent setting forth the amount of the Company.
(b) A Stockholder Representative may resign at any time, and in the event of the death, incapacity or resignation of a Stockholder Representative, a new Stockholder Representative may be appointed by the vote or written consent of stockholders holding a majority of the aggregate Fully Diluted Shares immediately prior to the Effective Time, except that, with respect to any resignation, death, or incapacity of Xxxxx Xxxx as a Stockholder Representative, the holders of a majority of the outstanding shares of Class A Common Stock as of the date hereof shall have the right to appoint such replacement Stockholder Representative. Notice of such vote or a copy of the written consent appointing such new Stockholder Representative shall be sent to the Acquiror and, after the Effective Time, to the Surviving Corporation, such appointment to be effective upon the later of the date indicated in such consent and the date such consent is received by the Acquiror and, after the Effective Time, the Surviving Corporation; provided that until such notice is received, the Acquiror, Sub and the Surviving Corporation, as applicable, shall be entitled to rely on the decisions, actions, consents and instructions of the prior Stockholder Representative as described in Section 2.11(a). Each Stockholder Representative may charge a reasonable fee, not to exceed $50,000 per Stockholder Representative per year, for his or its services subject to the approval of the other Stockholder Representative; provided that all fees and expenses incurred by the Stockholder Representatives in performing his or its connection with their duties under the Merger Agreement and hereunder (including legal fees the " Stockholder Representatives' Expenses"), which expenses shall be reimbursed from the Indemnity Fund (x) promptly following receipt of such notice, until such reimbursements equal $250,000 in total, and expenses related thereto(y) thereafter in accordance with the provision of Section 5(b) hereof.
c. Neither Parent, any Parent Group Member nor the Indemnity Agent shall be responsible or liable for any acts or omissions of any Stockholder Representative in such Stockholder Representative's capacity as such, and each of them may rely on any indemnification in favor action or writing any Stockholder Representative as being binding on all Stockholder Representatives for all purposes.
d. A decision, act, consent or instruction of the Stockholder Representatives shall constitute a decision of all Company Stockholders for whom amounts otherwise payable to them are deposited in the Indemnity Fund and shall be borne by final, binding and conclusive upon each such Company Stockholder, and the stockholders Indemnity Agent and optionholders Parent may rely upon any decision, act, consent or instruction of the Stockholder Representatives as being the decision, act, consent or instruction of each and every such Company (other than holders of Dissenting Shares) pro rata Stockholder. The Indemnity Agent and each Parent Group Member are hereby relieved from any liability to any person for any acts done by them in accordance with the portion such decision, act, consent or instruction of the Merger Consideration each such stockholder or optionholder would otherwise have been entitled to receive under Section 2.9(c), Stockholder Representatives. For purposes of this Indemnity Agreement any action by virtue one of the ownership of outstanding Shares or options immediately prior to the Effective Time (each such stockholder’s and optionholder’s pro rata interest, a “Pro Rata Share”) in the manner provided in the Escrow Agreement.
(c) In dealing with this Agreement and any notice, instrument, agreement or document relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholder Representatives hereunder or thereunder, (i) the Stockholder Representatives and his or its agents, counsel, accountants and other representatives shall not assume any, and shall not incur any, responsibility whatsoever (in each case, to the extent permitted by applicable Law) to any stockholder or optionholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation, including, without limitation, by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or any such other agreement, instrument or document, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted willful misconduct or fraud, and (ii) the then Stockholder Representatives shall be entitled deemed to rely in good faith on be the advice action of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission binding upon all of the Stockholder Representatives pursuant to such advice shall in no event subject the Stockholder Representatives to liability to any stockholder of the Company, the Acquiror, the Company, Sub or the Surviving Corporation. Except in cases where a court of competent jurisdiction has made such a finding, the stockholders and optionholders of the Company shall on a pro rata basis (based on each such stockholder’s and optionholder’s Pro Rata Share) indemnify and hold harmless the Stockholder Representatives from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with his or its activities as the Stockholder Representatives under this Agreement, the Escrow Agreement or otherwiseRepresentatives.
(d) The grant of authority provided for in this Section 2.11 (i) is coupled with an interest and is being granted, in part, as an inducement to the Acquiror and Sub to enter into this Agreement and the Escrow Agreement, and shall be irrevocable and survive the dissolution, liquidation or bankruptcy of the Company or the death, incompetency, liquidation or bankruptcy of any stockholder or optionholder of the Company, shall be binding on any successor thereto and (ii) shall survive the assignment by any stockholder or optionholder of the Company of the whole or any portion of his, her or its interest in the Escrow Fund.
(e) In connection with the performance of his or its obligations hereunder, the Stockholder Representatives shall have the right, acting together, at any time and from time to time to select and engage, at the cost and expense of the stockholders and optionholders of the Company (as contemplated by Section 2.11(b)), attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as he or it may deem necessary or desirable and incur other out-of-pocket expenses related to performing his or its services hereunder.
(f) All of the immunities and powers granted to the Stockholder Representatives under this Agreement with respect to this Agreement and the Escrow Agreement shall survive the Closing and/or any termination of this Agreement, except that such powers shall terminate upon termination of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Tellabs Inc)
