Stockholders’ Agent. (a) By the adoption of the Merger, and by receiving the benefits hereof, including any consideration payable hereunder, each Company Stockholder shall be deemed to have approved Shareholder Representative Services LLC as the Stockholders’ Agent as of Closing for all purposes in connection with this Agreement and any related agreements. The Stockholders’ Agent shall be the agent, representative and attorney-in-fact for and on behalf of the Company Stockholders to: (i) execute, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, (ii) following Closing, give and receive notices, instructions and communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company Stockholder, to or from Acquirer relating to this Agreement or any of the Transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder individually), (iii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (iv) review, negotiate and agree to and authorize Acquirer to reclaim an amount of cash from the Escrow Account pursuant to the terms of Section 1.6 or Article VIII hereof (including by not objecting to such claims), (iv) object to such claims pursuant to Section 1.6 or Article VIII, (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company Stockholders, (vii) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders (other than with respect to the issuance of the Merger Consideration less the Escrow Amount) in accordance with the terms hereof and in the manner provided herein, and (ix) take all actions necessary or appropriate in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Acquirer, Merger Sub and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the appointment of Shareholder Representative Services LLC as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact of each Company Stockholder and as having the duties, power and authority provided for in this Section 9.1. The Company Stockholders shall be bound by all actions taken and documents executed by the Stockholders’ Agent under this Agreement, and Acquirer and Merger Sub shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. The Person serving as the Stockholders’ Agent may be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then a successor may be appointed, by the holders of a majority in interest of the aggregate amount of cash then held in the Escrow Account (or, in the event that there is no cash then held in the Escrow Account by the Company Stockholders collectively having a Pro Rata Share greater than 50%) upon not less than 30 days’ prior written notice to Acquirer. No bond shall be required of the Stockholders’ Agent. (b) The Stockholders’ Agent will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Stockholders’ Agent shall not be liable for any action or omission pursuant to the advice of counsel. The Company Stockholders shall indemnify the Stockholders’ Agent against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse the Company Stockholders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Stockholders’ Agent from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; provided, that while the Stockholders’ Agent may be paid from the aforementioned sources of funds, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Stockholders’ Agent be required to advance its own funds on behalf of the Company Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Agent hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Agent or the termination of this Agreement. (c) Upon the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing. (d) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders and shall be final, binding and conclusive upon each such Company Stockholder; and each Acquirer Indemnified Party shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company Stockholder. Acquirer, Merger Sub and the Surviving Corporation are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Castle Biosciences Inc)
Stockholders’ Agent. (a) By Upon the adoption of the MergerDissolution, and by receiving the benefits hereof, including any consideration payable hereunder, each Company Stockholder Xxxxx Brake shall be deemed to have approved Shareholder Representative Services LLC constituted and appointed as the Stockholders’ Agent as Agent. For purposes of Closing for all purposes in connection with this Agreement and any related agreements. The Agreement, the term “Stockholders’ Agent shall be Agent” means the agent, representative agent and attorney-in-fact for and on behalf of the Company Final Stockholders to act pursuant to the terms and provisions of this Agreement, including with respect to: (i) execute, as the Stockholders’ Agent, this Agreement giving and any agreement or instrument entered into or delivered in connection with the Transactions, (ii) following Closing, give and receive notices, instructions receiving notices and communications permitted to or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and from Buyer (on behalf of itself of any Company Stockholder, to or from Acquirer other Indemnified Person) relating to this Agreement the agreements or any of the Transactions transactions and any other matters contemplated by this Agreement hereby or by such other agreement, document or instrument thereby (except to the extent that this Agreement such agreements expressly contemplates contemplate that any such notice or communication shall be given or received by each Company Stockholder such stockholders individually), ; (iiiii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation authorizing withdrawals by Buyer of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (iv) review, negotiate and agree to and authorize Acquirer to reclaim an amount of cash Shares from the Escrow Account pursuant to the terms Fund in satisfaction of Section 1.6 claims asserted by Buyer (on behalf of itself or Article VIII hereof (any other Indemnified Person), including by not objecting to such claims), ; (iii) objecting to claims pursuant to the terms of such agreements; (iv) object consenting or agreeing to such claims pursuant to Section 1.6 negotiate or Article VIII, (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, into settlements and compromises of, and demand demanding arbitration and comply complying with Orders orders of courts and awards of arbitrators with respect to, such claims; (v) asserting, resolve negotiating, entering into settlements and compromises of, and demanding arbitration and complying with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Person against any such claims, take stockholder or by any actions in connection with the resolution of such stockholder against any Indemnified Person or any dispute between any Indemnified Person and any such stockholder, in each case relating hereto to such agreements or to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing transactions and all of the other terms, conditions matters contemplated hereby or thereby; and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company Stockholders, (vii) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders (other than with respect to the issuance of the Merger Consideration less the Escrow Amount) in accordance with the terms hereof and in the manner provided herein, and (ix) take taking all actions necessary or appropriate in the judgment of the Stockholders’ Agent for the accomplishment of the foregoingforegoing or with respect to Section 2.5(c), in each case without having to seek or obtain the consent of any Person under any circumstance. Acquirer, Merger Sub and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the appointment of Shareholder Representative Services LLC as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact of each Company Stockholder and as having the duties, power and authority provided for in this Section 9.1. The Company Stockholders shall be bound by all actions taken and documents executed by the Stockholders’ Agent under this Agreement, and Acquirer and Merger Sub shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. The Person serving as the Stockholders’ Agent may be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then a successor may be appointed, time by the holders of a majority in interest of the aggregate amount shares of cash then held in Seller capital stock as of immediately prior to the Escrow Account (or, in the event that there is no cash then held in the Escrow Account by the Company Stockholders collectively having a Pro Rata Share greater than 50%) Dissolution upon not less than 30 ten days’ prior written notice to Acquirer. No bond shall be required of the Stockholders’ AgentBuyer.
(b) The Stockholders’ Agent will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Stockholders’ Agent shall not be liable for any action or omission pursuant to the advice of counsel. The Company Stockholders shall indemnify the Stockholders’ Agent against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse the Company Stockholders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Stockholders’ Agent from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; provided, that while the Stockholders’ Agent may be paid from the aforementioned sources of funds, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Stockholders’ Agent be required to advance its own funds on behalf of the Company Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Agent hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Agent or the termination of this Agreement.
(c) Upon the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing.
(d) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders and shall be final, binding and conclusive upon each such Company Stockholder; and each Acquirer Indemnified Party shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company Stockholder. Acquirer, Merger Sub and the Surviving Corporation are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent.
Appears in 1 contract
Stockholders’ Agent. (a) By the adoption The Target stockholders, by virtue of the Mergerapproval of this Agreement, and by receiving the benefits hereof, including any consideration payable hereunder, each Company Stockholder shall be deemed to have approved Shareholder Representative Services LLC as hereby irrevocably appoint the Stockholders’ Agent as his, her or its true and lawful agent and attorney-in-fact, with full power of Closing for substitution (such power of attorney being deemed to be an irrevocable power coupled with an interest) to act on his, her or its behalf with respect to any and all purposes in connection with matters, claims, controversies, or disputes arising out of the terms of this Agreement and any related agreementsafter the Closing Date. The Stockholders’ Agent shall be have the agent, representative power to take any and attorney-in-fact for and on behalf of the Company Stockholders to: (i) execute, as all actions which the Stockholders’ AgentAgent believes are necessary or appropriate or in the best interests of the Target stockholders, as fully as if each such stockholder was acting on its, his or her own behalf, with respect to indemnification claims made under Section 9 of this Agreement including (a) following the Closing, to give and receive notices and communications made pursuant to this Agreement and any agreement or instrument entered into or delivered the other documents executed in connection with the Transactionsherewith relating to Section 9, (iib) following Closingto administer, give negotiate and receive notices, instructions and communications permitted or required settle any claims with respect to indemnification claims made under Section 9 of this Agreement, or any other agreement, document or instrument entered into or executed disputes arising in connection herewith, for and on behalf of any Company Stockholder, to or from Acquirer relating to this Agreement or any of the Transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder individually)therewith, (iiic) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (iv) review, negotiate and agree to and authorize Acquirer to reclaim an amount of cash from the Escrow Account pursuant to the terms of Section 1.6 or Article VIII hereof (including by not objecting to such claims), (ivd) object to such claims pursuant to Section 1.6 or Article VIII, (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, into settlements and compromises of, and demand arbitration and comply with Orders orders of courts and awards of arbitrators with respect to, to such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or (e) to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company Stockholders, (vii) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders (other than with respect to the issuance of the Merger Consideration less the Escrow Amount) in accordance with the terms hereof and in the manner provided herein, and (ix) take all actions necessary or appropriate in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing, foregoing or as may be necessary or appropriate in each case without having to seek or obtain the consent judgment of any Person under any circumstance. Acquirer, Merger Sub and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the appointment of Shareholder Representative Services LLC as the Stockholders’ Agent to implement the transactions contemplated hereby, and treat such (f) to employ accountants, attorneys and other professionals, and incur and pay all costs and expenses related to the performance of the Stockholders’ Agent’s duties and obligations. Notices or communications to or from the Stockholders’ Agent as shall constitute notice to or from each of the duly appointed attorney-in-fact stockholders for purposes of each Company Stockholder this Agreement and as having the duties, power and authority provided for other documents executed in this Section 9.1connection herewith. The Company Stockholders death or incapacity of any Target stockholder shall not terminate the authority and agency of the Stockholders’ Agent. If the Stockholders’ Agent shall be bound unable or unwilling to serve in such capacity, his successor shall be named by those persons holding a majority of the shares of Target Capital Stock, on an as-if converted basis, held by all actions taken stockholders immediately prior to the Effective Time under this Agreement, and documents executed by such successor shall serve and exercise the powers of Stockholders’ Agent under this Agreement, and Acquirer and Merger Sub shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. The Person serving as the Stockholders’ Agent may be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then a successor may be appointed, by the holders of a majority in interest of the aggregate amount of cash then held in the Escrow Account (or, in the event that there is no cash then held in the Escrow Account by the Company Stockholders collectively having a Pro Rata Share greater than 50%) upon not less than 30 days’ prior written notice to Acquirer. No bond shall be required of the Stockholders’ Agent.
(b) The Stockholders’ Agent will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Stockholders’ Agent shall not be liable for any action act done or omission omitted hereunder as Stockholder’ Agent (i) with the written consent of Target stockholders who, immediately prior to the Effective Time, held a majority of the outstanding Target Capital Stock (calculated on an as-converted basis) or (ii) while acting in good faith and in the exercise of reasonable judgment and any act done or omitted pursuant to the advice of counselcounsel shall be conclusive evidence of such good faith. The Company Stockholders Target stockholders shall severally indemnify and hold the Stockholders’ Agent harmless against any reasonableloss, documented, liability or expense incurred without gross negligence or bad faith on the part of the Stockholders’ Agent and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered the acceptance or incurred; provided, that in the event that any such Representative Loss is finally adjudicated administration of his duties hereunder.
(c) Subject to have been caused by the bad faith, gross negligence or willful misconduct of the Stockholders’ Agentapplicable law, the Stockholders’ Agent will reimburse shall, upon reasonable prior notice and at the Company Stockholders expense of the amount Target stockholders, have reasonable access during normal business hours and upon reasonable notice to information about Target and the Surviving Corporation and the reasonable assistance of such indemnified Representative Loss to Target’s and the extent attributable to such bad faithSurviving Corporation’s officers and employees for purposes of performing his duties and exercising his rights hereunder, gross negligence or willful misconduct. Representative Losses may be recovered by provided that the Stockholders’ Agent shall treat confidentially and not disclose any nonpublic information from or about Target or the Surviving Corporation to anyone (iexcept on a need to know basis to individuals who agree to treat such information confidentially).
(d) the funds in the Expense Fund and (ii) any other funds Acquiror acknowledges that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; provided, that while the Stockholders’ Agent may be paid from the aforementioned sources have a conflict of fundsinterest with respect to his duties as Stockholders’ Agent, this does not relieve the Company Stockholders from their obligation to promptly pay and in such Representative Losses as they are suffered or incurred. In no event will regard the Stockholders’ Agent be required to advance its own funds on behalf has informed Acquiror that he will act in the best interests of the Company Stockholders or otherwise. Notwithstanding anything in this Agreement to Target stockholders.
(e) Any portion of the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting Escrow Amount released by the recourse against non-parties otherwise applicable to, Escrow Agent for the Company Stockholders set forth elsewhere in this Agreement are not intended to benefit of the Target stockholders shall first be applicable to used for the indemnities provided to purpose of reimbursing the Stockholders’ Agent hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of for losses and expenses incurred in connection with its acting as the Stockholders’ Agent or the termination of pursuant to this Agreement.
(c) Upon . In furtherance of the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) foregoing and to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to enable the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds to pay all costs and will not voluntarily make these funds available expenses payable pursuant to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilitiesthis Agreement, the Stockholders’ Agent will deliver any remaining balance of shall be authorized to direct the Expense Fund Escrow Agent to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing.
(d) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, pay the Stockholders’ Agent that is within (for its own account) for such amounts from any Escrow Amount released by the scope Escrow Agent for the benefit of the Stockholders’ Agent’s authority under Section 9.1(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders and shall be final, binding and conclusive upon each such Company Stockholder; and each Acquirer Indemnified Party shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company Stockholder. Acquirer, Merger Sub and the Surviving Corporation are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ AgentTarget stockholders.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Packeteer Inc)
Stockholders’ Agent. (a) By At the adoption of the MergerClosing, and by receiving the benefits hereof, including any consideration payable hereunder, each Company Stockholder shall be deemed to have approved Shareholder Representative Services LLC shall be constituted and appointed as the Stockholders’ Agent as of Closing for all purposes in connection with this Agreement and any related agreementsAgent. The Stockholders’ Agent shall be the agent, representative and attorney-in-fact agent for and on behalf of the Company Stockholders Converting Holders to: (i) execute, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, (ii) following Closing, give and receive notices, instructions and communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company StockholderConverting Holder, to or from Acquirer (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the Transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder Converting Holder individually), (iii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (iv) review, negotiate and agree to and authorize Acquirer to reclaim an amount of cash from and/or cancel a number of shares of Acquirer Common Stock held in the Escrow Account pursuant to the terms Fund in satisfaction of Section 1.6 claims asserted by Acquirer (on behalf of itself or Article VIII hereof (any other Indemnified Person, including by not objecting to such claims)) pursuant to this Article VIII, (iv) object to such claims pursuant to Section 1.6 or Article VIII8.6, (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder Converting Holder or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company StockholdersConverting Holders, (vii) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders Converting Holders (other than with respect to the payment and issuance of the Merger Consideration less the Escrow AmountConsideration, as applicable) in accordance with the terms hereof and in the manner provided hereinherein,(viii) instruct the Escrow Agent to sell shares of Acquirer Common Stock in the Escrow Fund, (ix) review and approve any updates to the Spreadsheet or the Updated Spreadsheet in accordance with Section 5.8(b) and (ixx) take all actions necessary or appropriate in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Acquirer, the Merger Sub Subs and their respective Affiliates (including after the Effective Time, the First Step Surviving CorporationCorporation and after the Second Effective Time, the Final Surviving Entity) shall be entitled to rely on the appointment of Shareholder Representative Services LLC as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact of each Company Stockholder Converting Holder and as has having the duties, power and authority provided for in this Section 9.18.7. The Company Stockholders Converting Holders shall be bound by all actions taken and documents executed by the Stockholders’ Agent under in connection with this AgreementArticle VIII, and Acquirer and Merger Sub other Indemnified Persons shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. The Person serving as the Stockholders’ Agent may be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then a successor may be appointed, by the holders of a majority in interest of the aggregate amount of cash and the aggregate number of shares of Acquirer Common Stock then held in the Escrow Account (or, in the event that there is no cash then held in the Escrow Account by the Company Stockholders collectively having a Pro Rata Share greater than 50%) Fund upon not less than 30 days’ prior written notice to Acquirer. No bond shall be required of the Stockholders’ Agent. The Person serving as the Stockholders’ Agent may resign upon not less than 20 days’ prior written notice to Acquirer and the Converting Holders.
(b) The Stockholders’ Agent will incur no liability shall not be liable to any Converting Holder for any act done or omitted hereunder as the Stockholders’ Agent while acting in connection with its services good faith (and any act done or omitted pursuant to this Agreement the advice of counsel shall be conclusive evidence of such good faith) and any related agreements except to the extent resulting from its without gross negligence or willful misconduct. The Stockholders’ Agent shall not be liable for any action or omission pursuant to the advice of counsel. The Company Stockholders shall indemnify serve as the Stockholders’ Agent against any reasonable, documented, without compensation other than pursuant to the terms of that certain Engagement Agreement to be entered into by and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of among the Stockholders’ Agent, the Company and certain of the Converting Holders (the “SRS Engagement Agreement”); provided that the Converting Holders shall severally but not jointly indemnify the Stockholders’ Agent will reimburse and hold it harmless against any loss, Liability, damage, claim, penalty, fine, forfeiture, action, fee, cost or expense incurred without gross negligence, willful misconduct or bad faith on the Company Stockholders part of the amount Stockholders’ Agent and arising out of, resulting from or in connection with the acceptance or administration of such indemnified Representative Loss its duties hereunder, including all reasonable out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Stockholders’ Agent. If not paid directly to the extent attributable to Stockholders’ Agent by the Converting Holders, such bad faithlosses, gross negligence Liabilities or willful misconduct. Representative Losses expenses may be recovered by the Stockholders’ Agent from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; provided, that while the Stockholders’ Agent may be paid from the aforementioned sources of fundsExpense Fund and, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will after the Stockholders’ Agent be required to advance its own funds on behalf Expense Fund is fully depleted, from the portion of the Company Stockholders or otherwise. Notwithstanding anything in this Agreement Escrow Fund otherwise distributable to the contrary, any restrictions Converting Holders (and not distributed or limitations distributable to an Indemnified Person or subject to a pending indemnification claim of an Indemnified Person) on liability or indemnification obligations of, or provisions limiting after the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable Escrow Release Date pursuant to the indemnities provided to terms hereof, at the Stockholders’ Agent hereunder. The foregoing indemnities will survive the Closingtime of distribution, the resignation or removal of the Stockholders’ Agent or the termination of this Agreement.
(c) Upon the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, which and such recovery will be used for any expenses incurred by made from the Stockholders’ Agent. The Company Stockholders will not receive any interest Converting Holders according to their respective Pro Rata Shares of such losses, Liabilities or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcyexpenses. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any cash then remaining balance of in the Stockholders’ Agent Expense Fund to the Exchange Escrow Agent (or, if all of the Escrow Fund has already been released, to the Paying Agent) for further distribution to the Company Converting Holders. In no event will the Stockholders’ Agent be required to advance its own funds on behalf of the Converting Holders or otherwise. For tax purposes, The Converting Holders acknowledge and agree that the Expense Fund foregoing indemnities will be treated as having been received and voluntarily set aside by survive the Company Stockholders at resignation or removal of the time Stockholders’ Agent or the termination of Closingthis Agreement.
(dc) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a8.7(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders Converting Holders and shall be final, binding and conclusive upon each such Company StockholderConverting Holder; and each Acquirer Indemnified Party Person shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company StockholderConverting Holder. Acquirer, the Merger Sub Subs, the Final Surviving Entity and the Surviving Corporation Indemnified Persons are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent.
(d) From time to time following the Closing, the Stockholders’ Agent may instruct the Escrow Agent by written notice (with copy to Acquirer) to sell shares of Acquirer Common Stock then in the Escrow Fund, and the proceeds of such sale shall be deposited in the Escrow Fund to constitute partial security for the benefit of Acquirer (on behalf of itself or any other Indemnified Person) with respect to any Indemnifiable Damages pursuant to the indemnification obligations of the Converting Holders under this Article VIII; provided that the Stockholders’ Agent shall not be permitted to so instruct the Escrow Agent at any time that the price of Acquirer Common Stock as reported on Nasdaq is below the Acquirer Stock Price. Upon consummation of such sale, the Stockholders’ Agent shall deliver to Acquirer a written confirmation of the number of shares of Acquirer Common Stock so sold and the amount of cash so deposited in the Escrow Fund, and Acquirer shall update the Updated Spreadsheet for (i) the aggregate amount of cash and the aggregate number of shares of Acquirer Common Stock then in the Escrow Fund and (ii) the allocation of such cash and stock with respect to each Converting Holder.
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Stockholders’ Agent. (a) By At the adoption of the MergerClosing, and by receiving the benefits hereofFortis Advisors LLC, including any consideration payable hereundera Delaware limited liability company, each Company Stockholder shall be deemed to have approved Shareholder Representative Services LLC constituted and appointed as the Stockholders’ Agent as of Closing for all purposes in connection with this Agreement and any related agreementsAgent. The Stockholders’ Agent shall be the agent, representative agent and attorney-in-fact true and lawful attorneyinfact for and on behalf of the Company Stockholders Converting Holders to: (i) execute, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, (ii) following Closing, give and receive notices, instructions and communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company StockholderConverting Holder, to or from Acquirer (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the Transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder Converting Holder individually), (iii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (iv) review, negotiate and agree to and authorize Acquirer to reclaim an amount of cash from or shares of Parent Common Stock in the Escrow Account pursuant to the terms Fund in satisfaction of Section 1.6 claims asserted by Acquirer (on behalf of itself or Article VIII hereof (any other Indemnified Person, including by not objecting to such claims)) pursuant to this Article 8, (iv) object to such claims pursuant to Section 1.6 or Article VIII8.6, (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder Converting Holder or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company Stockholders, Converting Holders; (vii) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders Converting Holders (other than with respect to the payment and issuance of the Merger Consideration less the Cash Escrow Amount and the Stock Escrow Amount) in accordance with the terms hereof and in the manner provided herein, herein and (ixviii) take all actions necessary or appropriate in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent, Acquirer, Merger Sub and their respective Affiliates (including after the First Effective Time, the First Step Surviving Corporation, and after the Second Effective Time, the Final Surviving Corporation) shall be entitled to rely on the appointment of Shareholder Representative Services LLC Fortis Advisors LLC, a Delaware limited liability company, as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact attorneyinfact of each Company Stockholder Converting Holder and as has having the duties, power and authority provided for in this Section 9.18.7. The Company Stockholders Converting Holders shall be bound by all actions taken and documents executed by the Stockholders’ Agent under in connection with this AgreementArticle 8, and Acquirer and Merger Sub other Indemnified Persons shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. The Person serving as the Stockholders’ Agent may be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then a successor may be appointed, time by the holders of a majority in interest of the aggregate amount value of the cash and shares of Parent Common Stock then held in the Escrow Account Fund (or, in with each share of Parent Common Stock being valued for such purposes at the event that there is no cash then held in the Escrow Account by the Company Stockholders collectively having a Pro Rata Share greater than 50%Specified Price) upon not less than 30 days’ prior written notice to Acquirer. No bond shall be required of the Stockholders’ Agent. Certain Converting Holders may enter into a letter agreement with the Stockholders’ Agent to provide direction to the Stockholders’ Agent in connection with the performance of its services under this Agreement (such Converting Holders, including their individual representatives, hereinafter referred to as the “Advisory Group”).
(b) The Stockholders’ Agent will incur no liability and his agents and representatives or any member of the Advisory Group (collectively, the “Stockholders’ Agent Group”) shall not be liable to any Converting Holder for any act done or omitted hereunder while acting in connection with its services good faith (and any act done or omitted pursuant to this Agreement the advice of counsel shall be conclusive evidence of such good faith) and any related agreements except to the extent resulting from its without gross negligence or willful misconduct. The Stockholders’ Agent Converting Holders shall severally but not be liable for any action or omission pursuant to the advice of counsel. The Company Stockholders shall jointly indemnify the Stockholders’ Agent and its members, managers, directors, officers, agents and employees or any member of the Advisory Group and hold them harmless from and against any reasonable, documented, and out-of-pocket all losses, liabilities claims, damages, liabilities, fees, costs, expenses (including all reasonable out of pocket costs and expenses and legal fees and disbursements and costs and including costs incurred in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, “Representative LossesStockholders’ Agent Expenses”) incurred without gross negligence, willful misconduct or bad faith on the part of the Stockholders’ Agent Group and arising out of of, resulting from or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered the acceptance or incurred; provided, that in the event that any such Representative Loss is finally adjudicated administration of its duties hereunder. If not paid directly to have been caused by the bad faith, gross negligence or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse by the Company Stockholders the amount of Converting Holders, such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses Stockholders’ Agent Expenses may be recovered by the Stockholders’ Agent first, from (i) the funds in the Expense Fund, second from the portion of the Escrow Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; providedConverting Holders (and not distributed or distributable to an Indemnified Person or subject to a pending indemnification claim of an Indemnified Person) after the Escrow Release Date pursuant to the terms hereof, at the time of distribution, and third, directly from the Converting Holders according to their respective Pro Rata Shares. The Converting Holders acknowledge that while no provision of this Agreement, the Escrow Agreement nor any of the transactions contemplated hereby shall require the Stockholders’ Agent may be paid from the aforementioned sources of funds, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered expend or incurred. In no event will the Stockholders’ Agent be required to advance risk its own funds on behalf or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement, the Escrow Agreement or any of the Company Stockholders or otherwisetransactions contemplated hereby. Notwithstanding anything in this Agreement All of the immunities and rights to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided granted to the Stockholders’ Agent hereunder. The foregoing indemnities will Group under this Agreement shall survive the Closing, the resignation or removal of Stockholders’ Agent or any member of the Advisory Group, the Closing and/or any termination of this Agreement and the Escrow Agreement. The powers, immunities and rights to indemnification granted to the Stockholders’ Agent Group hereunder: (i) are is coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the termination respective Converting Holders and shall be binding on any successor thereto and (ii) shall survive the delivery of this Agreementan assignment by any Converting Holders of the whole or any fraction of his, her or its interest in the Escrow Fund.
(c) Upon the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing.
(d) After the Closing, any Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a8.7(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders Converting Holders and shall be final, binding and conclusive upon each such Company Stockholder; Converting Holder; and each Acquirer Indemnified Party Person shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company StockholderConverting Holder. Parent, Acquirer, Merger Sub Sub, the First Step Surviving Corporation, the Final Surviving Corporation and the Surviving Corporation Indemnified Persons are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent.
(d) Subject to the terms and conditions of this Agreement, upon the Closing, the Company shall wire to the Stockholders’ Agent the Expense Fund pursuant to wire instructions provided to the Company, which shall be held by the Stockholders’ Agent as agent and for the benefit of the Converting Holders in a segregated client account and shall be used for the purposes of paying directly, or reimbursing the Stockholders’ Agent for, any expenses incurred pursuant to this Agreement, the Escrow Agreement or any Stockholders’ Agent engagement agreement. The Stockholders’ Agent will hold these funds separate from its corporate funds. The Converting Holders shall not receive interest or other earnings on amounts in the Expense Fund and the Converting Holders irrevocably transfer and assign to the Stockholders’ Agent any ownership right that the Converting Holders may have in any interest that may accrue on amounts in the Expense Fund. The Converting Holders acknowledge that the Stockholders’ Agent is not providing any investment supervision, recommendations or advice. The Stockholders’ Agent shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. As soon as practicable following the later of (i) the final release of the Escrow Fund or (ii) the final resolution of any claims, the Stockholders’ Agent shall distribute the remaining portion of the Expense Fund (if any) to the Escrow Agent for further distribution to the Converting Holders in accordance with his, her or its Pro Rata Share. The Stockholders’ Agent is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund, and has no tax reporting or income distribution obligations hereunder.
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Stockholders’ Agent. (a) By At the adoption of the MergerClosing, and by receiving the benefits hereof, including any consideration payable hereunder, each Company Stockholder Xxxxxxxx Xxxxxxxxx shall be deemed to have approved Shareholder Representative Services LLC constituted and appointed as the Stockholders’ Agent as Agent. For purposes of Closing for all purposes in connection with this Agreement and any related agreements. The Agreement, the term “Stockholders’ Agent Agent” shall be mean the agent, representative and attorney-in-fact agent for and on behalf of the Company Stockholders Effective Time Holders to: (i) execute, as the Stockholders’ Agent, this Agreement and any document, agreement or instrument entered into or delivered in connection with the Transactions, transactions contemplated hereby; (ii) following Closing, give and receive notices, instructions instructions, and communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company StockholderEffective Time Holder, to or from Acquirer (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the Transactions transactions and any other matters contemplated by this Agreement hereby or by such other agreement, document or instrument thereby (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder individuallyindividually and not by the Stockholders’ Agent), ; (iii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (iv) review, negotiate and agree to and authorize Acquirer to reclaim an amount of cash receive Escrow Cash from the Escrow Account pursuant to the terms Fund in satisfaction of Section 1.6 claims asserted by Acquirer (on behalf of itself or Article VIII hereof (any other Indemnified Person, including by not objecting to such claims), ) pursuant to this Article 8; (iv) object to such claims pursuant to Section 1.6 or Article VIII, 8.5; (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions transactions contemplated hereby by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder Effective Time Holder or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, ; (vi) engage and consult with legal counsel, independent public accountants and other advisors and experts selected by it, solely at the cost and expense of the Company Stockholders, ; (vii) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders Effective Time Holders (other than with respect to the issuance of the Total Initial Merger Consideration less the Escrow AmountFund) in accordance with the terms hereof and in the manner provided herein; (viii) interpret all terms and provisions of this Agreement and any instrument, document and agreement delivered in connection herewith; and (ix) take all actions necessary or appropriate in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Acquirer, Merger Sub and their respective Affiliates (including without limitation, after the Effective TimeClosing Date, the Surviving Corporation) shall be entitled to rely on the appointment of Shareholder Representative Services LLC Xxxxxxxx Xxxxxxxxx as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact of each Company Stockholder Effective Time Holder and as has having the duties, power and authority provided for in this Section 9.18.7. The Company Stockholders Effective Time Holders shall be bound by all actions taken and documents executed by the Stockholders’ Agent under in connection with this AgreementArticle 8, and Acquirer and Merger Sub other Indemnified Persons shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. The Person serving as the Stockholders’ Agent may be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then a successor may be appointed, by the holders of a majority in interest of the aggregate amount of cash then held in the Escrow Account (or, in the event that there is no cash then held in the Escrow Account by the Company Stockholders collectively having a Pro Rata Share greater than 50%) upon not less than 30 days’ prior written notice to Acquirer. No bond shall be required of the Stockholders’ Agent.
(b) The Stockholders’ Agent will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Stockholders’ Agent shall not be liable for any action or omission pursuant to the advice of counsel. The Company Stockholders shall indemnify the Stockholders’ Agent against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse the Company Stockholders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Stockholders’ Agent from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; provided, that while the Stockholders’ Agent may be paid from the aforementioned sources of funds, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Stockholders’ Agent be required to advance its own funds on behalf of the Company Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Agent hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Agent or the termination of this Agreement.
(c) Upon the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing.
(d) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders and shall be final, binding and conclusive upon each such Company Stockholder; and each Acquirer Indemnified Party shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company Stockholder. Acquirer, Merger Sub and the Surviving Corporation are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent.
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Stockholders’ Agent. (a) By the adoption Each of the MergerStockholders (other than Scripps) hereby authorizes, directs and by receiving appoints Xxxxxxx Xxxxxx Xx. (the benefits hereof, including any consideration payable hereunder, each Company Stockholder shall be deemed to have approved Shareholder Representative Services LLC as the “Stockholders’ Agent Agent”) to act as of Closing for all purposes in connection with this Agreement sole and any related agreements. The Stockholders’ Agent shall be the exclusive agent, representative and attorney-in-fact for and on behalf representative of the Company Stockholders to: (i) executesuch Stockholder with respect to all matters arising under, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, (ii) following Closing, give and receive notices, instructions and communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company Stockholder, to or from Acquirer relating to this Agreement or any of the Transactions other Transaction Documents, including, without limitation, (i) asserting, defending, prosecuting, litigating, arbitrating, negotiating, settling, releasing and resolving any other matters contemplated by matters, claims (including indemnification claims and claims for Losses), differences, disputes and controversies of any nature whatsoever under any of the Transaction Documents, (ii) entering into amendments of this Agreement or by such other agreement, document or instrument (except to and waivers of any of the extent that provisions of this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder individually)Agreement, (iii) pursuant to Section 1.6determining, review, negotiate, object to, accept or agree to Acquirer’s calculation giving and receiving notices and processes under any of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22Transaction Documents, (iv) review, negotiate performing the rights and agree to and authorize Acquirer to reclaim an amount of cash from the Escrow Account pursuant duties expressly assigned to the terms of Section 1.6 or Article VIII hereof (including by not objecting to such claims), (iv) object to such claims pursuant to Section 1.6 or Article VIIIStockholders’ Agent hereunder and under the other Transaction Documents, (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements engaging and compromises of, employing agents and demand arbitration Representatives on behalf of such Stockholders and comply with Orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions the Stockholders’ Agent in connection with all such matters under any of the resolution Transaction Documents, (vi) entering into agreements (including releases) on behalf of such Stockholders with respect to any of the foregoing, and (vii) taking all actions and incurring all expenses as the Stockholders’ Agent shall reasonably deem necessary or prudent in connection with any of the foregoing; all on such terms and in such manner as he deems appropriate in his sole and absolute discretion. Any such actions taken, exercises of rights, power or authority, and any decision, determination, waiver, amendment or agreement made by the Stockholders’ Agent consistent herewith, shall be absolutely and irrevocably binding on such Stockholder as if such Stockholder personally had taken such action, exercised such rights, power or authority or made such decision, determination, waiver, amendment or agreement in such Stockholder’s individual capacity, and no such Stockholder shall have the right to object, dissent, protest or otherwise contest the same. Any action required to be taken by such Stockholder hereunder or under any of the other Transaction Documents or any such action which a Stockholder, at his or her election, has the right to take hereunder or under any of the other Transaction Documents, shall be taken only and exclusively by the Stockholders’ Agent and no Stockholder acting on his own shall be entitled to take any such action. The Stockholders’ Agent will, in a reasonably prompt manner, provide written notice to each such Stockholder of any dispute relating hereto or action taken by the Stockholders’ Agent pursuant to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder or necessary in the judgment authority delegated under this Section.
(b) The appointment of the Stockholders’ Agent for the accomplishment as such Stockholder’s attorney-in-fact revokes any power of the foregoing and attorney heretofore granted that authorized any other Person or Persons to represent such Stockholder with regard to any or all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company Stockholders, (vii) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders (other than with respect to the issuance of the Merger Consideration less the Escrow Amount) in accordance with the terms hereof and in the manner provided herein, and (ix) take all actions necessary or appropriate in the judgment Transaction Documents. The appointment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Acquirer, Merger Sub and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the appointment of Shareholder Representative Services LLC as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact pursuant hereto is coupled with an interest and is irrevocable.
(c) The Stockholders’ Agent hereby accepts the foregoing appointment and agrees to serve in such capacity, subject to the provisions hereof, for the period of each Company Stockholder time from and as having after the duties, power and authority provided date hereof without compensation except for in this Section 9.1. The Company the reimbursement from such Stockholders shall be bound by all actions taken and documents executed of reasonable out-of-pocket expenses incurred by the Stockholders’ Agent in his capacity as such. Each such Stockholder hereby waives all actual or potential conflicts of interest arising out of the Stockholders’ Agent’s activities or authority as Stockholders’ Agent and his relationships with the Company or the Buyer (whether before or after the Closing), whether as an employee, consultant, agent, director, officer, stockholder or other Representative.
(d) Such Stockholders will severally indemnify and hold harmless the Stockholders’ Agent from and against any and all Losses arising out of actions taken or omitted to be taken pursuant to the provisions of this Section 6.8 and such other provisions of this Agreement as may be applicable (except in the case of the individual bad faith or willful misconduct of the Stockholders’ Agent), including the reasonable fees of attorneys, accountants and other advisors and all costs and expenses of investigation and defense of claims. The several liability of each such Stockholder under this Section 6.8(d) will equal the amount of such Losses multiplied by a fraction, the numerator of which shall be the aggregate Purchase Price to be received by such Stockholder as set forth in Section 1.2(b) of the Company Disclosure Schedule, and the denominator of which shall be the aggregate Purchase Price to be received by all of the Stockholders (including Scripps) (other than the Stockholders’ Agent) as set forth in Section 1.2(b) of the Company Disclosure Schedule.
(e) Notwithstanding anything to the contrary contained in this Agreement, the Stockholders’ Agent shall have no liabilities, duties or responsibilities to the Stockholders except those expressly set forth herein or in any of the other Transaction Documents, and Acquirer and Merger Sub no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any such Stockholder shall be entitled to rely exclusively on any action or decision of otherwise exist against the Stockholders’ Agent. The Stockholders’ Agent shall not, by virtue of acting as Stockholders’ Agent or any of the actions taken in such capacity, be deemed to have assumed any liability or become responsible for any obligation of any such Stockholder to any Person.
(f) The Stockholders’ Agent may resign upon written notice to the Stockholders. In the event that the Person serving named in Section 6.8(a) is unable or unwilling to serve in such capacity under this Section 6.8 at any time, Xxxxx Xxxxxxxx is hereby designated to serve as agent, attorney-in-fact and representative of each such Stockholder under this Section 6.8 in the place of the Person who is unable or unwilling to so serve. Such successor agent, attorney-in-fact and representative shall thereupon succeed to and become vested with all the rights, powers, privileges and duties under this Section 6.8 of the Person unable or unwilling to so serve. After any Person’s resignation or inability to serve under this Section 6.8, the provisions of this Section 6.8 shall continue to inure to his benefit as to any actions taken or omitted to be taken by him pursuant to the authority granted in this Section 6.8.
(g) Each of the Buyer and the Company (i) will be fully protected in relying upon and will be entitled to rely upon, and will have no liability to such Stockholders with respect to, agreements, actions, decisions and determinations of the Stockholders’ Agent may in connection with this Agreement or any of the Transaction Documents, and (ii) will be removed entitled to assume that all agreements, actions, decisions and determinations of the Stockholders’ Agent in connection with this Agreement or replaced from time any of the Transaction Documents are fully authorized by and binding upon all of such Stockholders.
(h) The Stockholders’ Agent shall not be liable to timeany of the Stockholders or any of their respective heirs, successors, assigns, personal representatives or if such Person resigns from his, her Affiliates for any decisions made or its position as actions taken or omitted to be taken by the Stockholders’ Agent, then a successor may be appointed, by the holders of a majority in interest of the aggregate amount of cash then held except in the Escrow Account (or, in the event that there is no cash then held in the Escrow Account by the Company Stockholders collectively having a Pro Rata Share greater than 50%) upon not less than 30 days’ prior written notice to Acquirer. No bond shall be required case of the Stockholders’ Agent.
(b) The Stockholders’ Agent will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence bad faith or willful misconduct. The Stockholders’ Agent shall not be liable for any action or omission pursuant may consult with legal counsel of his own choice with respect to the advice of counsel. The Company Stockholders shall indemnify the Stockholders’ Agent against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as all such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse the Company Stockholders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Stockholders’ Agent from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; provided, that while the Stockholders’ Agent may be paid from the aforementioned sources of funds, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Stockholders’ Agent be required to advance its own funds on behalf of the Company Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Agent hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Agent or the termination of this Agreementmatters.
(c) Upon the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing.
(d) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders and shall be final, binding and conclusive upon each such Company Stockholder; and each Acquirer Indemnified Party shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company Stockholder. Acquirer, Merger Sub and the Surviving Corporation are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent.
Appears in 1 contract
Stockholders’ Agent. (a) By At the adoption Closing, by virtue of the Mergerapproval of the Merger and this Agreement by the Company Securityholders and without any further action of any of the Company Securityholders or the Company, and by receiving the benefits hereof, including any consideration payable hereunder, each Company Stockholder Fortis Advisors LLC shall be deemed to have approved Shareholder Representative Services LLC constituted and appointed as the Stockholders’ Agent as of Closing for all purposes in connection with this Agreement and any related agreementsAgent. The Stockholders’ Agent shall be the agent, representative exclusive agent and attorney-in-fact for and on behalf of the Company Stockholders Securityholders to: (i) execute, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, (ii) following Closing, give and receive notices, instructions and communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company StockholderSecurityholder, to or from Acquirer relating to this Agreement or any of the Transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder Securityholder individually), (iii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (iv) review, negotiate and agree to and authorize Acquirer to reclaim an amount of cash from the Escrow Account pursuant to the terms of Section 1.6 or Article VIII hereof (including by not objecting to such claims), (iv) object to such claims pursuant to Section 1.6 or Article VIII1.6, (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder Securityholder or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company StockholdersSecurityholders, (vii) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders Securityholders (other than with respect to the issuance of the Merger Consideration less the Escrow Amount) in accordance with the terms hereof and in the manner provided herein, and (ix) take all actions necessary or appropriate in the judgment of the Stockholders’ Agent for the accomplishment of the foregoingforegoing under this Agreement, the Escrow Agreement or the Stockholders’ Agent Engagement Agreement, in each case without having to seek or obtain the consent of any Person under any circumstance. Notwithstanding the foregoing, the Stockholders’ Agent shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Stockholders’ Agent Engagement Agreement, and for purposes of clarity, there are no obligations of the Stockholders’ Agent in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. Acquirer, Merger Sub Subs and their respective Affiliates (including after the Effective Time, the Surviving CorporationEntity) shall be entitled to rely on the appointment of Shareholder Representative Services Fortis Advisors LLC as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact of each Company Stockholder Securityholder and as has having the duties, power and authority provided for in this Section 9.18.1. The powers, immunities and rights to indemnification granted to the Stockholders’ Agent Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, 71 bankruptcy or liquidation of any Company Securityholder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Fund. The Company Stockholders Securityholders and their successors shall be bound by all authorized actions taken and documents executed by the Stockholders’ Agent under this Agreement, the Escrow Agreement or the Stockholders’ Agent Engagement Agreement as if expressly confirmed and ratified in writing by the Company Securityholders, and all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Stockholders’ Agent taken in good faith under this Agreement, the Escrow Agreement or the Stockholders’ Agent Engagement Agreement are waived. Acquirer and Merger Sub Subs shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. The Stockholders’ Agent shall be entitled to: (i) rely upon the Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other party. The Person serving as the Stockholders’ Agent may be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then a successor may be appointed, by the holders of a majority in interest of the aggregate amount of cash then held in the Escrow Account (or, in the event that there is no cash then held in the Escrow Account by the Company Stockholders Securityholders collectively having a Pro Rata Share greater than 50%) upon not less than 30 days’ prior written notice to Acquirer. The immunities and rights to indemnification shall survive the resignation or removal of the Stockholders’ Agent or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required of the Stockholders’ Agent.
(b) The Certain Company Securityholders have entered into an engagement agreement (the “Stockholders’ Agent will incur no liability Engagement Agreement”) with the Stockholders’ Agent to provide direction to the Stockholders’ Agent in connection with its services under this Agreement, the Escrow Agreement and the Stockholders’ Agent Engagement Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Stockholders’ Agent nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Stockholders’ Agent Group”), shall be liable to any Company Securityholder for any act done or omitted hereunder, under the Escrow Agreement or under the Stockholders’ Agent Engagement Agreement as the Stockholders’ Agent while acting in good faith (and any act done or omitted pursuant to this Agreement the advice of counsel shall be conclusive evidence of such good faith) and any related agreements except to the extent resulting from its without gross negligence or willful misconduct. The Stockholders’ Agent Company Securityholders shall severally but not be liable for any action or omission pursuant to the advice of counsel. The Company Stockholders shall jointly indemnify and defend the Stockholders’ Agent Group and hold it harmless against any reasonableloss, documentedLiability, claim, damage, fee, cost, judgment, fine, amount paid in settlement or expense incurred without gross negligence, willful misconduct or bad faith on the part of the Stockholders’ Agent and arising out of, resulting from or in connection with the acceptance or administration of its duties hereunder, under the Escrow Agreement or under the Stockholders’ Agent Engagement Agreement, including all reasonable out-of-pocket losses, liabilities costs and expenses (“Representative Losses”) arising out and legal fees and other legal costs, fees and costs of or other skilled professionals and costs in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused seeking recovery from insurers reasonably incurred by the bad faith, gross negligence or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse (collectively, the “Stockholders’ Agent Expenses”). If not paid directly to the Stockholders’ Agent by the Company Stockholders the amount of Securityholders, such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses Stockholders’ Agent Expenses may be recovered by the Stockholders’ Agent first, from (i) the funds in the Expense Fund, and second, from the portion of the Escrow Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Securityholders pursuant to the terms hereof, at the time of distribution, and such recovery will be made from the Company Securityholders according to their respective Pro Rata Shares of such Stockholders; provided, ’ Agent Expenses. The Company Securityholders acknowledge that while the Stockholders’ Agent may shall not be paid from required to expend or risk its own funds or otherwise incur any financial liability in the aforementioned sources exercise or performance of fundsany of its powers, rights, duties or privileges or pursuant to this does not relieve Agreement, the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will Escrow Agreement, the Stockholders’ Agent be required to advance its own funds on behalf of Engagement Agreement or the Company Stockholders transactions contemplated hereby or otherwisethereby. Notwithstanding anything in this Agreement to the contraryFurthermore, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Agent hereunder. The foregoing shall not be required to take any action unless the Stockholders’ 72 Agent has been provided with funds, security or indemnities will survive the Closingwhich, the resignation or removal of in its determination, are sufficient to protect the Stockholders’ Agent or against the termination of this Agreement.
(c) Upon the Closingcosts, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, expenses and liabilities which will may be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any performing such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closingactions.
(dc) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a8.1(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders Securityholders and shall be final, binding and conclusive upon each such Company StockholderSecurityholder; and each Acquirer Indemnified Party shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company StockholderSecurityholder. Acquirer, Merger Sub Subs and the Surviving Corporation Entity are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent.
(d) Upon the Closing, Acquirer shall wire to the Stockholders’ Agent $50,000 (the “Expense Fund Amount”). The Expense Fund Amount shall be held by the Stockholders’ Agent in a segregated client account and shall be used (i) for the purposes of paying directly or reimbursing the Stockholders’ Agent for any Stockholders’ Agent Expenses incurred pursuant to this Agreement, the Escrow Agreement or any Stockholders’ Agent Engagement Agreement, or (ii) as otherwise determined by the Advisory Group (the “Expense Fund”). The Stockholders’ Agent is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholders’ Agent is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund and has no tax reporting or income distribution obligations. The Company Securityholders will not receive any interest on the Expense Fund and assign to the Stockholders’ Agent any such interest. Subject to Advisory Group approval, the Stockholders’ Agent may contribute funds to the Expense Fund from any consideration otherwise distributable to the Company Securityholders. As soon as reasonably determined by the Stockholders’ Agent that the Expense Fund is no longer required to be withheld, the Stockholders’ Agent shall distribute the remaining Expense Fund (if any) to the Paying Agent for further distribution to the Company Securityholders.
Appears in 1 contract
Samples: Merger Agreement (Veracyte, Inc.)
Stockholders’ Agent. (a) By At the adoption of the MergerClosing, and by receiving the benefits hereof, including any consideration payable hereunder, each Company Stockholder Xxx Xxxxxxxx shall be deemed to have approved Shareholder Representative Services LLC constituted and appointed as the Stockholders’ Agent as Agent. For purposes of Closing for all purposes in connection with this Agreement and any related agreements. The Agreement, the term “Stockholders’ Agent Agent” shall be mean the agent, representative and attorney-in-fact agent for and on behalf of the Company Stockholders Converting Holders to: (i) execute, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, transactions contemplated hereby; (ii) following Closing, give and receive notices, instructions instructions, and communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company StockholderConverting Holder, to or from Acquirer (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the Transactions transactions and any other matters contemplated by this Agreement hereby or by such other agreement, document or instrument thereby (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder Converting Holder individually), ; (iii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (ivii) review, negotiate and agree to and authorize claims asserted by Acquirer to reclaim an amount (on behalf of cash from the Escrow Account pursuant to the terms of Section 1.6 itself or Article VIII hereof (any other Indemnified Person, including by not objecting to such claims)) pursuant to this ARTICLE 8 and authorize Acquirer to Setoff an amount of cash from the Deferred Payments in satisfaction of claims asserted by Acquirer (on behalf of itself or any other Indemnified Person, including by not objecting to such claims) pursuant to this ARTICLE 8; (iviii) object to such claims pursuant to Section 1.6 or Article VIII, 8.3; (viv) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions transactions contemplated hereby by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder Converting Holder or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, ; (viv) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company Stockholders, Converting Holders; (viivi) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders (other than with respect to the issuance of the Merger Consideration less the Escrow Amount) Converting Holders in accordance with the terms hereof and in the manner provided herein, ; and (ixvii) take all actions necessary or appropriate in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Acquirer, Merger Sub and their respective Affiliates (including without limitation, after the Effective Time, the Surviving Corporation) shall be entitled to rely on the appointment of Shareholder Representative Services LLC Xxx Xxxxxxxx as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact of each Company Stockholder Converting Holder and as has having the duties, power and authority provided for in this Section 9.18.6. The Company Stockholders Converting Holders shall be bound by all actions taken and documents executed by the Stockholders’ Agent under in connection with this AgreementARTICLE 8, and Acquirer and Merger Sub other Indemnified Persons shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. The Person serving as the Stockholders’ Agent may be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then a successor may be appointed, time by the holders of a majority in interest of the aggregate amount value of cash then held in the Escrow Account (or, in the event that there is no cash then held in the Escrow Account by the Company Stockholders collectively having a Pro Rata Share greater than 50%) Guaranteed Deferred Payments upon not less than 30 days’ prior written notice to Acquirer. No bond shall be required of the Stockholders’ Agent.
(b) The Stockholders’ Agent will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Stockholders’ Agent shall not be liable for any action or omission pursuant to the advice of counsel. The Company Stockholders shall indemnify the Stockholders’ Agent against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse the Company Stockholders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Stockholders’ Agent from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; provided, that while the Stockholders’ Agent may be paid from the aforementioned sources of funds, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Stockholders’ Agent be required to advance its own funds on behalf of the Company Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Agent hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Agent or the termination of this Agreement.
(c) Upon the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing.
(d) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders and shall be final, binding and conclusive upon each such Company Stockholder; and each Acquirer Indemnified Party shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company Stockholder. Acquirer, Merger Sub and the Surviving Corporation are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent.
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Stockholders’ Agent. (a) By At the adoption of the MergerClosing, and by receiving the benefits hereofFortis Advisors LLC, including any consideration payable hereundera Delaware limited liability company, each Company Stockholder shall be deemed to have approved Shareholder Representative Services LLC constituted and appointed as the Stockholders’ Agent as Agent. For purposes of Closing for all purposes in connection with this Agreement and any related agreements. The Agreement, the term “Stockholders’ Agent Agent” shall be mean the agent, representative and attorney-in-fact exclusive agent for and on behalf of the Company Stockholders Converting Holders and Management Plan Participants to: (i) execute, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, transactions contemplated hereby; (ii) following Closing, give and receive notices, instructions instructions, and communications permitted or required under this Agreement, Agreement or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company StockholderConverting Holder or Management Plan Participant, to or from Acquirer Acquiror (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the Transactions transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument hereby (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder Converting Holder or Management Plan Participant individually), ; (iii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (iv) review, negotiate and agree to and authorize Acquirer deliveries to reclaim an amount Acquiror of cash from the Escrow Account pursuant to the terms Holdback Fund in satisfaction of Section 1.6 claims asserted by Acquiror (on behalf of itself or Article VIII hereof (any other Indemnified Person, including by not objecting to such claims), ) pursuant to this ARTICLE 8; (iv) object to such claims pursuant to Section 1.6 or Article VIII, 8.5; (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions transactions contemplated hereby by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder Converting Holder or Management Plan Participant or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, ; (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company Stockholders, Converting Holders and Management Plan Participants; (vii) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders Converting Holders or Management Plan Participants (other than with respect to the issuance payment of the Merger Consideration less the Escrow AmountConsideration) in accordance with the terms hereof and in the manner provided herein, ; and (ixviii) take all actions necessary or appropriate in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. AcquirerAcquiror, Merger Sub and their respective Affiliates (including without limitation, after the Effective Time, the Surviving Corporation) shall be entitled to rely on the appointment of Shareholder Representative Services Fortis Advisors LLC as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact of each Company Stockholder Converting Holder and as Management Plan Participant and has having the duties, power and authority provided for in this Section 9.18.7. The Company Stockholders powers, immunities and rights to indemnification granted to the Stockholders’ Agent and the Advisory Group (as defined below) under this Agreement: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Converting Holder or Management Plan Participant and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Converting Holder or Management Plan Participant of the whole or any fraction of his, her or its interest in the Holdback Fund. The Stockholders’ Agent shall be entitled to: (i) rely upon the Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Converting Holder or Management Plan Participant or other party. The Converting Holders and Management Plan Participants shall be bound by all actions taken and documents executed by the Stockholders’ Agent under in connection with this AgreementARTICLE 8, and Acquirer Acquiror and Merger Sub other Indemnified Persons shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. The Person serving as the Stockholders’ Agent may be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then a successor may be appointed, time by the holders of a majority in interest of the aggregate amount of cash then held in the Escrow Account (or, in the event that there is no cash then held in the Escrow Account by the Company Stockholders collectively having a Pro Rata Share greater than 50%) Holdback Fund upon not less than 30 thirty (30) days’ prior written notice to AcquirerAcquiror. The immunities and rights to indemnification shall survive the resignation or removal of the Stockholders’ Agent or any member of the Advisory Group (as defined below) and the Closing and/or any termination of this Agreement. No bond shall be required of the Stockholders’ Agent.
(b) The Stockholders’ Agent will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Stockholders’ Agent shall not be liable for any action or omission pursuant to the advice of counsel. The Company Stockholders shall indemnify the Stockholders’ Agent against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse the Company Stockholders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Stockholders’ Agent from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; provided, that while the Stockholders’ Agent may be paid from the aforementioned sources of funds, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Stockholders’ Agent be required to advance its own funds on behalf of the Company Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Agent hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Agent or the termination of this Agreement.
(c) Upon the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing.
(d) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders and shall be final, binding and conclusive upon each such Company Stockholder; and each Acquirer Indemnified Party shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company Stockholder. Acquirer, Merger Sub and the Surviving Corporation are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent.
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Stockholders’ Agent. (a) By the adoption Each of the MergerStockholders hereby authorizes, directs and by receiving appoints Xx. Xxxxxxx (the benefits hereof, including any consideration payable hereunder, each Company Stockholder shall be deemed to have approved Shareholder Representative Services LLC as the “Stockholders’ Agent Agent”) to act as of Closing for all purposes in connection with this Agreement sole and any related agreements. The Stockholders’ Agent shall be the exclusive agent, representative and attorney-in-fact for and on behalf representative of the Company Stockholders to: (i) executesuch Stockholder with respect to all matters arising under, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, (ii) following Closing, give and receive notices, instructions and communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company Stockholder, to or from Acquirer relating to this Agreement or any of the Transactions other Transaction Documents, including, without limitation, (i) asserting, defending, prosecuting, litigating, arbitrating, negotiating, settling, releasing and resolving any other matters contemplated by matters, claims (including indemnification claims and claims for Losses), differences, disputes and controversies of any nature whatsoever under any of the Transaction Documents, (ii) entering into amendments of this Agreement or by such other agreement, document or instrument (except to and waivers of any of the extent that provisions of this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder individually)Agreement, (iii) pursuant to Section 1.6determining, review, negotiate, object to, accept or agree to Acquirer’s calculation giving and receiving notices and processes under any of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22Transaction Documents, (iv) review, negotiate performing the rights and agree to and authorize Acquirer to reclaim an amount of cash from the Escrow Account pursuant duties expressly assigned to the terms of Section 1.6 or Article VIII hereof (including by not objecting to such claims), (iv) object to such claims pursuant to Section 1.6 or Article VIIIStockholders’ Agent hereunder and under the other Transaction Documents, (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements engaging and compromises of, employing agents and demand arbitration Representatives on behalf of such Stockholders and comply with Orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions the Stockholders’ Agent in connection with all such matters under any of the resolution Transaction Documents, (vi) entering into agreements (including releases) on behalf of such Stockholders with respect to any of the foregoing, and (vii) taking all actions and incurring all expenses as the Stockholders’ Agent shall reasonably deem necessary or prudent in connection with any of the foregoing; all on such terms and in such manner as he deems appropriate in his sole and absolute discretion. Any such actions taken, exercises of rights, power or authority, and any decision, determination, waiver, amendment or agreement made by the Stockholders’ Agent consistent herewith, shall be absolutely and irrevocably binding on such Stockholder as if such Stockholder personally had taken such action, exercised such rights, power or authority or made such decision, determination, waiver, amendment or agreement in such Stockholder’s individual capacity, and no such Stockholder shall have the right to object, dissent, protest or otherwise contest the same. Any action required to be taken by such Stockholder hereunder or under any of the other Transaction Documents or any such action which a Stockholder, at his or her election, has the right to take hereunder or under any of the other Transaction Documents, shall be taken only and exclusively by the Stockholders’ Agent and no Stockholder acting on his own shall be entitled to take any such action. The Stockholders’ Agent will, in a reasonably prompt manner, provide written notice to each such Stockholder of any dispute relating hereto or action taken by the Stockholders’ Agent pursuant to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder or necessary in the judgment authority delegated under this Section.
(b) The appointment of the Stockholders’ Agent for the accomplishment as such Stockholder’s attorney-in-fact revokes any power of the foregoing and attorney heretofore granted that authorized any other Person or Persons to represent such Stockholder with regard to any or all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company Stockholders, (vii) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders (other than with respect to the issuance of the Merger Consideration less the Escrow Amount) in accordance with the terms hereof and in the manner provided herein, and (ix) take all actions necessary or appropriate in the judgment Transaction Documents. The appointment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Acquirer, Merger Sub and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the appointment of Shareholder Representative Services LLC as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact pursuant hereto is coupled with an interest and is irrevocable.
(c) The Stockholders’ Agent hereby accepts the foregoing appointment and agrees to serve in such capacity, subject to the provisions hereof, for the period of each Company Stockholder time from and as having after the duties, power and authority provided date hereof without compensation except for in this Section 9.1. The Company the reimbursement from such Stockholders shall be bound by all actions taken and documents executed of reasonable out-of-pocket expenses incurred by the Stockholders’ Agent in his capacity as such. Each such Stockholder hereby waives all actual or potential conflicts of interest arising out of the Stockholders’ Agent’s activities or authority as Stockholders’ Agent and his relationships with the Company or the Buyer (whether before or after the Closing), whether as an employee, consultant, agent, director, officer, stockholder or other Representative.
(d) Such Stockholders will severally indemnify and hold harmless the Stockholders’ Agent from and against any and all Losses arising out of actions taken or omitted to be taken pursuant to the provisions of this Section 6.8 and such other provisions of this Agreement as may be applicable (except in the case of the individual bad faith or willful misconduct of the Stockholders’ Agent), including the reasonable fees of attorneys, accountants and other advisors and all costs and expenses of investigation and defense of claims. The several liability of each such Stockholder under this Section 6.8(d) will equal the amount of such Losses multiplied by a fraction, the numerator of which shall be the aggregate Purchase Price to be received by such Stockholder as set forth in Section 1.2(b) of the Company Disclosure Schedule, and the denominator of which shall be the aggregate Purchase Price to be received by all of the Stockholders (other than the Stockholders’ Agent) as set forth in Section 1.2(b) of the Company Disclosure Schedule.
(e) Notwithstanding anything to the contrary contained in this Agreement, the Stockholders’ Agent shall have no liabilities, duties or responsibilities to the Stockholders except those expressly set forth herein or in any of the other Transaction Documents, and Acquirer and Merger Sub no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any such Stockholder shall be entitled to rely exclusively on any action or decision of otherwise exist against the Stockholders’ Agent. The Stockholders’ Agent shall not, by virtue of acting as Stockholders’ Agent or any of the actions taken in such capacity, be deemed to have assumed any liability or become responsible for any obligation of any such Stockholder to any Person.
(f) The Stockholders’ Agent may resign upon written notice to the Stockholders. In the event that the Person serving named in Section 6.8(a) is unable or unwilling to serve in such capacity under this Section 6.8 at any time, Xxxxx Xxxxxxx is hereby designated to serve as agent, attorney-in-fact and representative of each such Stockholder under this Section 6.8 in the place of the Person who is unable or unwilling to so serve. Such successor agent, attorney-in-fact and representative shall thereupon succeed to and become vested with all the rights, powers, privileges and duties under this Section 6.8 of the Person unable or unwilling to so serve. After any Person’s resignation or inability to serve under this Section 6.8, the provisions of this Section 6.8 shall continue to inure to his benefit as to any actions taken or omitted to be taken by him pursuant to the authority granted in this Section 6.8.
(g) Each of the Buyer and the Company (i) will be fully protected in relying upon and will be entitled to rely upon, and will have no liability to such Stockholders with respect to, agreements, actions, decisions and determinations of the Stockholders’ Agent may in connection with this Agreement or any of the Transaction Documents, and (ii) will be removed entitled to assume that all agreements, actions, decisions and determinations of the Stockholders’ Agent in connection with this Agreement or replaced from time any of the Transaction Documents are fully authorized by and binding upon all of such Stockholders.
(h) The Stockholders’ Agent shall not be liable to timeany of the Stockholders or any of their respective heirs, successors, assigns, personal representatives or if such Person resigns from his, her Affiliates for any decisions made or its position as actions taken or omitted to be taken by the Stockholders’ Agent, then a successor may be appointed, by the holders of a majority in interest of the aggregate amount of cash then held except in the Escrow Account (or, in the event that there is no cash then held in the Escrow Account by the Company Stockholders collectively having a Pro Rata Share greater than 50%) upon not less than 30 days’ prior written notice to Acquirer. No bond shall be required case of the Stockholders’ Agent.
(b) The Stockholders’ Agent will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence bad faith or willful misconduct. The Stockholders’ Agent shall not be liable for any action or omission pursuant may consult with legal counsel of his own choice with respect to the advice of counsel. The Company Stockholders shall indemnify the Stockholders’ Agent against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as all such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse the Company Stockholders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Stockholders’ Agent from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; provided, that while the Stockholders’ Agent may be paid from the aforementioned sources of funds, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Stockholders’ Agent be required to advance its own funds on behalf of the Company Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Agent hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Agent or the termination of this Agreementmatters.
(c) Upon the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing.
(d) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders and shall be final, binding and conclusive upon each such Company Stockholder; and each Acquirer Indemnified Party shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company Stockholder. Acquirer, Merger Sub and the Surviving Corporation are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent.
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Stockholders’ Agent. (a) By At the adoption of the MergerClosing, and by receiving the benefits hereofFront Range Ventures, including any consideration payable hereunder, each Company Stockholder LLC shall be deemed to have approved Shareholder Representative Services LLC constituted and appointed as the Stockholders’ Agent as of Closing for all purposes in connection with this Agreement and any related agreementsAgent. The Stockholders’ Agent shall be the agent, representative and attorney-in-fact agent for and on behalf of the Company Stockholders Converting Holders to: (i) execute, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the TransactionsTransaction Documents, (ii) following Closing, give and receive notices, instructions and communications permitted or required under this Agreement, Agreement or any other agreement, document or instrument entered into or executed in connection herewithand the Transaction Documents, for and on behalf of any Company StockholderConverting Holder, to or from Acquirer (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the Transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument Transaction Documents (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder Converting Holder individually), (iii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (iv) review, negotiate and agree to and authorize Acquirer to reclaim an amount cancel a number of cash from shares of Acquirer Common Stock held in the Escrow Account pursuant to the terms Holdback Fund in satisfaction of Section 1.6 claims asserted by Acquirer (on behalf of itself or Article VIII hereof (any other Indemnified Person, including by not objecting to such claims)) pursuant to Article VI, (iv) object to such claims pursuant to Section 1.6 or Article VIII6.6, (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder Converting Holder or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company StockholdersConverting Holders, (vii) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders Converting Holders (other than with respect to the payment and issuance of the Total Merger Consideration less the Escrow Holdback Amount) in accordance with the terms hereof and in the manner provided herein, (vii) disburse to the Converting Holders their share of any cash amounts payable under this Agreement, including any closing cash consideration, Tax refund, and (ixviii) take all actions necessary or appropriate in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Acquirer, Merger Sub and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the appointment of Shareholder Representative Services Front Range Ventures, LLC as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact of each Company Stockholder Converting Holder and as has having the duties, power and authority provided for in this Section 9.18.13. The Company Stockholders Converting Holders shall be bound by all actions taken and documents executed by the Stockholders’ Agent under in connection with this Agreement, and Acquirer and Merger Sub other Indemnified Persons shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. The Person serving as the Stockholders’ Agent may be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then a successor may be appointed, by the holders of a majority in interest of the aggregate amount number of cash shares of Acquirer Common Stock then held in the Escrow Account Holdback Fund (or, in the event that there is are no cash shares then held in the Escrow Account Holdback Fund, by the Company Stockholders Converting Holders collectively having a Pro Rata Share greater than 50%) upon not less than 30 days’ prior written notice to Acquirer. No bond shall be required of the Stockholders’ Agent.
(b) The Stockholders’ Agent will incur no liability shall not be liable to any Converting Holder for any act done or omitted hereunder as the Stockholders’ Agent while acting in connection with its services good faith (and any act done or omitted pursuant to this Agreement the advice of counsel shall be conclusive evidence of such good faith) and any related agreements except to the extent resulting from its without gross negligence or willful misconduct. The Stockholders’ Agent shall be provided $25,000 for its services and as a retainer to cover any expenses (“Stockholders’ Agent Fee”); provided that the Converting Holders shall severally but not be liable for any action or omission pursuant to the advice of counsel. The Company Stockholders shall jointly indemnify the Stockholders’ Agent and hold it harmless against any reasonableloss, documentedLiability or expense incurred without gross negligence or willful misconduct on the part of the Stockholders’ Agent and arising out of, and resulting from or in connection with the acceptance or administration of its duties hereunder, including all reasonable out-of-pocket losses, liabilities costs and expenses (“Representative Losses”) arising out of or in connection with this Agreement and legal fees and other legal costs reasonably incurred by the Stockholders’ Agent, and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, expenses that in exceed the event that Stockholders’ Agent Fee. The Stockholders’ Agent Fee shall be considered earned on the Holdback Release Date and any such Representative Loss is finally adjudicated amount not disbursed to have been caused by cover expenses shall be the bad faith, gross negligence or willful misconduct property of the Stockholders’ Agent, . If the Stockholders’ Agent will reimburse costs are not paid directly to the Company Stockholders Stockholders’ Agent by the Converting Holders, then such losses, Liabilities or expenses, including the entirety of the expended amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses Stockholders’ Agent Fee may be recovered by the Stockholders’ Agent from (i) the funds in portion of the Expense Holdback Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; providedConverting Holders (and not distributed or distributable to an Indemnified Person or subject to a pending claim of an Indemnified Person) on or after the Holdback Release Date pursuant to the terms hereof, that while at the Stockholders’ Agent may time of distribution, and such recovery will be paid made from the aforementioned sources Converting Holders according to their respective Pro Rata Shares of fundssuch losses, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered Liabilities or incurred. In no event will the Stockholders’ Agent be required to advance its own funds on behalf of the Company Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Agent hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Agent or the termination of this Agreementexpenses.
(c) Upon the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing.
(d) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a8.13(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders Converting Holders and shall be final, binding and conclusive upon each such Company StockholderConverting Holder; and each Acquirer Indemnified Party shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company StockholderConverting Holder. Acquirer, Merger Sub and Sub, the Surviving Corporation and the Indemnified Persons are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent.
Appears in 1 contract
Stockholders’ Agent. (a) By At the adoption of the MergerClosing, and by receiving the benefits hereof, including any consideration payable hereunder, each Company Stockholder Exxxxxxx Xxxxxxx shall be deemed to have approved Shareholder Representative Services LLC constituted and appointed as the Stockholders’ Agent as of Closing for all purposes in connection with this Agreement and any related agreementsAgent. The Stockholders’ Agent shall be the agent, representative and attorney-in-fact agent for and on behalf of the Company Stockholders Contributing Equityholders to: (i) execute, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, (ii) following Closing, give and receive notices, instructions and communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company StockholderContributing Equityholders, to or from Acquirer (on behalf of itself or any other Stockholder Indemnified Person) relating to this Agreement or any of the Transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder individually)instrument, (iii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (iv) review, negotiate and agree to and authorize Acquirer to reclaim an amount of cash from the Escrow Account pursuant Agent to release cash to any Stockholder Indemnified Person and to cancel a number of shares of Acquirer Common Stock held in the terms Indemnity Escrow Fund in satisfaction of Section 1.6 claims asserted by Acquirer (on behalf of itself or Article VIII hereof (any other Stockholder Indemnified Person, including by not objecting to such claims)) pursuant to this Article 8, (iv) object to such claims pursuant to Section 1.6 or Article VIII8.8, (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration a claim and comply with Orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions by arbitrationa court, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder Contributing Equityholder or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company Stockholders, Contributing Equityholders; (vii) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders (other than with respect to the issuance of the Merger Consideration less the Escrow Amount) Contributing Equityholders in accordance with the terms hereof and in the manner provided herein, herein and (ixviii) take all actions necessary or appropriate in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Acquirer, the Merger Sub Subs and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the appointment of Shareholder Representative Services LLC Mxxxx Xxxxxxx as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact of each Company Stockholder Contributing Equityholder and as has having the duties, power and authority provided for in this Section 9.1Article 8. The Company Stockholders Contributing Equityholders shall be bound by all actions taken and documents executed by the Stockholders’ Agent under in connection with this AgreementArticle 8, and Acquirer and Merger Sub other Indemnified Persons shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. The Person serving as the Stockholders’ Agent may be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then a successor may be appointed, time by the holders of a majority in interest of the aggregate amount of cash then held in the Escrow Account (or, in the event that there is no cash then held in the Escrow Account by the Company Stockholders collectively having a Pro Rata Share greater than 50%) Contributing Equityholders upon not less than 30 days’ prior written notice to Acquirer. No bond shall be required of the Stockholders’ Agent.
(b) The Stockholders’ Agent will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Stockholders’ Agent shall not be liable for any action or omission pursuant to the advice of counsel. The Company Stockholders shall indemnify the Stockholders’ Agent against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse the Company Stockholders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Stockholders’ Agent from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; provided, that while the Stockholders’ Agent may be paid from the aforementioned sources of funds, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Stockholders’ Agent be required to advance its own funds on behalf of the Company Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Agent hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Agent or the termination of this Agreement.
(c) Upon the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing.
(d) After the Closing, any Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders Contributing Equityholders and shall be final, binding and conclusive upon each such Company StockholderContributing Equityholders; and each Acquirer Indemnified Party Person shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company StockholderContributing Equityholders. Acquirer, the Merger Sub Subs, and the Surviving Corporation are hereby relieved from any Liability to any Person for any acts reasonably done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent.
(c) Notwithstanding the obligations of the Stockholders’ Agent set forth in Section 8.9(a), the Stockholders’ Agent shall not be responsible to any Contributing Equityholder for any loss or damages which such Contributing Equityholder may suffer by the performance of the Stockholders’ Agent’s duties under this Agreement and the Stockholders’ Agent shall incur no liability to any Contributing Equityholder with respect to any action taken or suffered by the Stockholders’ Agent in reliance upon any notice, direction, instruction, consent, statement or other documents believed by it to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification or other obligations of the Contributing Equityholders under this Agreement or any agreement contemplated hereunder, including the defense or settlement of any claims and the making of payments with respect thereto (other than loss or damages arising ultimately and finally determined by a court of competent jurisdiction (and all rights of appeal have been exhausted or have lapsed) to have arisen from willful violation of Applicable Law or gross negligence in the performance of such duties under this Agreement by the Stockholders’ Agent). The Stockholders’ Agent shall not have any duties or responsibilities except those expressly set forth in this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, and no implied covenants, functions, responsibilities, duties, obligations or Liabilities shall be read into this Agreement or any agreement or instrument entered into or delivered in connection with the Transactions or shall otherwise exist against the Stockholders’ Agent. The Stockholders’ Agent may, in all questions arising under this Agreement or any agreement contemplated hereunder, rely on the advice of counsel (it being understood that any act done or omitted pursuant to the advice of legal counsel shall be conclusive evidence of good faith and reasonable judgment), and for anything done, omitted or suffered in good faith by the or any agreement contemplated hereunder it shall not be liable to the Contributing Equityholder. Without limiting the foregoing, each Contributing Equityholder shall indemnify and defend the Stockholders’ Agent and hold the Stockholders’ Agent harmless against any loss, damage, cost, liability or expense actually incurred without fraud, gross negligence or willful misconduct by the Stockholders’ Agent (as determined in a final and non-appealable judgment of a court of competent jurisdiction) and arising out of or in connection with the acceptance, performance or administration of the Stockholders’ Agent duties under this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions. Any expenses or taxable income incurred by the Stockholders’ Agent in connection with the performance of its duties under this Agreement or any agreement or instrument entered into or delivered in connection with the Transactions shall not be the personal obligation of the Stockholders’ Agent but shall be payable by and attributable to Contributing Equityholders.
Appears in 1 contract
Samples: Merger Agreement (Logiq, Inc.)
Stockholders’ Agent. (a) By the adoption Each of the MergerStockholders hereby authorizes, directs and by receiving appoints Xxxxxx XxXxxx (the benefits hereof, including any consideration payable hereunder, each Company Stockholder shall be deemed to have approved Shareholder Representative Services LLC as the “Stockholders’ Agent Agent”) to act as of Closing for all purposes in connection with this Agreement sole and any related agreements. The Stockholders’ Agent shall be the exclusive agent, representative and attorney-in-fact for and on behalf representative of the Company Stockholders to: (i) executesuch Stockholder with respect to all matters arising under, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, (ii) following Closing, give and receive notices, instructions and communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company Stockholder, to or from Acquirer relating to this Agreement or any of the Transactions other Transaction Documents, including, without limitation, (i) asserting, defending, prosecuting, litigating, arbitrating, negotiating, settling, releasing and resolving any other matters contemplated by matters, claims (including indemnification claims and claims for Losses), differences, disputes and controversies of any nature whatsoever under any of the Transaction Documents, (ii) entering into amendments of this Agreement or by such other agreement, document or instrument (except to and waivers of any of the extent that provisions of this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder individually)Agreement, (iii) pursuant to Section 1.6determining, review, negotiate, object to, accept or agree to Acquirer’s calculation giving and receiving notices and processes under any of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22Transaction Documents, (iv) review, negotiate performing the rights and agree to and authorize Acquirer to reclaim an amount of cash from the Escrow Account pursuant duties expressly assigned to the terms of Section 1.6 or Article VIII hereof (including by not objecting to such claims), (iv) object to such claims pursuant to Section 1.6 or Article VIIIStockholders’ Agent hereunder and under the other Transaction Documents, (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements engaging and compromises of, employing agents and demand arbitration Representatives on behalf of such Stockholders and comply with Orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions the Stockholders’ Agent in connection with all such matters under any of the resolution Transaction Documents, (vi) entering into agreements (including releases) on behalf of such Stockholders with respect to any of the foregoing, and (vii) taking all actions and incurring all expenses as the Stockholders’ Agent shall reasonably deem necessary or prudent in connection with any of the foregoing; all on such terms and in such manner as he deems appropriate in her or his sole and absolute discretion. Any such actions taken, exercises of rights, power or authority, and any decision, determination, waiver, amendment or agreement made by the Stockholders’ Agent consistent herewith, shall be absolutely and irrevocably binding on such Stockholder as if such Stockholder personally had taken such action, exercised such rights, power or authority or made such decision, determination, waiver, amendment or agreement in such Stockholder’s individual capacity, and no such Stockholder shall have the right to object, dissent, protest or otherwise contest the same. Any action required to be taken by such Stockholder hereunder or under any of the other Transaction Documents or any such action which a Stockholder, at his or her election, has the right to take hereunder or under any of the other Transaction Documents, shall be taken only and exclusively by the Stockholders’ Agent and no Stockholder acting on her or his own shall be entitled to take any such action. The Stockholders’ Agent will, in a reasonably prompt manner, provide written notice to each such Stockholder of any dispute relating hereto or action taken by the Stockholders’ Agent pursuant to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder or necessary in the judgment authority delegated under this Section.
(b) The appointment of the Stockholders’ Agent for the accomplishment as such Stockholder’s attorney-in-fact revokes any power of the foregoing and attorney heretofore granted that authorized any other Person or Persons to represent such Stockholder with regard to any or all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company Stockholders, (vii) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders (other than with respect to the issuance of the Merger Consideration less the Escrow Amount) in accordance with the terms hereof and in the manner provided herein, and (ix) take all actions necessary or appropriate in the judgment Transaction Documents. The appointment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Acquirer, Merger Sub and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the appointment of Shareholder Representative Services LLC as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact pursuant hereto is coupled with an interest and is irrevocable.
(c) The Stockholders’ Agent hereby accepts the foregoing appointment and agrees to serve in such capacity, subject to the provisions hereof, for the period of each Company Stockholder time from and as having after the duties, power and authority provided date hereof without compensation except for in this Section 9.1. The Company the reimbursement from such Stockholders shall be bound by all actions taken and documents executed of reasonable out-of-pocket expenses incurred by the Stockholders’ Agent in her or his capacity as such. Each such Stockholder hereby waives all actual or potential conflicts of interest arising out of the Stockholders’ Agent’s activities or authority as Stockholders’ Agent and her or his relationships with the Company or the Buyer (whether before or after the Closing), whether as an employee, consultant, agent, director, officer, stockholder or other Representative.
(d) Such Stockholders will severally indemnify and hold harmless the Stockholders’ Agent from and against any and all Losses arising out of actions taken or omitted to be taken pursuant to the provisions of this Section 6.6 and such other provisions of this Agreement as may be applicable (except in the case of the individual bad faith or willful misconduct of the Stockholders’ Agent), including the reasonable fees of attorneys, accountants and other advisors and all costs and expenses of investigation and defense of claims. The several liability of each such Stockholder under this Section 6.6(d) will equal the amount of such Losses multiplied by a fraction, the numerator of which shall be the aggregate Purchase Price to be received by such Stockholder as set forth in Section 1.2(b) of the Company Disclosure Schedule, and the denominator of which shall be the aggregate Purchase Price to be received by all of the Stockholders as set forth in Section 1.2(b) of the Company Disclosure Schedule.
(e) Notwithstanding anything to the contrary contained in this Agreement, the Stockholders’ Agent shall have no liabilities, duties or responsibilities to the Stockholders except those expressly set forth herein or in any of the other Transaction Documents, and Acquirer and Merger Sub no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any such Stockholder shall be entitled to rely exclusively on any action or decision of otherwise exist against the Stockholders’ Agent. The Stockholders’ Agent shall not, by virtue of acting as Stockholders’ Agent or any of the actions taken in such capacity, be deemed to have assumed any liability or become responsible for any obligation of any such Stockholder to any Person.
(f) The Stockholders’ Agent may resign upon written notice to the Stockholders. In the event that the Person serving named in Section 6.6(a) is unable or unwilling to serve in such capacity under this Section 6.6 at any time, Xxxxxxx XxXxxx is hereby designated to serve as agent, attorney-in-fact and representative of each such Stockholder under this Section 6.6 in the place of the Person who is unable or unwilling to so serve. Such successor agent, attorney-in-fact and representative shall thereupon succeed to and become vested with all the rights, powers, privileges and duties under this Section 6.6 of the Person unable or unwilling to so serve. After any Person’s resignation or inability to serve under this Section 6.6, the provisions of this Section 6.6 shall continue to inure to her or his benefit as to any actions taken or omitted to be taken by him pursuant to the authority granted in this Section 6.6.
(g) Each of the Buyer and the Company (i) will be fully protected in relying upon and will be entitled to rely upon, and will have no liability to such Stockholders with respect to, agreements, actions, decisions and determinations of the Stockholders’ Agent may in connection with this Agreement or any of the Transaction Documents, and (ii) will be removed entitled to assume that all agreements, actions, decisions and determinations of the Stockholders’ Agent in connection with this Agreement or replaced from time any of the Transaction Documents are fully authorized by and binding upon all of such Stockholders.
(h) The Stockholders’ Agent shall not be liable to timeany of the Stockholders or any of their respective heirs, successors, assigns, personal representatives or if such Person resigns from his, her Affiliates for any decisions made or its position as actions taken or omitted to be taken by the Stockholders’ Agent, then a successor may be appointed, by the holders of a majority in interest of the aggregate amount of cash then held except in the Escrow Account (or, in the event that there is no cash then held in the Escrow Account by the Company Stockholders collectively having a Pro Rata Share greater than 50%) upon not less than 30 days’ prior written notice to Acquirer. No bond shall be required case of the Stockholders’ Agent.
(b) The Stockholders’ Agent will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence bad faith or willful misconduct. The Stockholders’ Agent shall not be liable for any action may consult with legal counsel of her or omission pursuant his own choice with respect to the advice of counsel. The Company Stockholders shall indemnify the Stockholders’ Agent against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as all such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse the Company Stockholders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Stockholders’ Agent from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; provided, that while the Stockholders’ Agent may be paid from the aforementioned sources of funds, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Stockholders’ Agent be required to advance its own funds on behalf of the Company Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Agent hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Agent or the termination of this Agreementmatters.
(c) Upon the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing.
(d) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders and shall be final, binding and conclusive upon each such Company Stockholder; and each Acquirer Indemnified Party shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company Stockholder. Acquirer, Merger Sub and the Surviving Corporation are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent.
Appears in 1 contract
Stockholders’ Agent. (a) By At the adoption of the MergerClosing, and by receiving the benefits hereof, including any consideration payable hereunder, each Company Stockholder Fortis Advisors LLC shall be deemed to have approved Shareholder Representative Services LLC constituted and appointed as the Stockholders’ Agent as of Closing for all purposes in connection with this Agreement and any related agreementsAgent. The Stockholders’ Agent shall be the agent, representative exclusive agent and attorney-in-fact for and on behalf of the Company Stockholders Converting Holders to: (i) execute, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, (ii) following Closing, give and receive notices, instructions and communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company StockholderConverting Holder, to or from Acquirer (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the Transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder Converting Holder individually), (iii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (iv) review, negotiate and agree to and authorize Acquirer to reclaim an amount cancel a number of cash from shares of Acquirer Common Stock held in the Escrow Account pursuant to the terms Holdback Fund in satisfaction of Section 1.6 claims asserted by Acquirer (on behalf of itself or Article VIII hereof (any other Indemnified Person, including by not objecting to such claims)) pursuant to this Article V, (iv) object to such claims pursuant to Section 1.6 or Article VIII5.6, (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder Converting Holder or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company StockholdersConverting Holders, (vii) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders Converting Holders (other than with respect to the payment and issuance of the Total Merger Consideration less the Escrow Holdback Amount) in accordance with the terms hereof and in the manner provided herein, herein and (ixviii) take all actions necessary or appropriate in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Notwithstanding the foregoing, the Stockholders’ Agent shall have no obligation to act on behalf of the Converting Holders, except as expressly provided herein and in the Stockholders’ Agent Engagement Agreement, and for purposes of clarity, there are no obligations of the Stockholders’ Agent in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. The Stockholders’ Agent shall be entitled to: (i) rely upon the Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Converting Holder or other party. Acquirer, Merger Sub and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the appointment of Shareholder Representative Services Fortis Advisors LLC as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact of each Company Stockholder Converting Holder and as has having the duties, power and authority provided for in this Section 9.15.7. The Company Stockholders Converting Holders shall be bound by all actions taken and documents executed by the Stockholders’ Agent in connection with this Article V, and all defenses which may be available to any Converting Holder to contest, negate or disaffirm the action of the Stockholders’ Agent taken in good faith under this Agreement, and Agreement or the Stockholders’ Agent Engagement Agreement are waived. Acquirer and Merger Sub other Indemnified Persons shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. The powers, immunities and rights to indemnification granted to the Stockholders’ Agent Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Converting Holder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Converting Holder of the whole or any fraction of his, her or its interest in the Holdback Fund. The Person serving as the Stockholders’ Agent may be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then a successor may be appointed, by the holders of a majority in interest of the aggregate amount number of cash shares of Acquirer Common Stock then held in the Escrow Account Holdback Fund (or, in the event that there is no cash shares then held in the Escrow Account Holdback Fund by the Company Stockholders Converting Holders collectively having a Pro Rata Share greater than 50%) upon not less than 30 days’ prior written notice to Acquirer. The immunities and rights to indemnification shall survive the resignation or removal of the Stockholders’ Agent or any member of the Advisory Group and the Closing and/or the termination of this Agreement. No bond shall be required of the Stockholders’ Agent.
(b) The Stockholders’ Agent will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Stockholders’ Agent shall not be liable for any action or omission pursuant to the advice of counsel. The Company Stockholders shall indemnify the Stockholders’ Agent against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse the Company Stockholders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Stockholders’ Agent from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; provided, that while the Stockholders’ Agent may be paid from the aforementioned sources of funds, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Stockholders’ Agent be required to advance its own funds on behalf of the Company Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Agent hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Agent or the termination of this Agreement.
(c) Upon the Closing, the Company will wire US$ 200,000 the Expense Fund Amount (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses incurred by the purposes of paying directly, or reimbursing the Stockholders’ AgentAgent for, any Stockholders’ Agent Expenses pursuant to this Agreement, the Stockholders’ Agent Engagement Agreement and the agreements ancillary hereto. The Company Stockholders Converting Holders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholders’ Agent is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund, and has no tax reporting or income distribution obligations. The Stockholders’ Agent will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent Acquirer for further distribution to the Company StockholdersConverting Holders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders Converting Holders at the time of Closing.
(dc) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, Neither the Stockholders’ Agent that is within nor its members, managers, directors, officers, contractors, agents and employees nor any member of the scope Advisory Group (collectively, the “Stockholders’ Agent Group”) shall be liable to any Converting Holder for any act done or omitted hereunder or under the Stockholders’ Agent Engagement Agreement as the Stockholders’ Agent 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) and without gross negligence or willful misconduct. The Converting Holders shall severally but not jointly indemnify the Stockholders’ Agent Group and defend and hold it harmless against any loss, Liability, claim, damage, fee, fine, judgment, amount paid in settlement or expense incurred without gross negligence, willful misconduct or bad faith on the part of the Stockholders’ Agent’s authority under Section 9.1(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders Agent and shall be final, binding and conclusive upon each such Company Stockholder; and each Acquirer Indemnified Party shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction arising out of, each resulting from or in connection with the acceptance or administration of its duties hereunder and every such Company Stockholder. Acquirer, Merger Sub and the Surviving Corporation are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of under the Stockholders’ Agent.Agent Engagement Agreement, including all reasonable out-of-pocket costs and expenses and legal fees and other legal and skilled professionals’ costs reasonably incurred by the Stockholders’ Agent (collectively, the “Stockholders’ Agent Expenses”). If not paid directly to the Stockholders’ Agent by the Converting Holders, such Stockholders’ Agent Expenses may be recovered by the Stockholders’ Agent from (i) the funds in the Expense Fund and (ii) the portion of the Holdback Fund otherwise distributable to the Converting Holders (and not distributed or distributable to an Indemnified Person or subject to a pending indemnification claim of an Indemnified Person) on or after the Holdback Release Date pursuant to the terms hereof, at the time of distribution, and such recovery will be made from the Converting Holders according to their respective Pro Rata Shares of such
Appears in 1 contract
Stockholders’ Agent. (a) By At the adoption of the MergerClosing, and by receiving the benefits hereof, including any consideration payable hereunder, each Company Stockholder Fortis Advisors LLC shall be deemed to have approved Shareholder Representative Services LLC constituted and appointed as the Stockholders’ Agent as of Closing for all purposes in connection with this Agreement and any related agreementsPurchaser Representative. The Stockholders’ Agent shall be the agent, representative and attorney-in-fact exclusive agent for and on behalf of the Company Stockholders toConverting Holders to in its capacity as Stockholders’ Agent and Purchaser Representative: (i) execute, as the Stockholders’ AgentAgent and Purchaser Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, (ii) following Closing, give and receive notices, instructions and communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company StockholderConverting Holder, to or from Acquirer (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the Transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder Converting Holder individually), (iii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (iv) review, negotiate and agree to and authorize Acquirer to reclaim an amount of cash from the Escrow Account pursuant to the terms Fund in satisfaction of Section 1.6 claims asserted by Acquirer (on behalf of itself or Article VIII hereof (any other Indemnified Person, including by not objecting to such claims)) pursuant to this Article VIII, (iv) object to such claims pursuant to Section 1.6 or Article VIII8.6, (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder Converting Holder or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company StockholdersConverting Holders, (vii) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders Converting Holders (other than with respect to the payment and issuance of the Merger Consideration less the Cash Escrow Amount) in accordance with the terms hereof and in the manner provided herein, herein and (ixviii) take all actions necessary or appropriate in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Acquirer, the Merger Sub Subs and their respective Affiliates (including after the Effective Time, the First Step Surviving CorporationCorporation and, after the Second Effective Time, the Final Surviving Entity) shall be entitled to rely on the appointment of Shareholder Representative Services Fortis Advisors LLC as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact of each Company Stockholder Converting Holder and as has having the duties, power and authority provided for in this Section 9.18.7. The Company Stockholders Converting Holders shall be bound by all actions taken and documents executed by the Stockholders’ Agent under in connection with this AgreementArticle VIII, and Acquirer and Merger Sub other Indemnified Persons shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. By voting in favor of the adoption of this Agreement and the consummation of the Merger, executing and delivering any consent or agreement in connection therewith or participating in the Merger and receiving the benefits thereof, each Converting Holder (1) agrees that all actions taken by the Stockholders’ Agent under this Agreement or the Escrow Agreement shall be binding upon such Converting Holder and such Converting Holder’s successors as if expressly confirmed and ratified in writing by such Converting Holder, and (2) waives any and all defenses which may be available to contest, negate or disaffirm the action of the Stockholders’ Agent taken in good faith under this Agreement or the Escrow Agreement. The Person serving as the Stockholders’ Agent may be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then a successor may be appointed, by the holders of a majority in interest of the aggregate amount of cash then held in the Escrow Account (or, in the event that there is no cash then held in the Escrow Account by the Company Stockholders collectively having a Pro Rata Share greater than 50%) Fund upon not less than 30 days’ prior written notice to Acquirer. No bond shall be required of the Stockholders’ Agent. The immunities and rights to indemnification granted in this Section 8.7 shall survive the resignation or removal of Stockholders’ Agent or any member of the Advisory Group (as defined below) and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(b) The Certain Converting Holders have entered into a letter agreement with the Stockholders’ Agent will incur no liability to provide direction to the Stockholders’ Agent in connection with the performance of its services pursuant to under this Agreement and the Escrow Agreement (such Converting Holders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Stockholders’ Agent (including in its capacity as Purchaser Representative and together with its members, managers, directors, officers, contractors, agents and employees) nor any related agreements except member of the Advisory Group (collectively, the “Stockholders’ Agent Group”), shall be liable to any Converting Holder for any act done or omitted hereunder as the Stockholders’ Agent Group while acting in good faith (and any act done or omitted pursuant to the extent resulting from its advice of counsel shall be conclusive evidence of such good faith) and without gross negligence or willful misconduct. The Acquirer and Merger Subs (including after the Effective Time, the First Step Surviving Corporation and, after the Second Effective Time, the Final Surviving Entity), and their respective Affiliates shall not be liable to any Converting Holder for any act done or omitted hereunder by the Stockholders’ Agent. The Converting Holders shall severally but not jointly indemnify the Stockholders’ Agent Group and hold it harmless against any loss, claim, damage, Liability or expense incurred without gross negligence, willful misconduct or bad faith on the part of the Stockholders’ Agent Group and arising out of, resulting from or in connection with the acceptance or administration of its duties hereunder, including all reasonable out-of-pocket costs and expenses, legal fees and other legal costs reasonably incurred by the Stockholders’ Agent, fees and costs of other skilled professionals, and in connection with seeking recovery from insurers, judgments, fines, amounts paid in settlement and Stockholders’ Agent fees (collectively, the “Agent Expenses”). The Converting Holders acknowledge that the Stockholders’ Agent shall not be liable for any action or omission pursuant to the advice of counsel. The Company Stockholders shall indemnify the Stockholders’ Agent against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse the Company Stockholders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Stockholders’ Agent from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; provided, that while the Stockholders’ Agent may be paid from the aforementioned sources of funds, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Stockholders’ Agent be required to advance expend or risk its own funds on behalf or otherwise incur any financial liability in the exercise or performance of the Company Stockholders any of its powers, rights, duties or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions privileges or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Agent hereunder. The foregoing indemnities will survive the Closing, the resignation or removal administration of the Stockholders’ Agent or the termination of this Agreementits duties.
(c) Upon the Closing, Acquirer shall wire to the Company will wire US$ 200,000 Stockholders’ Agent $75,000 (the “Expense Fund Amount”). The Expense Fund Amount shall be held by the Stockholders’ Agent as agent and for the benefit of the Converting Holders in a segregated client account and shall be used for the purposes of paying directly, or reimbursing the Stockholders’ Agent for, any Agent Expenses incurred pursuant to this Agreement, the Escrow Agreement or any Stockholders’ Agent letter agreement (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings). The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The Stockholders’ Agent is not providing any investment supervision, recommendations or advice. The Stockholders’ Agent shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholders’ Agent is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund, and has no tax reporting or income distribution obligations hereunder. The Converting Holders shall be treated as the owners of the Expense Fund for Tax purposes. As soon as practicable following the completion of the reasonably determined by Stockholders’ Agent’s responsibilitiesAgent that the Expense Fund is no longer required to be withheld, the Stockholders’ Agent will deliver any shall distribute the remaining balance of the Expense Fund (if any) to the Exchange Escrow Agent (or directly to the Paying Agent if so instructed) for further distribution to the Company StockholdersConverting Holders. For tax purposesThe Agent Expenses may be recovered first, from the Expense Fund, second, from the portion of the Escrow Fund will be treated as having been received otherwise distributable to the Converting Holders (and voluntarily set aside by not distributed or distributable to an Indemnified Person or subject to a pending indemnification claim of an Indemnified Person) on or after the Company Stockholders Escrow Release Date pursuant to the terms hereof, at the time of Closingdistribution, and third, directly from the Converting Holders. Any such recovery will be made from the Converting Holders according to their respective Pro Rata Shares of such Agent Expenses.
(d) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a8.7(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders Converting Holders and shall be final, binding and conclusive upon each such Company StockholderConverting Holder; and each Acquirer Indemnified Party Person shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company StockholderConverting Holder. Acquirer, the Merger Sub Subs, the First Step Surviving Corporation, the Final Surviving Entity and the Surviving Corporation Indemnified Persons are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent. The powers, immunities and rights to indemnification granted to the Stockholders’ Agent and the Advisory Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Converting Holder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Converting Holder of the whole or any fraction of his, her or its interest in the Escrow Fund. The Stockholders’ Agent shall be entitled to: (i) rely upon the Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Converting Holder or other party.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Marin Software Inc)
Stockholders’ Agent. (a) By the adoption Each of the MergerStockholders hereby authorizes, directs and by receiving appoints Xxxxxxx Xxxxxx (the benefits hereof, including any consideration payable hereunder, each Company Stockholder shall be deemed to have approved Shareholder Representative Services LLC as the “Stockholders’ Agent Agent”) to act as of Closing for all purposes in connection with this Agreement sole and any related agreements. The Stockholders’ Agent shall be the exclusive agent, representative and attorney-in-fact for and on behalf representative of the Company Stockholders to: (i) executesuch Stockholder with respect to all matters arising under, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, (ii) following Closing, give and receive notices, instructions and communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company Stockholder, to or from Acquirer relating to this Agreement or any of the Transactions other Transaction Documents, including, without limitation, (i) asserting, defending, prosecuting, litigating, arbitrating, negotiating, settling, releasing and resolving any other matters contemplated by matters, claims (including indemnification claims and claims for Losses), differences, disputes and controversies of any nature whatsoever under any of the Transaction Documents, (ii) entering into amendments of this Agreement or by such other agreement, document or instrument (except to and waivers of any of the extent that provisions of this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder individually)Agreement, (iii) pursuant to Section 1.6determining, review, negotiate, object to, accept or agree to Acquirer’s calculation giving and receiving notices and processes under any of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22Transaction Documents, (iv) review, negotiate performing the rights and agree to and authorize Acquirer to reclaim an amount of cash from the Escrow Account pursuant duties expressly assigned to the terms of Section 1.6 or Article VIII hereof (including by not objecting to such claims), (iv) object to such claims pursuant to Section 1.6 or Article VIIIStockholders’ Agent hereunder and under the other Transaction Documents, (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements engaging and compromises of, employing agents and demand arbitration Representatives on behalf of such Stockholders and comply with Orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions the Stockholders’ Agent in connection with all such matters under any of the resolution Transaction Documents, (vi) entering into agreements (including releases) on behalf of such Stockholders with respect to any of the foregoing, and (vii) taking all actions and incurring all expenses as the Stockholders’ Agent shall reasonably deem necessary or prudent in connection with any of the foregoing; all on such terms and in such manner as he deems appropriate in his sole and absolute discretion. Any such actions taken, exercises of rights, power or authority, and any decision, determination, waiver, amendment or agreement made by the Stockholders’ Agent consistent herewith, shall be absolutely and irrevocably binding on such Stockholder as if such Stockholder personally had taken such action, exercised such rights, power or authority or made such decision, determination, waiver, amendment or agreement in such Stockholder’s individual capacity, and no such Stockholder shall have the right to object, dissent, protest or otherwise contest the same. Any action required to be taken by such Stockholder hereunder or under any of the other Transaction Documents or any such action which a Stockholder, at his or her election, has the right to take hereunder or under any of the other Transaction Documents, shall be taken only and exclusively by the Stockholders’ Agent and no Stockholder acting on his own shall be entitled to take any such action. The Stockholders’ Agent will, in a reasonably prompt manner, provide written notice to each such Stockholder of any dispute relating hereto or action taken by the Stockholders’ Agent pursuant to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder or necessary in the judgment authority delegated under this Section.
(b) The appointment of the Stockholders’ Agent for the accomplishment as such Stockholder’s attorney-in-fact revokes any power of the foregoing and attorney heretofore granted that authorized any other Person or Persons to represent such Stockholder with regard to any or all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company Stockholders, (vii) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders (other than with respect to the issuance of the Merger Consideration less the Escrow Amount) in accordance with the terms hereof and in the manner provided herein, and (ix) take all actions necessary or appropriate in the judgment Transaction Documents. The appointment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Acquirer, Merger Sub and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the appointment of Shareholder Representative Services LLC as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact pursuant hereto is coupled with an interest and is irrevocable.
(c) The Stockholders’ Agent hereby accepts the foregoing appointment and agrees to serve in such capacity, subject to the provisions hereof, for the period of each Company Stockholder time from and as having after the duties, power and authority provided date hereof without compensation except for in this Section 9.1. The Company the reimbursement from such Stockholders shall be bound by all actions taken and documents executed of reasonable out-of-pocket expenses incurred by the Stockholders’ Agent in his capacity as such. Each such Stockholder hereby waives all actual or potential conflicts of interest arising out of the Stockholders’ Agent’s activities or authority as Stockholders’ Agent and his relationships with the Company or the Buyer (whether before or after the Closing), whether as an employee, consultant, agent, director, officer, stockholder or other Representative.
(d) Such Stockholders will severally indemnify and hold harmless the Stockholders’ Agent from and against any and all Losses arising out of actions taken or omitted to be taken pursuant to the provisions of this Section 6.8 and such other provisions of this Agreement as may be applicable (except in the case of the individual bad faith or willful misconduct of the Stockholders’ Agent), including the reasonable fees of attorneys, accountants and other advisors and all costs and expenses of investigation and defense of claims. The several liability of each such Stockholder under this Section 6.8(d) will equal the amount of such Losses multiplied by a fraction, the numerator of which shall be the aggregate Purchase Price to be received by such Stockholder as set forth in Section 1.2(b) of the Company Disclosure Schedule, and the denominator of which shall be the aggregate Purchase Price to be received by all of the Stockholders (other than the Stockholders’ Agent) as set forth in Section 1.2(b) of the Company Disclosure Schedule.
(e) Notwithstanding anything to the contrary contained in this Agreement, the Stockholders’ Agent shall have no liabilities, duties or responsibilities to the Stockholders except those expressly set forth herein or in any of the other Transaction Documents, and Acquirer and Merger Sub no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any such Stockholder shall be entitled to rely exclusively on any action or decision of otherwise exist against the Stockholders’ Agent. The Stockholders’ Agent shall not, by virtue of acting as Stockholders’ Agent or any of the actions taken in such capacity, be deemed to have assumed any liability or become responsible for any obligation of any such Stockholder to any Person.
(f) The Stockholders’ Agent may resign upon written notice to the Stockholders. In the event that the Person serving named in Section 6.8(a) is unable or unwilling to serve in such capacity under this Section 6.8 at any time, Xxxx Xxxxxx is hereby designated to serve as agent, attorney-in-fact and representative of each such Stockholder under this Section 6.8 in the place of the Person who is unable or unwilling to so serve. Such successor agent, attorney-in-fact and representative shall thereupon succeed to and become vested with all the rights, powers, privileges and duties under this Section 6.8 of the Person unable or unwilling to so serve. After any Person’s resignation or inability to serve under this Section 6.8, the provisions of this Section 6.8 shall continue to inure to his benefit as to any actions taken or omitted to be taken by him pursuant to the authority granted in this Section 6.8.
(g) Each of the Buyer and the Company (i) will be fully protected in relying upon and will be entitled to rely upon, and will have no liability to such Stockholders with respect to, agreements, actions, decisions and determinations of the Stockholders’ Agent may in connection with this Agreement or any of the Transaction Documents, and (ii) will be removed entitled to assume that all agreements, actions, decisions and determinations of the Stockholders’ Agent in connection with this Agreement or replaced from time any of the Transaction Documents are fully authorized by and binding upon all of such Stockholders.
(h) The Stockholders’ Agent shall not be liable to timeany of the Stockholders or any of their respective heirs, successors, assigns, personal representatives or if such Person resigns from his, her Affiliates for any decisions made or its position as actions taken or omitted to be taken by the Stockholders’ Agent, then a successor may be appointed, by the holders of a majority in interest of the aggregate amount of cash then held except in the Escrow Account (or, in the event that there is no cash then held in the Escrow Account by the Company Stockholders collectively having a Pro Rata Share greater than 50%) upon not less than 30 days’ prior written notice to Acquirer. No bond shall be required case of the Stockholders’ Agent.
(b) The Stockholders’ Agent will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence bad faith or willful misconduct. The Stockholders’ Agent shall not be liable for any action or omission pursuant may consult with legal counsel of his own choice with respect to the advice of counsel. The Company Stockholders shall indemnify the Stockholders’ Agent against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as all such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse the Company Stockholders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Stockholders’ Agent from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; provided, that while the Stockholders’ Agent may be paid from the aforementioned sources of funds, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Stockholders’ Agent be required to advance its own funds on behalf of the Company Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Agent hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Agent or the termination of this Agreementmatters.
(c) Upon the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing.
(d) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders and shall be final, binding and conclusive upon each such Company Stockholder; and each Acquirer Indemnified Party shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company Stockholder. Acquirer, Merger Sub and the Surviving Corporation are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent.
Appears in 1 contract
Stockholders’ Agent. (a) By At the adoption of the MergerClosing, and by receiving the benefits hereof, including any consideration payable hereunder, each Company Stockholder Fortis Advisors LLC shall be deemed to have approved Shareholder Representative Services LLC constituted and appointed as the Stockholders’ Agent as Agent. For purposes of Closing for all purposes in connection with this Agreement and any related agreements. The Agreement, the term “Stockholders’ Agent Agent” shall be mean the agent, representative and attorney-in-fact agent for and on behalf of the Company Stockholders to: (i) execute, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, (ii) following Closing, give and receive notices, instructions notices and communications permitted to or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and from Acquiror (on behalf of itself of any Company Stockholder, to or from Acquirer other Indemnified Person) relating to this Agreement or any of the Transactions transactions and any other matters contemplated by this Agreement hereby or by such other agreement, document or instrument thereby (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder such shareholders individually); (ii) authorize Acquiror to effect the forfeiture of Escrow Shares in satisfaction of claims asserted by Acquiror (on behalf of itself or any other Indemnified Person, (iii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (iv) review, negotiate and agree to and authorize Acquirer to reclaim an amount of cash from the Escrow Account pursuant to the terms of Section 1.6 or Article VIII hereof (including by not objecting to such claims), ; (iviii) object to such claims pursuant to Section 1.6 or Article VIII, 9.6(b); (viv) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, into settlements and compromises of, and demand arbitration and comply with Orders orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, ; (viv) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company Stockholders, (vii) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders (other than with respect to the issuance of the Merger Consideration less the Escrow Amount) in accordance with the terms hereof and in the manner provided herein, Agreement; and (ixvi) take all actions necessary or appropriate in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Acquirer, Merger Sub and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the appointment of Shareholder Representative Services LLC as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact of each Company Stockholder and as having the duties, power and authority provided for in this Section 9.1. The Company Stockholders shall be bound by all actions taken and documents executed by the Stockholders’ Agent under this Agreement, and Acquirer and Merger Sub shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. The Person serving as the Stockholders’ Agent may be removed or replaced from time to time, or if such Person resigns from his, her or its position as time by a vote of the Stockholders’ Agent, Person’s then a successor may be appointed, by the holders of holding a majority in interest of the aggregate amount of cash then held in the Escrow Account (or, in the event that there is no cash then held in the Escrow Account by the Company Stockholders collectively having a Pro Rata Share greater than 50%) upon not less than 30 days’ prior written notice Acquiror Common Stock delivered pursuant to Acquirerthis Agreement. No bond shall be required of the Stockholders’ Agent.
(b) The Stockholders’ Agent will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Stockholders’ Agent shall not be liable for any action or omission pursuant to the advice of counsel. The Certain Company Stockholders shall indemnify have entered into a letter agreement with the Stockholders’ Agent against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse the Company Stockholders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Stockholders’ Agent from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; provided, that while the Stockholders’ Agent may be paid from the aforementioned sources of funds, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Stockholders’ Agent be required to advance its own funds on behalf of the Company Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided provide direction to the Stockholders’ Agent hereunder. The foregoing indemnities will survive in connection with the Closingperformance of its services under this Agreement (such Company Stockholders, the resignation or removal of the Stockholders’ Agent or the termination of this Agreement.
(c) Upon the Closingincluded their individual representatives, the Company will wire US$ 200,000 (hereinafter referred to as the “Expense FundAdvisory Group”) to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing).
(d) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders and shall be final, binding and conclusive upon each such Company Stockholder; and each Acquirer Indemnified Party shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company Stockholder. Acquirer, Merger Sub and the Surviving Corporation are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Twitter, Inc.)
Stockholders’ Agent. (a) By At the adoption of the MergerClosing, and by receiving the benefits hereof, including any consideration payable hereunder, each Company Stockholder Fortis Advisors LLC shall be deemed to have approved Shareholder Representative Services LLC constituted and appointed as the Stockholders’ Agent as of Closing for all purposes in connection with this Agreement and any related agreementsAgent. The Stockholders’ Agent shall be the agent, representative exclusive agent and attorney-in-fact for and on behalf of the Company Stockholders Converting Holders to: (i) execute, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, (ii) following Closing, give and receive notices, instructions and communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company StockholderConverting Holder, to or from Acquirer Castlight (on behalf of itself or any other Indemnified Person) relating to this Agreement Agreement, the Earnout or any of the Transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder Converting Holder individually), (iii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (iv) review, negotiate and agree to and authorize Acquirer Castlight to reclaim an amount cancel a number of cash from shares of Castlight Class B Common Stock held in the Escrow Account pursuant Fund or subject to the terms Set-Off Right in satisfaction of Section 1.6 claims asserted by Castlight (on behalf of itself or Article VIII hereof (any other Indemnified Person, including by not objecting to such claims)) pursuant to this Article IX, (iv) make and object to such claims pursuant to Section 1.6 or Article VIII9.6 and Section 9.10, (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder Converting Holder or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company StockholdersConverting Holders, (vii) following Closing, consent or agree to any amendment to this Agreement Agreement, including Annex A, or to waive any terms and conditions of this Agreement Agreement, including Annex A, providing rights or benefits to the Company Stockholders (other than with respect to the issuance of the Merger Consideration less the Escrow Amount) Converting Holders in accordance with the terms hereof and in the manner provided herein, herein and (ixviii) take all actions necessary or appropriate in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. AcquirerNotwithstanding the foregoing, the Stockholders’ Agent shall have no obligation to act on behalf of the Converting Holders, except as expressly provided herein, in the Escrow Agreement and in the Stockholders’ Agent Engagement Agreement, and for purposes of clarity, there are no obligations of the Stockholders’ Agent in any ancillary agreement, schedule, exhibit or the Jiff Disclosure Letter. Castlight, Merger Sub and their respective Affiliates (including after the Effective Time, the Surviving CorporationEntity) shall be entitled to rely on the appointment of Shareholder Representative Services Fortis Advisors LLC as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact of each Company Stockholder Converting Holder and as has having the duties, power and authority provided for in this Section 9.19.7. The Company Stockholders Converting Holders and their successors shall be bound by all actions taken and documents executed by the Stockholders’ Agent in connection with this Article IX, and all defenses which may be available to any Converting Holder to contest, negate or disaffirm the action of the Stockholders’ Agent taken in good faith under this Agreement, the Escrow Agreement or the Stockholders’ Agent Engagement Agreement are waived. Castlight and Acquirer and Merger Sub other Indemnified Persons shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. The Person serving as the Stockholders’ Agent may be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then a successor may be appointed, by the holders of a majority in interest of the aggregate amount number of cash shares of Castlight Class B Common Stock then held in the Escrow Account (or, in the event that there is no cash then held in the Escrow Account by the Company Stockholders collectively having a Pro Rata Share greater than 50%) Fund upon not less than 30 days’ prior written notice to AcquirerCastlight. No bond shall be required of the Stockholders’ Agent. The powers, immunities and rights to indemnification granted to the Stockholders’ Agent Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Converting Holder and shall be binding on any successor thereto and (ii) shall survive the delivery of an assignment by any Converting Holder of the whole or any fraction of his, her or its interest in the Escrow Fund or the Earnout Payments.
(b) The Certain Converting Holders have entered into an engagement agreement (the “Stockholders’ Agent will incur no liability Engagement Agreement”) with the Stockholders’ Agent to provide direction to the Stockholders’ Agent in connection with its services under this Agreement, the Escrow Agreement and the Stockholders’ Agent Engagement Agreement (such Converting Holders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Stockholders’ Agent nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Stockholders’ Agent Group”) shall be liable to any Converting Holder for any act done or omitted hereunder as the Stockholders’ Agent while acting in good faith (and any act done or omitted pursuant to this Agreement the advice of counsel shall be conclusive evidence of such good faith) and any related agreements except to the extent resulting from its without gross negligence or willful misconduct. The Stockholders’ Agent Converting Holders shall severally but not be liable for any action or omission pursuant to the advice of counsel. The Company Stockholders shall jointly indemnify the Stockholders’ Agent Group and defend and hold it harmless against any reasonableloss, documentedLiability, claim, damage, fee, fine, judgment, amount paid in settlement or expense incurred without gross negligence, willful misconduct or bad faith on the part of the Stockholders’ Agent and arising out of, resulting from or in connection with the acceptance or administration of its duties hereunder, including all reasonable out-of-pocket losses, liabilities costs and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Stockholderslegal fees and other legal and skilled professionals’ Agent, the Stockholders’ Agent will reimburse the Company Stockholders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses may be recovered costs reasonably incurred by the Stockholders’ Agent and in connection with seeking recovery from insurers (i) collectively, the funds in the Expense Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; provided, that while the “Stockholders’ Agent may be paid from the aforementioned sources of funds, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Stockholders’ Agent be required to advance its own funds on behalf of the Company Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Agent hereunderExpenses”). The foregoing indemnities will immunities and rights to indemnification shall survive the Closing, the resignation or removal of the Stockholders’ Agent or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. If not paid directly to the Stockholders’ Agent by the Converting Holders, such Stockholders’ Agent Expenses may be recovered by the Stockholders’ Agent first, from the Expense Fund and second, from the portion of the Escrow Fund and/or Earnout shares otherwise distributable to the Converting Holders (and not distributed or distributable to an Indemnified Person or subject to a pending indemnification claim of an Indemnified Person) on or after the Escrow Release Date or Earnout distribution date, as applicable, pursuant to the terms hereof, at the time of distribution, and such recovery will be made from the Converting Holders according to their respective Pro Rata Shares of such Stockholders’ Agent Expenses. The Converting Holders acknowledge that the Stockholders’ Agent shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Stockholders’ Agent shall not be required to take any action unless the Stockholders’ Agent has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Stockholders’ Agent against the costs, expenses and liabilities which may be incurred by the Stockholders’ Agent in performing such actions.
(c) Upon the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds shall be entitled to: (i) rely upon the Spreadsheet, (ii) rely upon any signature believed by it to be genuine and will not voluntarily make these funds available (iii) reasonably assume that a signatory has proper authorization to its creditors in the event of bankruptcy. As soon as practicable following the completion sign on behalf of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholdersapplicable Converting Holder or other party. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing.
(d) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a9.7(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders Converting Holders and shall be final, binding and conclusive upon each such Company StockholderConverting Holder; and each Acquirer Indemnified Party Person shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company StockholderConverting Holder. AcquirerCastlight, Merger Sub Sub, the Surviving Entity and the Surviving Corporation Indemnified Persons are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent.
(d) The Stockholders’ Agent may retain a DVD copy of the data room contents and refer to such DVD in the course of performing its duties hereunder, subject to execution by the Stockholders’ Agent of Castlight’s standard non-disclosure agreement (or prior execution by the Stockholders’ Agent of a reasonably equivalent non-disclosure agreement in favor of Jiff that will be enforceable by the Surviving Entity).
(e) Upon the Closing, Castlight shall deliver to the Stockholders’ Agent a certificate or book-entry entitlement representing 50,000 shares of Castlight Class B Common Stock (the “Expense Fund Amount”). The Expense Fund Amount shall be held by the Stockholders’ Agent in a segregated client account and shall be used (i) for the purposes of paying directly or reimbursing the Stockholders’ Agent for any Stockholders’ Agent Expenses incurred pursuant to this Agreement, the Escrow Agreement or any Stockholders’ Agent Engagement Agreement or (ii) as otherwise determined by the Advisory Group (the “Expense Fund”). The Stockholders’ Agent is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholders’ Agent is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund, and has no tax reporting or income distribution obligations. The Converting Holders will not receive any interest on the Expense Fund and assign to the Stockholders’ Agent any such interest. Subject to Advisory Group approval, the Stockholders’ Agent may contribute funds to the Expense Fund from any consideration otherwise distributable to the Converting Holders. As soon as reasonably determined by the Stockholders’ Agent that the Expense Fund is no longer required to be withheld, the Stockholders’ Agent shall distribute the remaining Expense Fund (if any) to the Exchange Agent for further distribution to the Converting Holders.
Appears in 1 contract
Stockholders’ Agent. (a) By At the adoption of the MergerClosing, and by receiving virtue of the benefits hereofapproval of the Merger and this Agreement by the Converting Holders and without any further action of any of the Converting Holders or the Company, including any consideration payable hereunder, each Company Stockholder Fortis Advisors LLC shall be deemed to have approved Shareholder Representative Services LLC constituted and appointed as the Stockholders’ Agent as of Closing for all purposes in connection with this Agreement and any related agreementsAgent. The Stockholders’ Agent shall be the agent, representative exclusive agent and attorney-in-fact for and on behalf of the Company Stockholders Converting Holders to: (i) execute, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, (ii) following Closing, give and receive notices, instructions and communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company StockholderConverting Holder, to or from Acquirer (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the Transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder Converting Holder individually), (iii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (iv) review, negotiate and agree to and authorize Acquirer to reclaim an amount of cash from the Escrow Account pursuant to the terms Fund in satisfaction of Section 1.6 claims asserted by Acquirer (on behalf of itself or Article VIII hereof (any other Indemnified Person, including by not objecting to such claims)) pursuant to this Article VIII, (iv) object to such claims pursuant to Section 1.6 or Article VIII8.6, (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder Converting Holder or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company StockholdersConverting Holders, (vii) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders Converting Holders (other than with respect to the issuance payment of the Merger Consideration less the Escrow AmountClosing Payment) in accordance with the terms hereof and in the manner provided herein, and (ixviii) take all actions necessary or appropriate in the judgment of the Stockholders’ Agent for relating to the accomplishment subject matter of this Agreement, the foregoingEscrow Agreement and the Stockholders’ Agent Engagement Agreement, in each case without having to seek or obtain the consent of any Person under any circumstance. Notwithstanding the foregoing, the Stockholders’ Agent shall have no obligation to act on behalf of the Converting Holders, except as expressly provided herein, in the Escrow Agreement and in the Stockholders’ Agent Engagement Agreement, and for purposes of clarity, there are no obligations of the Stockholders’ Agent in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. Acquirer, Merger Sub and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the appointment of Shareholder Representative Services Fortis Advisors LLC as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact and exclusive agent of each Company Stockholder Converting Holder and as has having the duties, power and authority provided for in this Section 9.18.7. The Company Stockholders powers, immunities and rights to indemnification granted to the Stockholders’ Agent Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Converting Holder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Converting Holder of the whole or any fraction of his, her or its interest in the Escrow Fund. The Converting Holders shall be bound by all actions taken and documents executed by the Stockholders’ Agent under in connection with this AgreementArticle VIII, and Acquirer and Merger Sub other Indemnified Persons shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. The Person serving as the Stockholders’ Agent may be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then a successor may be appointed, by the holders of a majority in interest of the aggregate amount of cash then held in the Escrow Account Fund (or, in the event that there is no cash then held in the Escrow Account Fund by the Company Stockholders Converting Holders collectively having a an Pro Rata Share greater than 50%) upon not less than 30 days’ prior written notice to Acquirer. The immunities and rights to indemnification shall survive the resignation or removal of the Stockholders’ Agent or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required of the Stockholders’ Agent.
(b) The Certain Converting Holders have entered into an engagement agreement (the “Stockholders’ Agent will incur no liability Engagement Agreement”) with the Stockholders’ Agent to provide direction to the Stockholders’ Agent in connection with its services under this Agreement, the Escrow Agreement and the Stockholders’ Agent Engagement Agreement (such Converting Holders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Stockholders’ Agent nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Stockholders’ Agent Group”), shall be liable to any Converting Holder for any act done or omitted hereunder, under the Escrow Agreement or under the Stockholders’ Agent Engagement Agreement as the Stockholders’ Agent while acting in good faith (and any act done or omitted pursuant to this Agreement the advice of counsel shall be conclusive evidence of such good faith) and any related agreements except to the extent resulting from its without gross negligence or willful misconduct. The Stockholders’ Agent Converting Holders shall severally but not be liable for any action or omission pursuant to the advice of counsel. The Company Stockholders shall jointly indemnify and defend the Stockholders’ Agent Group and hold it harmless against any reasonableloss, documentedLiability, claim, damage, fee, cost, judgment, fine, amount paid in settlement or expense incurred without gross negligence, willful misconduct or bad faith on the part of the Stockholders’ Agent and arising out of, resulting from or in connection with the acceptance or administration of its duties hereunder, under the Escrow Agreement or under the Stockholders’ Agent Engagement Agreement, including all reasonable out-of-pocket losses, liabilities costs and expenses (“Representative Losses”) arising out and legal fees and other legal costs, costs of or skilled professionals and in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused seeking recovery from insurers reasonably incurred by the bad faith, gross negligence or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse (collectively, the Company Stockholders the amount of such indemnified Representative Loss “Stockholders’ Agent Expenses”). If not paid directly to the extent attributable to Stockholders’ Agent by the Converting Holders, such bad faith, gross negligence or willful misconduct. Representative Losses Stockholders’ Agent Expenses may be recovered by the Stockholders’ Agent Agent, first, from (i) the funds in the Expense Fund, and second, from the portion of the Escrow Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; providedConverting Holders (and not distributed or distributable to an Indemnified Person or subject to a pending indemnification claim of an Indemnified Person) on or after the Escrow Release Date pursuant to the terms hereof, at the time of distribution, and such recovery will be made from the Converting Holders according to their respective Pro Rata Shares of such losses, Liabilities or expenses. The Converting Holders acknowledge that while the Stockholders’ Agent may shall not be paid from required to expend or risk its own funds or otherwise incur any financial liability in the aforementioned sources exercise or performance of fundsany of its powers, rights, duties or privileges or pursuant to this does not relieve Agreement, the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will Escrow Agreement, the Stockholders’ Agent be required to advance its own funds on behalf of Engagement Agreement or the Company Stockholders transactions contemplated hereby or otherwisethereby. Notwithstanding anything in this Agreement to the contraryFurthermore, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Agent hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of shall not be required to take any action unless the Stockholders’ Agent has been provided with funds, security or the termination of this Agreement.
(c) Upon the Closingindemnities which, the Company will wire US$ 200,000 (the “Expense Fund”) in its determination, are sufficient to protect the Stockholders’ AgentAgent against the costs, expenses and liabilities which will may be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any performing such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closingactions.
(dc) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a) this Agreement, the Escrow Agreement or the Stockholders’ Agent Engagement Agreement shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders Converting Holders and shall be final, binding and conclusive upon each such Company Stockholder; Converting Holder and their successors as if expressly confirmed and ratified in writing by each Acquirer such Converting Holder, and all defenses which may be available to any Converting Holder to contest, negate or disaffirm the action of the Stockholders’ Agent taken in good faith under this Agreement, the Escrow Agreement or the Stockholders’ Agent Engagement Agreement are waived. Each Indemnified Party Person shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company StockholderConverting Holder. Acquirer, Merger Sub and Sub, the Surviving Corporation and the Indemnified Persons are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent. The Stockholders’ Agent shall be entitled to: (i) rely upon the Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Converting Holder or other party.
(d) At or promptly following the Effective Time, the Acquirer will wire to the Stockholders’ Agent $500,000 (the “Expense Fund”), which will be used (i) for the purposes of paying directly, or reimbursing the Stockholders’ Agent for, any Stockholders’ Agent Expenses incurred pursuant to this Agreement and the Escrow Agreement or (ii) as otherwise determined by the Advisory Group. The Stockholders’ Agent is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholders’ Agent is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund, and has no Tax reporting or income distribution obligations. The Converting Holders will not receive any interest on the Expense Fund and assign to the Stockholders’ Agent any such interest. Subject to Advisory Group approval, the Stockholders’ Agent may contribute funds to the Expense Fund from any consideration otherwise distributable to the Converting Holders. In any event no later than contemporaneously with or as soon as practicable following the earlier of the Escrow Release Date and the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver the balance of the Expense Fund (the “Expense Fund Surplus”) to the Paying Agent or the Surviving Corporation, as applicable, for further distribution to the Converting Holders in accordance with each such Converting Holder’s Pro Rata Share, as applied to such portion of the Expense Fund. For Tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Converting Holders at the time of Closing.
Appears in 1 contract
Stockholders’ Agent. (a) By At the adoption of the MergerClosing, and by receiving the benefits hereofFront Range Ventures, including any consideration payable hereunder, each Company Stockholder LLC shall be deemed to have approved Shareholder Representative Services LLC constituted and appointed as the Stockholders’ Agent as of Closing for all purposes in connection with this Agreement and any related agreementsAgent. The Stockholders’ Agent shall be the agent, representative and attorney-in-fact agent for and on behalf of the Company Stockholders Converting Holders to: (i) execute, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the TransactionsTransaction Documents, (ii) following Closing, give and receive notices, instructions and communications permitted or required under this Agreement, Agreement or any other agreement, document or instrument entered into or executed in connection herewithand the Transaction Documents, for and on behalf of any Company StockholderConverting Holder, to or from Acquirer (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the Transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument Transaction Documents (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder Converting Holder individually), (iii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (iv) review, negotiate and agree to and authorize Acquirer to reclaim an amount cancel a number of cash from shares of Acquirer Common Stock held in the Escrow Account pursuant to the terms Holdback Fund in satisfaction of Section 1.6 claims asserted by Acquirer (on behalf of itself or Article VIII hereof (any other Indemnified Person, including by not objecting to such claims)) pursuant to Article VI, (iv) object to such claims pursuant to Section 1.6 or Article VIII6.6, (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder Converting Holder or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company StockholdersConverting Holders, (vii) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders Converting Holders (other than with respect to the payment and issuance of the Total Merger Consideration less the Escrow Holdback Amount) in accordance with the terms hereof and in the manner provided herein, (vii) disburse to the Converting Holders their share of any cash amounts payable under this Agreement, including any closing cash consideration, Tax refund, and (ixviii) take all actions necessary or appropriate in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Acquirer, Merger Xxxxxx Sub and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the appointment of Shareholder Representative Services Front Range Ventures, LLC as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact of each Company Stockholder Converting Holder and as has having the duties, power and authority provided for in this Section 9.18.13. The Company Stockholders Converting Holders shall be bound by all actions taken and documents executed by the Stockholders’ Agent under in connection with this Agreement, and Acquirer and Merger Sub other Indemnified Persons shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. The Person serving as the Stockholders’ Agent may be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then a successor may be appointed, by the holders of a majority in interest of the aggregate amount number of cash shares of Acquirer Common Stock then held in the Escrow Account Holdback Fund (or, in the event that there is are no cash shares then held in the Escrow Account Holdback Fund, by the Company Stockholders Converting Holders collectively having a Pro Rata Share greater than 50%) upon not less than 30 days’ prior written notice to Acquirer. No bond shall be required of the Stockholders’ Agent.
(b) The Stockholders’ Agent will incur no liability shall not be liable to any Converting Holder for any act done or omitted hereunder as the Stockholders’ Agent while acting in connection with its services good faith (and any act done or omitted pursuant to this Agreement the advice of counsel shall be conclusive evidence of such good faith) and any related agreements except to the extent resulting from its without gross negligence or willful misconduct. The Stockholders’ Agent shall be provided $25,000 for its services and as a retainer to cover any expenses (“Stockholders’ Agent Fee”); provided that the Converting Holders shall severally but not be liable for any action or omission pursuant to the advice of counsel. The Company Stockholders shall jointly indemnify the Stockholders’ Agent and hold it harmless against any reasonableloss, documentedLiability or expense incurred without gross negligence or willful misconduct on the part of the Stockholders’ Agent and arising out of, and resulting from or in connection with the acceptance or administration of its duties hereunder, including all reasonable out-of-pocket losses, liabilities costs and expenses (“Representative Losses”) arising out of or in connection with this Agreement and legal fees and other legal costs reasonably incurred by the Stockholders’ Agent, and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, expenses that in exceed the event that Stockholders’ Agent Fee. The Stockholders’ Agent Fee shall be considered earned on the Holdback Release Date and any such Representative Loss is finally adjudicated amount not disbursed to have been caused by cover expenses shall be the bad faith, gross negligence or willful misconduct property of the Stockholders’ Agent, . If the Stockholders’ Agent will reimburse costs are not paid directly to the Company Stockholders Stockholders’ Agent by the Converting Holders, then such losses, Liabilities or expenses, including the entirety of the expended amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses Stockholders’ Agent Fee may be recovered by the Stockholders’ Agent from (i) the funds in portion of the Expense Holdback Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; providedConverting Holders (and not distributed or distributable to an Indemnified Person or subject to a pending claim of an Indemnified Person) on or after the Holdback Release Date pursuant to the terms hereof, that while at the Stockholders’ Agent may time of distribution, and such recovery will be paid made from the aforementioned sources Converting Holders according to their respective Pro Rata Shares of fundssuch losses, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered Liabilities or incurred. In no event will the Stockholders’ Agent be required to advance its own funds on behalf of the Company Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Agent hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Agent or the termination of this Agreementexpenses.
(c) Upon the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing.
(d) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a8.13(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders Converting Holders and shall be final, binding and conclusive upon each such Company StockholderConverting Holder; and each Acquirer Indemnified Party shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company StockholderConverting Holder. Acquirer, Merger Sub and Sub, the Surviving Corporation and the Indemnified Persons are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent.
Appears in 1 contract
Stockholders’ Agent. (a) By At the adoption of the MergerClosing, and by receiving the benefits hereof, including any consideration payable hereunder, each Company Stockholder Xxxx Xxxxxxxxx shall be deemed to have approved Shareholder Representative Services LLC constituted and appointed as the Stockholders’ Agent as Agent. For purposes of Closing for all purposes in connection with this Agreement and any related agreements. The Agreement, the term “Stockholders’ Agent Agent” shall be mean the agent, representative and attorney-in-fact agent for and on behalf of the Company Stockholders Effective Time Holders to: (i) execute, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, (ii) following Closing, give and receive notices, instructions notices and communications permitted to or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and from Acquiror (on behalf of itself of any Company Stockholder, to or from Acquirer other Indemnified Person) relating to this Agreement or any of the Transactions transactions and any other matters contemplated by this Agreement hereby or by such other agreement, document or instrument thereby (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder such stockholders individually), ; (iiiii) pursuant authorize deliveries to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation Acquiror of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (iv) review, negotiate and agree to and authorize Acquirer to reclaim an amount of cash assets from the Escrow Account pursuant to the terms Fund in satisfaction of Section 1.6 claims asserted by Acquiror (on behalf of itself or Article VIII hereof (any other Indemnified Person, including by not objecting to such claims), ; (iviii) object to such claims pursuant to Section 1.6 or Article VIII, 8.5; (viv) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, defend settlements and compromises of, and demand arbitration and comply with Orders orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, ; (viv) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company Stockholders, (vii) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders (other than with respect to the issuance of the Merger Consideration less the Escrow Amount) in accordance with the terms hereof and in the manner provided hereinAgreement, and (ixvi) take all actions necessary or appropriate in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Acquirer, Merger Sub and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the appointment of Shareholder Representative Services LLC as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact of each Company Stockholder and as having the duties, power and authority provided for in this Section 9.1. The Company Stockholders shall be bound by all actions taken and documents executed by the Stockholders’ Agent under this Agreement, and Acquirer and Merger Sub shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. The Person serving as the Stockholders’ Agent may be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then a successor may be appointed, time by the holders of a majority in interest of the aggregate amount of cash assets then held on deposit in the Escrow Account (or, in the event that there is no cash then held in the Escrow Account by the Company Stockholders collectively having a Pro Rata Share greater than 50%) Fund upon not less than 30 ten days’ prior written notice to AcquirerAcquiror. No bond shall be required of the Stockholders’ Agent.
(b) The Stockholders’ Agent will incur no liability in connection with its services pursuant to this Agreement , and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Stockholders’ Agent shall not be liable receive no compensation for any action or omission pursuant to the advice of counsel. The Company Stockholders shall indemnify the Stockholders’ Agent against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse the Company Stockholders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Stockholders’ Agent from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; provided, that while the Stockholders’ Agent may be paid from the aforementioned sources of funds, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Stockholders’ Agent be required to advance its own funds on behalf of the Company Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Agent hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Agent or the termination of this Agreementhis services.
(c) Upon the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing.
(d) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders and shall be final, binding and conclusive upon each such Company Stockholder; and each Acquirer Indemnified Party shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company Stockholder. Acquirer, Merger Sub and the Surviving Corporation are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Concur Technologies Inc)
Stockholders’ Agent. (a) By At the adoption of the MergerClosing, and by receiving the benefits hereof, including any consideration payable hereunder, each Company Stockholder Xxx Xxxxxxxx shall be deemed to have approved Shareholder Representative Services LLC constituted and appointed as the Stockholders’ Agent as Agent. For purposes of Closing for all purposes in connection with this Agreement and any related agreements. The Agreement, the term “Stockholders’ Agent Agent” shall be mean the agent, representative and attorney-in-fact agent for and on behalf of the Company Stockholders Converting Holders to: (i) execute, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, transactions contemplated hereby; (ii) following Closing, give and receive notices, instructions instructions, and communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company StockholderConverting Holder, to or from Acquirer (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the Transactions transactions and any other matters contemplated by this Agreement hereby or by such other agreement, document or instrument thereby (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder Converting Holder individually), ; (iii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (ivii) review, negotiate and agree to and authorize claims asserted by Acquirer to reclaim an amount (on behalf of cash from the Escrow Account pursuant to the terms of Section 1.6 itself or Article VIII hereof (any other Indemnified Person, including by not objecting to such claims)) pursuant to this ARTICLE 8 and authorize Acquirer to Setoff an amount of cash from the Deferred Payments in satisfaction of claims asserted by Acquirer (on behalf of itself or any other Indemnified Person, including by not objecting to such claims) pursuant to this ARTICLE 8; (iviii) object to such claims pursuant to Section 1.6 or Article VIII, 8.3; (viv) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions transactions contemplated hereby by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder Converting Holder or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, ; (viv) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company Stockholders, Converting Holders; (viivi) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders (other than with respect to the issuance of the Merger Consideration less the Escrow Amount) Converting Holders in accordance with the terms hereof and in the manner provided herein, ; and (ixvii) take all actions necessary or appropriate in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Acquirer, Merger Sub and their respective Affiliates (including without limitation, after the Effective Time, the Surviving Corporation) shall be entitled to rely on the appointment of Shareholder Representative Services LLC Xxx Xxxxxxxx as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact of each Company Stockholder Converting Holder and as has having the duties, power and authority provided for in this Section 9.18.6. The Company Stockholders Converting Holders shall be bound by all actions taken and documents executed by the Stockholders’ Agent under in connection with this AgreementARTICLE 8, and Acquirer and Merger Sub other Indemnified Persons shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. The Person serving as the Stockholders’ Agent may be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then a successor may be appointed, time by the holders of a majority in interest of the aggregate amount value of cash then held in the Escrow Account (or, in the event that there is no cash then held in the Escrow Account by the Company Stockholders collectively having a Pro Rata Share greater than 50%) Guaranteed Deferred Payments upon not less than 30 days’ prior written notice to Acquirer. No bond shall be required of the Stockholders’ Agent.
(b) The Stockholders’ Agent will incur no liability shall not be liable to any former holder of Company Capital Stock for any act done or omitted hereunder as the Stockholders’ Agent while acting in connection with its services good faith (and any act done or omitted pursuant to this Agreement the advice of counsel shall be conclusive evidence of such good faith) and any related agreements except to the extent resulting from its without gross negligence or willful misconduct. The Stockholders’ Agent shall not be liable for any action or omission pursuant to serve as the advice of counsel. The Company Stockholders Stockholders’ Agent without compensation; provided, that the Converting Holders shall severally indemnify the Stockholders’ Agent and hold him harmless against any reasonableloss, documentedliability or expense incurred without gross negligence, willful misconduct or bad faith on the part of the Stockholders’ Agent and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement the acceptance or administration of his duties hereunder, including all reasonable out-of-pocket costs and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse the Company Stockholders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Stockholders’ Agent from (i) the funds in the Expense Fund expenses and (ii) any legal fees and other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; provided, that while the Stockholders’ Agent may be paid from the aforementioned sources of funds, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Stockholders’ Agent be required to advance its own funds on behalf of the Company Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Agent hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Agent or the termination of this Agreement.
(c) Upon the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses legal costs reasonably incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing.
(dc) After the Closing, any Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a8.6(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders Converting Holders and shall be final, binding and conclusive upon each such Company StockholderConverting Holder; and each Acquirer Indemnified Party Person shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company StockholderConverting Holder. Acquirer, Merger Sub and Sub, the Surviving Corporation and the Indemnified Persons are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent.
Appears in 1 contract
Samples: Merger Agreement
Stockholders’ Agent. (a) By At the adoption of the MergerClosing, and by receiving the benefits hereof, including any consideration payable hereunder, each Company Stockholder shall be deemed to have approved Shareholder Representative Services LLC shall be constituted and appointed as the Stockholders’ Agent as of Closing for all purposes in connection with this Agreement and any related agreementsAgent. The Stockholders’ Agent shall be the agent, representative and attorney-in-fact agent for and on behalf of the Company Stockholders Converting Holders to: (i) execute, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, (ii) following after the Closing, give and receive notices, instructions and communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company StockholderConverting Holder, to or from Acquirer (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the Transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder Converting Holder individually), (iii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (iv) review, negotiate and agree to and authorize Acquirer to reclaim an amount cancel a number of cash from shares of Acquirer Common Stock held in the Escrow Account pursuant to the terms Fund in satisfaction of Section 1.6 claims asserted by Acquirer (on behalf of itself or Article VIII hereof (any other Indemnified Person, including by not objecting to such claims)) pursuant to this Article VIII, (iv) object to such claims pursuant to Section 1.6 or Article VIII8.6, (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder Converting Holder or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company StockholdersConverting Holders, (vii) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders Converting Holders (other than with respect to the payment and issuance of the Merger Consideration less the Escrow Amount and the Extended Escrow Amount) in accordance with the terms hereof and in the manner provided herein, herein and (ixviii) take all actions necessary or appropriate in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Acquirer, Merger Sub and their respective Affiliates (including after the Effective Time, the First Step Surviving Corporation) shall be entitled to rely on the appointment of Shareholder Representative Services LLC as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact of each Company Stockholder Converting Holder and as has having the duties, power and authority provided for in this Section 9.18.7. The Company Stockholders Converting Holders shall be bound by all actions taken and documents executed by the Stockholders’ Agent under in connection with this AgreementArticle VIII, and Acquirer and Merger Sub other Indemnified Persons shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. The Person serving as the Stockholders’ Agent may be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then a successor may be appointed, by the holders of a majority in interest of the aggregate amount number of cash shares of Acquirer Common Stock then held in the Escrow Account (or, in the event that there is no cash then held in the Escrow Account by the Company Stockholders collectively having a Pro Rata Share greater than 50%) Fund upon not less than 30 days’ prior written notice to Acquirer. No bond shall be required of the Stockholders’ Agent.
(b) The Stockholders’ Agent will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Stockholders’ Agent shall not be liable for any action or omission pursuant to the advice of counsel. The Company Stockholders shall indemnify the Stockholders’ Agent against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse the Company Stockholders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Stockholders’ Agent from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; provided, that while the Stockholders’ Agent may be paid from the aforementioned sources of funds, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Stockholders’ Agent be required to advance its own funds on behalf of the Company Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Agent hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Agent or the termination of this Agreement.
(c) Upon the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing.
(d) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders and shall be final, binding and conclusive upon each such Company Stockholder; and each Acquirer Indemnified Party shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company Stockholder. Acquirer, Merger Sub and the Surviving Corporation are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent.
Appears in 1 contract
Samples: Merger Agreement (Rocket Fuel Inc.)
Stockholders’ Agent. (a) By At the adoption of the MergerClosing, and by receiving the benefits hereof, including any consideration payable hereunder, each Company Stockholder shall be deemed to have approved Shareholder Representative Services LLC LLC, shall be constituted and appointed as the Stockholders’ Agent as Agent. For purposes of Closing for all purposes in connection with this Agreement and any related agreements. The Agreement, the term “Stockholders’ Agent Agent” shall be mean the agent, representative and attorney-in-fact exclusive agent for and on behalf of the Company Stockholders and Parent Members to: (i) execute, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, transactions contemplated hereby; (ii) following after the Closing, give and receive notices, instructions instructions, and communications permitted or required under this Agreement, Agreement or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company StockholderStockholder and Parent Member, to or from Acquirer Acquiror (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the Transactions transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument hereby (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder or Parent Member individually), ; (iii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (iv) review, negotiate and agree to and authorize Acquirer deliveries to reclaim an amount Acquiror of cash from the Escrow Account pursuant to the terms Holdback Fund in satisfaction of Section 1.6 claims asserted by Acquiror (on behalf of itself or Article VIII hereof (any other Indemnified Person, including by not objecting to such claims), ) pursuant to this ARTICLE 8; (iv) object to such claims pursuant to Section 1.6 or Article VIII, 8.5; (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions transactions contemplated hereby by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder or Parent Member or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, ; (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company Stockholders, Stockholders and Parent Members; (vii) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders or Parent Members (other than with respect to the issuance payment of the Merger Consideration less the Escrow AmountConsideration) in accordance with the terms hereof and in the manner provided herein, ; and (ixviii) take all actions necessary or appropriate in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. AcquirerAcquiror, Merger Sub Subs and their respective Affiliates (including without limitation, after the Effective Time, the Surviving CorporationEntity) shall be entitled to rely on the appointment of Shareholder Representative Services LLC as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact of each Company Stockholder and as Parent Member and has having the duties, power and authority provided for in this Section 9.18.7. The Company Stockholders and the Parent Members shall be bound by all actions taken and documents executed by the Stockholders’ Agent under in connection with this AgreementARTICLE 8, and Acquirer Acquiror and Merger Sub other Indemnified Persons shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. The Person serving as the Stockholders’ Agent may resign or be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then a successor may be appointed, time by the holders of a majority in interest of the aggregate amount of cash then held in the Escrow Account (or, in the event that there is no cash then held in the Escrow Account by the Company Stockholders collectively having a Pro Rata Share greater than 50%) Holdback Fund upon not less than 30 thirty (30) days’ prior written notice to AcquirerAcquiror. The immunities and rights to indemnification shall survive the resignation or removal of the Stockholders’ Agent and the Closing and/or any termination of this Agreement. No bond shall be required of the Stockholders’ Agent.
(b) The Stockholders’ Agent will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Stockholders’ Agent shall not be liable for any action or omission pursuant to the advice of counsel. The Company Stockholders shall indemnify the Stockholders’ Agent against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse the Company Stockholders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Stockholders’ Agent from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; provided, that while the Stockholders’ Agent may be paid from the aforementioned sources of funds, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Stockholders’ Agent be required to advance its own funds on behalf of the Company Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Agent hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Agent or the termination of this Agreement.
(c) Upon the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing.
(d) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders and shall be final, binding and conclusive upon each such Company Stockholder; and each Acquirer Indemnified Party shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company Stockholder. Acquirer, Merger Sub and the Surviving Corporation are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Glu Mobile Inc)
Stockholders’ Agent. (a) By At the adoption of the MergerClosing, and by receiving the benefits hereofFortis Advisors LLC, including any consideration payable hereundera Delaware limited liability company, each Company Stockholder shall be deemed to have approved Shareholder Representative Services LLC constituted and appointed as the Stockholders’ Agent as of Closing for all purposes in connection with this Agreement and any related agreementsAgent. The Stockholders’ Agent shall be the agent, representative agent and true and lawful attorney-in-fact for and on behalf of the Company Stockholders Converting Holders to: (i) execute, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, (ii) following Closing, give and receive notices, instructions and communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company StockholderConverting Holder, to or from Acquirer (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the Transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder Converting Holder individually), (iii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (iv) review, negotiate and agree to and authorize Acquirer to reclaim an amount of cash from or shares of Parent Common Stock in the Escrow Account pursuant to the terms Fund in satisfaction of Section 1.6 claims asserted by Acquirer (on behalf of itself or Article VIII hereof (any other Indemnified Person, including by not objecting to such claims)) pursuant to this Article 8, (iv) object to such claims pursuant to Section 1.6 or Article VIII8.6, (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder Converting Holder or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company Stockholders, Converting Holders; (vii) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders Converting Holders (other than with respect to the payment and issuance of the Merger Consideration less the Cash Escrow Amount and the Stock Escrow Amount) in accordance with the terms hereof and in the manner provided herein, herein and (ixviii) take all actions necessary or appropriate in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent, Acquirer, Merger Sub and their respective Affiliates (including after the First Effective Time, the First Step Surviving Corporation, and after the Second Effective Time, the Final Surviving Corporation) shall be entitled to rely on the appointment of Shareholder Representative Services LLC Fortis Advisors LLC, a Delaware limited liability company, as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact of each Company Stockholder Converting Holder and as has having the duties, power and authority provided for in this Section 9.18.7. The Company Stockholders Converting Holders shall be bound by all actions taken and documents executed by the Stockholders’ Agent under in connection with this AgreementArticle 8, and Acquirer and Merger Sub other Indemnified Persons shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. The Person serving as the Stockholders’ Agent may be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then a successor may be appointed, time by the holders of a majority in interest of the aggregate amount value of the cash and shares of Parent Common Stock then held in the Escrow Account Fund (or, in with each share of Parent Common Stock being valued for such purposes at the event that there is no cash then held in the Escrow Account by the Company Stockholders collectively having a Pro Rata Share greater than 50%Specified Price) upon not less than 30 days’ prior written notice to Acquirer. No bond shall be required of the Stockholders’ Agent. Certain Converting Holders may enter into a letter agreement with the Stockholders’ Agent to provide direction to the Stockholders’ Agent in connection with the performance of its services under this Agreement (such Converting Holders, including their individual representatives, hereinafter referred to as the “Advisory Group”).
(b) The Stockholders’ Agent will incur no liability and his agents and representatives or any member of the Advisory Group (collectively, the “Stockholders’ Agent Group”) shall not be liable to any Converting Holder for any act done or omitted hereunder while acting in connection with its services good faith (and any act done or omitted pursuant to this Agreement the advice of counsel shall be conclusive evidence of such good faith) and any related agreements except to the extent resulting from its without gross negligence or willful misconduct. The Stockholders’ Agent Converting Holders shall severally but not be liable for any action or omission pursuant to the advice of counsel. The Company Stockholders shall jointly indemnify the Stockholders’ Agent and its members, managers, directors, officers, agents and employees or any member of the Advisory Group and hold them harmless from and against any reasonable, documented, and out-of-pocket all losses, liabilities claims, damages, liabilities, fees, costs, expenses (including all reasonable out of pocket costs and expenses and legal fees and disbursements and costs and including costs incurred in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, “Representative LossesStockholders’ Agent Expenses”) incurred without gross negligence, willful misconduct or bad faith on the part of the Stockholders’ Agent Group and arising out of of, resulting from or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered the acceptance or incurred; provided, that in the event that any such Representative Loss is finally adjudicated administration of its duties hereunder. If not paid directly to have been caused by the bad faith, gross negligence or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse by the Company Stockholders the amount of Converting Holders, such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses Stockholders’ Agent Expenses may be recovered by the Stockholders’ Agent first, from (i) the funds in the Expense Fund, second from the portion of the Escrow Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; providedConverting Holders (and not distributed or distributable to an Indemnified Person or subject to a pending indemnification claim of an Indemnified Person) after the Escrow Release Date pursuant to the terms hereof, at the time of distribution, and third, directly from the Converting Holders according to their respective Pro Rata Shares. The Converting Holders acknowledge that while no provision of this Agreement, the Escrow Agreement nor any of the transactions contemplated hereby shall require the Stockholders’ Agent may be paid from the aforementioned sources of funds, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered expend or incurred. In no event will the Stockholders’ Agent be required to advance risk its own funds on behalf or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement, the Escrow Agreement or any of the Company Stockholders or otherwisetransactions contemplated hereby. Notwithstanding anything in this Agreement All of the immunities and rights to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided granted to the Stockholders’ Agent hereunder. The foregoing indemnities will Group under this Agreement shall survive the Closing, the resignation or removal of Stockholders’ Agent or any member of the Advisory Group, the Closing and/or any termination of this Agreement and the Escrow Agreement. The powers, immunities and rights to indemnification granted to the Stockholders’ Agent Group hereunder: (i) are is coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the termination respective Converting Holders and shall be binding on any successor thereto and (ii) shall survive the delivery of this Agreementan assignment by any Converting Holders of the whole or any fraction of his, her or its interest in the Escrow Fund.
(c) Upon the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing.
(d) After the Closing, any Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a8.7(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders Converting Holders and shall be final, binding and conclusive upon each such Company StockholderConverting Holder; and each Acquirer Indemnified Party Person shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company StockholderConverting Holder. Parent, Acquirer, Merger Sub Sub, the First Step Surviving Corporation, the Final Surviving Corporation and the Surviving Corporation Indemnified Persons are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent.
(d) Subject to the terms and conditions of this Agreement, upon the Closing, the Company shall wire to the Stockholders’ Agent the Expense Fund pursuant to wire instructions provided to the Company, which shall be held by the Stockholders’ Agent as agent and for the benefit of the Converting Holders in a segregated client account and shall be used for the purposes of paying directly, or reimbursing the Stockholders’ Agent for, any expenses incurred pursuant to this Agreement, the Escrow Agreement or any Stockholders’ Agent engagement agreement. The Stockholders’ Agent will hold these funds separate from its corporate funds. The Converting Holders shall not receive interest or other earnings on amounts in the Expense Fund and the Converting Holders irrevocably transfer and assign to the Stockholders’ Agent any ownership right that the Converting Holders may have in any interest that may accrue on amounts in the Expense Fund. The Converting Holders acknowledge that the Stockholders’ Agent is not providing any investment supervision, recommendations or advice. The Stockholders’ Agent shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. As soon as practicable following the later of (i) the final release of the Escrow Fund or (ii) the final resolution of any claims, the Stockholders’ Agent shall distribute the remaining portion of the Expense Fund (if any) to the Escrow Agent for further distribution to the Converting Holders in accordance with his, her or its Pro Rata Share. The Stockholders’ Agent is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund, and has no tax reporting or income distribution obligations hereunder.
Appears in 1 contract
Samples: Merger Agreement (Facebook Inc)
Stockholders’ Agent. (a) By At the adoption of the MergerClosing, and by receiving the benefits hereofFortis Advisors LLC, including any consideration payable hereundera Delaware limited liability company, each Company Stockholder shall be deemed to have approved Shareholder Representative Services LLC constituted and appointed as the Stockholders’ Agent as of Closing for all purposes in connection with this Agreement and any related agreementsAgent. The Stockholders’ Agent shall be be, by virtue of the agentapproval of the Merger and this Agreement by the Converting Holders and without any further action of any of the Converting Holders or the Company, representative and hereby is, effective as of the Closing, appointed by the Converting Holders as the true and lawful attorney-in-fact and exclusive agent for and on behalf of the Company Stockholders Converting Holders under this Agreement and the Escrow Agreement to: (i) execute, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, (ii) following Closing, give and receive notices, instructions and communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company StockholderConverting Holder, to or from Acquirer (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the Transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder Converting Holder individually), (iii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (iv) review, negotiate and agree to and authorize the release of funds held in the Indemnity Escrow Fund or the Adjustment Escrow Fund in satisfaction of claims asserted by Acquirer to reclaim an amount (on behalf of cash from the Escrow Account pursuant to the terms of Section 1.6 itself or Article VIII hereof (any other Indemnified Person, including by not objecting to such claims)) pursuant to this Article VIII, (iv) object to such claims pursuant to Section 1.6 or Article VIII8.7, (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder Converting Holder or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company StockholdersConverting Holders, (vii) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders Converting Holders (other than with respect to the payment and issuance of the Merger Aggregate Consideration less the Adjustment Escrow AmountFund and the Indemnity Escrow Amount ) in accordance with the terms hereof and in the manner provided herein, herein and (ixviii) take or refrain from taking all actions necessary or appropriate in the sole judgment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Acquirer, Merger Sub and their respective Affiliates (including after Notwithstanding the Effective Timeforegoing, the Surviving Corporation) Stockholders’ Agent shall have no obligation to act on behalf of the Converting Holders, except as expressly provided herein, in the Escrow Agreement and in the Stockholders’ Agent Engagement Agreement, and for purposes of clarity, there are no obligations of the Stockholders’ Agent in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. Acquirer and its Affiliates shall be entitled to rely on the appointment of Shareholder Representative Services Forts Advisors LLC as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact of each Company Stockholder Converting Holder and as has having the duties, power and authority provided for in this Section 9.18.8. The Company Stockholders Converting Holders shall be bound by all actions taken and documents executed by the Stockholders’ Agent under in connection with this AgreementArticle VIII, and Acquirer and Merger Sub other Indemnified Persons shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. The Person serving as the Stockholders’ Agent may be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then a successor may be appointed, by the holders of a majority in interest of the aggregate amount of cash then held in the Adjustment Escrow Account (or, in Fund and the event that there is no cash then held in the Indemnity Escrow Account by the Company Stockholders collectively having a Pro Rata Share greater than 50%) Fund upon not less than 30 days’ prior written notice to Acquirer. The immunities and rights to indemnification shall survive the resignation or removal of the Stockholders’ Agent or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required of the Stockholders’ Agent.
(b) The Certain Converting Holders have entered into an engagement agreement (the “Stockholders’ Agent will incur no liability Engagement Agreement”) with the Stockholders’ Agent to provide direction to the Stockholders’ Agent in connection with its services under this Agreement, the Escrow Agreement and the Stockholders’ Agent Engagement Agreement (such Converting Holders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Stockholders’ Agent nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Stockholders’ Agent Group”) shall be liable to any Converting Holder for any act done or omitted hereunder as the Stockholders’ Agent or otherwise in connection with the acceptance or administration of the Stockholders’ Agent’s responsibilities hereunder, under the Escrow Agreement or under the Stockholders’ Agent Engagement Agreement while acting in good faith (and any act done or omitted pursuant to this Agreement the advice of counsel shall be conclusive evidence of such good faith), unless and any related agreements except only to the extent resulting from its such action or failure to act constitutes gross negligence or willful misconduct. The Stockholders’ Agent Converting Holders shall severally but not be liable for any action or omission pursuant to the advice of counsel. The Company Stockholders shall jointly indemnify and defend the Stockholders’ Agent Group and hold them harmless against any reasonableloss, documentedLiability, claim, damage, or expense incurred without gross negligence, willful misconduct or bad faith on the part of the Stockholders’ Agent and arising out of, resulting from or in connection with the acceptance or administration of its duties hereunder, under the Escrow Agreement or under the Stockholders’ Agent Engagement Agreement, including all reasonable and documented out-of-pocket losses, liabilities costs and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused legal fees and other legal costs reasonably incurred by the bad faith, gross negligence or willful misconduct of the Stockholders’ Agent, . If not paid directly to the Stockholders’ Agent will reimburse by the Company Stockholders the amount of Converting Holders, such indemnified Representative Loss to the extent attributable to such bad faithlosses, gross negligence Liabilities or willful misconduct. Representative Losses expenses may be recovered by the Stockholders’ Agent first, from (i) the funds in the Expense Fund, second, from the portion of the Indemnity Escrow Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; providedConverting Holders (and not distributed or distributable to an Indemnified Person or subject to a pending indemnification claim of an Indemnified Person) on or after the Escrow Release Date pursuant to the terms hereof, at the time of distribution, and third, directly from the Converting Holders, and such recovery will be made from the Converting Holders according to their respective Pro Rata Shares of such losses, Liabilities or expenses. The Converting Holders acknowledge that while the Stockholders’ Agent may shall not be paid from required to expend or risk its own funds or otherwise incur any financial liability in the aforementioned sources exercise or performance of fundsany of its powers, rights, duties or privileges or pursuant to this does not relieve Agreement, the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will Escrow Agreement, the Stockholders’ Agent Engagement Agreement or the transactions contemplated hereby or thereby. Furthermore, the Stockholders’ Agent shall not be required to advance take any action unless the Stockholders’ Agent has been provided with funds, security or indemnities which, in its own funds determination, are sufficient to protect the Stockholders’ Agent against the costs, expenses and liabilities which may be incurred by the Stockholders’ Agent in performing such actions. The Stockholders’ Agent shall be entitled to: (i) rely upon the Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the Company Stockholders applicable Converting Holder or otherwiseother party. Notwithstanding anything in All actions taken by the Stockholders’ Agent under this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable toAgreement, the Company Stockholders set forth elsewhere Escrow Agreement or the Stockholders’ Agent Engagement Agreement shall be binding upon each Converting Holder and such Converting Holder’s successors as if expressly confirmed and ratified in writing by such Converting Holder, and all defenses which may be available to any Converting Holder to contest, negate or disaffirm the action of the Stockholders’ Agent taken in good faith under this Agreement, the Escrow Agreement or the Stockholders’ Agent Engagement Agreement are not intended waived. The powers, immunities and rights to be applicable to the indemnities provided indemnification granted to the Stockholders’ Agent Group hereunder. The foregoing indemnities will : (i) are coupled with an interest and shall be irrevocable and survive the Closingdeath, incompetence, bankruptcy or liquidation of any Converting Holder and shall be binding on any successor thereto, and (ii) shall survive the resignation or removal delivery of an assignment by any Converting Holder of the Stockholders’ Agent whole or any fraction of his, her or its interest in the Adjustment Escrow Fund or the termination of this AgreementIndemnity Escrow Fund.
(c) Upon the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing.
(d) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a8.8(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders Converting Holders and shall be final, binding and conclusive upon each such Company StockholderConverting Holder; and each Acquirer Indemnified Party Person shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company StockholderConverting Holder. Acquirer, Merger Sub Acquirer and the Surviving Corporation Indemnified Persons are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent.
(d) Upon the Closing, Acquirer shall wire to the Stockholders’ Agent $500,000 (the “Expense Fund Amount”). The Expense Fund Amount shall be held by the Stockholders’ Agent in a segregated client account and shall be used (i) for the purposes of paying directly or reimbursing the Stockholders’ Agent for any loss, Liability, claim, damage or expense incurred pursuant to this Agreement, the Escrow Agreement or any Stockholders’ Agent Engagement Agreement, or (ii) as otherwise determined by the Advisory Group (the “Expense Fund”). The Stockholders’ Agent is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholders’ Agent is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund and has no tax reporting or income distribution obligations. The Converting Holders will not receive any interest on the Expense Fund and assign to the Stockholders’ Agent any such interest. Subject to Advisory Group approval, the Stockholders’ Agent may contribute funds to the Expense Fund from any consideration otherwise distributable to the Converting Holders. As soon as reasonably determined by the Stockholders’ Agent that the Expense Fund is no longer required to be withheld, the Stockholders’ Agent shall distribute the remaining Expense Fund (if any) to the Escrow Agent, the Paying Agent and/or Acquirer, as applicable, for further distribution to the Converting Holders.
Appears in 1 contract
Samples: Merger Agreement (SentinelOne, Inc.)
Stockholders’ Agent. (a) By At the adoption of the MergerClosing, and by receiving the benefits hereof, including any consideration payable hereunder, each Company Stockholder shall be deemed to have approved Shareholder Representative Services LLC shall be irrevocably constituted and appointed as the Stockholders’ Agent as for and on behalf of Closing for all purposes in connection with this Agreement and any related agreementsthe Converting Holders by the Converting Holders. The Stockholders’ Agent shall be the agent, representative and attorney-in-fact agent for and on behalf of the Company Stockholders Converting Holders to: (i) execute, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, (ii) following Closing, give and receive notices, instructions and communications permitted or required communications, under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company StockholderConverting Holder, to or from Acquirer (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the Transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder Converting Holder individually), (iii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (iv) review, negotiate and agree to and authorize Acquirer to reclaim an amount of cash from and/or cancel shares of Acquirer Common Stock held in the Escrow Account pursuant to the terms Fund in satisfaction of Section 1.6 claims asserted by Acquirer (on behalf of itself or Article VIII hereof (any other Indemnified Person, including by not objecting to such claims)) pursuant to this Article VIII, (iv) object to such claims pursuant to Section 1.6 or Article VIII8.6, (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder Converting Holder or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, (vi) retain or consult with legal counsel, independent public accountants accountants, consultants and other experts selected by it, solely at the cost and expense of the Company StockholdersConverting Holders, and incur any other reasonable expenses, in connection with all matters and things set forth or necessary with respect to this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions and the transactions contemplated hereby and thereby, (vii) following Closing, consent or agree to any amendment amendment, supplement to and waiver in respect of this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders Converting Holders (other than with respect to the payment and issuance of the Merger Consideration less the Cash Escrow Amount and the Stock Escrow Amount, respectively) in accordance with the terms hereof and in the manner provided herein, (viii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of Company Net Working Capital and (ix) take all actions necessary or appropriate in the good faith judgment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Acquirer, the Merger Sub Subs and their respective Affiliates (including after the Effective Time, the First Step Surviving Corporation, and after the Second Effective Time, the Final Surviving Entity) shall be entitled to rely on the appointment of Shareholder Representative Services LLC as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact of each Company Stockholder and as Converting Holder having the duties, power and authority provided for in this Section 9.18.7. The Company Stockholders Converting Holders shall be bound by all actions taken and documents executed by the Stockholders’ Agent under in connection with this AgreementArticle VIII, and Acquirer and Merger Sub other Indemnified Persons shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. The Person serving as the Stockholders’ Agent may resign at any time, be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then a successor may be appointed, by the holders of a majority in interest of the aggregate amount of cash and the aggregate number of shares of Acquirer Common Stock then held in the Escrow Account Fund (or, in the event that there is no cash then held in the Escrow Account Fund by the Company Stockholders Converting Holders collectively having a Pro Rata Share greater than 50%) upon not less than 30 days’ prior written notice to Acquirer. No bond shall be required of the Stockholders’ Agent, and it shall not be paid any compensation other than pursuant to that certain Engagement Agreement to be entered into by and among Shareholder Representative Services LLC, the Company and certain of the Converting Holders (the “Engagement Agreement”). After the Closing, notices or communications, in writing, to or from the Stockholders’ Agent shall constitute notice to or from each of the Converting Holders.
(b) The Stockholders’ Agent will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Stockholders’ Agent shall not be liable for any action act done or omission omitted hereunder as the Stockholders’ Agent while acting in good faith (and any act done or omitted pursuant to the advice of counselcounsel shall be conclusive evidence of such good faith) and without gross negligence or willful misconduct. The Company Stockholders Converting Holders shall severally but not jointly based on each Converting Holder’s Pro Rata Share indemnify and defend the Stockholders’ Agent and hold it harmless against any reasonableloss, documentedliability damage, and out-of-pocket lossesclaim, liabilities penalty, fine, forfeiture, action, fee, cost or expense (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of of, resulting from or in connection with this Agreement and any related agreementsthe acceptance or administration of its duties hereunder, in each case as such Representative Loss is suffered or incurred; provided, provided that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the bad faith, gross negligence or willful misconduct bad faith of the Stockholders’ Agent, the Stockholders’ Agent will reimburse the Company Stockholders Converting Holders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconductbad faith. If not paid directly to the Stockholders’ Agent by the Converting Holders, such Representative Losses may be recovered by the Stockholders’ Agent from (i) the funds in the Expense Fund and (ii) any other funds that become payable to and/or the Company Stockholders under this Agreement at such time as such amounts would portion of the Escrow Fund otherwise be distributable to the Company StockholdersConverting Holders (and not distributed or distributable to an Indemnified Person or subject to a pending indemnification claim of an Indemnified Person) on or after the Second Escrow Release Date pursuant to the terms hereof, at the time of distribution, and such recovery will be made from the Converting Holders according to their respective Pro Rata Shares of such Representative Losses; provided, provided that while this section allows the Stockholders’ Agent may to be paid from the aforementioned sources of fundsExpense Fund or the Escrow Fund, this does not relieve the Company Stockholders Converting Holders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will , nor does it prevent the Stockholders’ Agent be required from seeking any remedies available to advance its own funds on behalf of the Company Stockholders it at law or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Agent hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Agent or the termination of this Agreement.
(c) Upon the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing.
(d) After the Closing, any notice or communication communication, in writing, given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent Agent, in writing that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a8.7(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders Converting Holders and shall be final, binding and conclusive upon each such Company StockholderConverting Holder; and each Acquirer Indemnified Party Person shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent in writing as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company StockholderConverting Holder. Acquirer, the Merger Sub Subs, the First Step Surviving Corporation, the Final Surviving Entity and the Surviving Corporation Indemnified Persons are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent in writing.
(d) The Stockholders’ Agent shall have reasonable access during regular business hours to information about the Final Surviving Entity as is reasonably requested by the Stockholders’ Agent in the performance of its duties hereunder and the reasonable assistance of the officers and employees of the Final Surviving Entity during regular business hours for purposes of performing its duties and exercising its rights under this Article VIII, provided that the Stockholders’ Agent shall treat confidentially and not disclose any nonpublic information from or about the Final Surviving Entity or Acquirer to anyone except (i) as required by Applicable Law, or (ii) on a need to know basis (A) to its employees and professional advisors under similar duties of confidentiality, (B) to those Converting Holders that sign the Engagement Agreement and who are part of the Stockholders’ Agent Advisory Committee (as defined in the Engagement Letter) and (C) to any other individuals approved by Acquirer in writing in advance, in each case who agree in writing to treat such information confidentially.
(e) Immediately prior to the Closing, the Company will wire to the Stockholders’ Agent an amount to be determined by the Board in its reasonable discretion prior to the Closing (the “Expense Fund”), which will be used for the purposes of paying directly, or reimbursing the Stockholders’ Agent for, any third party expenses pursuant to this Agreement. The Converting Holders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or bad faith. As soon as practicable following the completion of all of the Stockholders’ Agent’s responsibilities hereunder, the Stockholders’ Agent will deliver the balance of the Expense Fund to the Paying Agent for further distribution to the Company Securityholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing. For the avoidance of doubt, to the extent any portion of the Expense Fund remains unpaid as of the Closing, such portion will be included as a Transaction Expense.
Appears in 1 contract
Stockholders’ Agent. (a) By At the adoption of the MergerClosing, and by receiving the benefits hereof, including any consideration payable hereunder, each Company Stockholder shall be deemed to have approved Shareholder Representative Services LLC shall be constituted and appointed as the Stockholders’ Agent. The Stockholders’ Agent as shall be the agent for and on behalf of Closing the Converting Holders for all purposes in connection with this Agreement and any related agreements. The Stockholders’ Agent shall be the agentagreements ancillary hereto, representative and attorney-in-fact for and on behalf of the Company Stockholders including without limitation to: (i) execute, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, (ii) following Closing, give and receive notices, instructions and communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company StockholderConverting Holder, to or from Acquirer (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the Transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument related to or contemplated by this Agreement (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder Converting Holder individually), (iii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (iv) review, negotiate and agree to and authorize Acquirer to reclaim an amount of cash from the Escrow Account pursuant to the terms Indemnification Holdback Fund in satisfaction of Section 1.6 claims asserted by Acquirer (on behalf of itself or Article VIII hereof (any other Indemnified Person, including by not objecting to such claims)) pursuant to this Article VIII, (iv) object to such claims pursuant to Section 1.6 or Article VIII8.6, (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder Converting Holder or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company StockholdersConverting Holders, (vii) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders Converting Holders (other than with respect to the issuance payment of the Merger Consideration less the Escrow Amountamounts withheld pursuant to its terms) in accordance with the terms hereof and in the manner provided herein, (viii) pursuant to Section 1.6, engage and consult with Representatives for the purposes of preparing the Closing Balance Sheet and the Company Statement, (ix) pursuant to Section 1.6, negotiate the final calculation of the Tangible Net Worth Amount with Acquirer and the Designated Accounting Firm, if necessary, and (ixx) take all actions necessary or appropriate in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Acquirer, Merger Sub and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the appointment of Shareholder Representative Services LLC as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact of each Company Stockholder Converting Holder and as has having the duties, power and authority provided for in this Section 9.18.7. The Company Stockholders Converting Holders shall be bound by all actions taken and documents executed by the Stockholders’ Agent under in connection with this Agreement, and Acquirer and Merger Sub other Indemnified Persons shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. The Person serving as the Stockholders’ Agent may be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then a successor may be appointed, appointed by the holders of a majority in interest of the aggregate amount of cash then held in the Escrow Account (or, in the event that there is no cash then held in the Escrow Account by the Company Stockholders Converting Holders collectively having a Pro Rata Share greater than 50%) % upon not less than 30 days’ prior written notice to Acquirer. No bond shall be required of the Stockholders’ Agent.
(b) The Stockholders’ Agent will incur no liability shall not be liable to any Converting Holder for any act done or omitted hereunder as the Stockholders’ Agent while acting in connection with its services good faith (and any act done or omitted pursuant to this Agreement the advice of counsel shall be conclusive evidence of such good faith) and any related agreements except to the extent resulting from its without gross negligence or willful misconduct. The Stockholders’ Agent Converting Holders shall severally (based on their Pro Rata Share) but not be liable for any action or omission pursuant to the advice of counsel. The Company Stockholders shall jointly indemnify the Stockholders’ Agent and hold it harmless against any reasonable, documented, and out-of-pocket losses, liabilities liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Agent Losses”) arising out of or in connection with the Stockholders’ Agent’s execution and performance of this Agreement and any related agreementsthe agreements ancillary hereto, in each case as such Representative Agent Loss is suffered or incurred; provided, that in the event that any such Representative Agent Loss is finally adjudicated to have been directly caused by the bad faith, gross negligence or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse the Company Stockholders Converting Holders the amount of such indemnified Representative Agent Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative If not paid directly to the Stockholders’ Agent by the Converting Holders, any such Agent Losses may be recovered by the Stockholders’ Agent from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement amounts in the Indemnification Holdback Fund at such time as such remaining amounts would otherwise be distributable to the Company StockholdersConverting Holders; provided, that while this section allows the Stockholders’ Agent may to be paid from the aforementioned sources of fundsExpense Fund and the Indemnification Holdback Fund, this does not relieve the Company Stockholders Converting Holders from their obligation to promptly pay such Representative Agent Losses as they are suffered or incurred, nor does it prevent the Stockholders’ Agent from seeking any remedies available to it at law or otherwise. In no event will the Stockholders’ Agent be required to advance its own funds on behalf of the Company Stockholders Converting Holders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on indemnity or liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth contained elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Agent hereunderunder this Section 8.7(b). The Converting Holders acknowledge and agree that the foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Agent or the termination of this Agreement.
(c) Upon the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing.
(d) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a8.7(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders Converting Holders and shall be final, binding and conclusive upon each such Company StockholderConverting Holder; and each Acquirer Indemnified Party Person shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company StockholderConverting Holder. Acquirer, Merger Sub and Sub, the Surviving Corporation and the Indemnified Persons are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent.
(d) At Closing, Acquirer will wire to the Stockholders’ Agent an amount of $125,000 (the “Expense Fund”), which will be used for the purposes of paying directly, or reimbursing the Stockholders’ Agent for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Converting Holders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholders’ Agent will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable after the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver the balance of the Expense Fund to the Paying Agent for further distribution to the Converting Holders in accordance with their Pro Rata Shares. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Converting Holders at the time of Closing.
Appears in 1 contract
Samples: Merger Agreement (Infoblox Inc)
Stockholders’ Agent. (a) By Effective at the adoption of the MergerClosing, and by receiving the benefits hereof, including any consideration payable hereunder, each Company Stockholder shall be deemed to have approved Shareholder Representative Services LLC shall be, and hereby is, appointed by the Stockholders as the agent, proxy and attorney-in-fact for such Stockholders, with full power of substitution and re-substitution, for all purposes under this Agreement, the Escrow Agreement, and the Paying Agent Agreement (including full power and authority to act on the Stockholders’ Agent as behalf). For purposes of Closing for all purposes in connection with this Agreement and any related agreements. The Agreement, the term “Stockholders’ Agent Agent” shall be mean the agent, representative agent and attorney-in-fact for and on behalf of the Company Stockholders to: (i) execute, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, transactions contemplated hereby; (ii) following Closing, give and receive notices, instructions instructions, and communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company Stockholder, to or from Acquirer Acquiror (on behalf of itself or any other Acquiror Indemnified Person) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement, the Paying Agent Agreement or any of the Transactions transactions and any other matters contemplated by this Agreement hereby or by such other agreement, document or instrument thereby (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder individually), ; (iii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (ivii) review, negotiate and agree to and authorize Acquirer deliveries to reclaim an amount Acquiror of cash from the Escrow Account pursuant to the terms Fund in satisfaction of Section 1.6 claims asserted by Acquiror (on behalf of itself or Article VIII hereof (any other Acquiror Indemnified Person, including by not objecting to such claims), ) pursuant to this Article 11; (iviii) object to such claims pursuant to Section 1.6 or Article VIII, 11.5; (viv) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions transactions contemplated hereby by arbitrationlawsuit, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, ; (viv) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company Stockholders, ; (viivi) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders (other than with respect so long as any such amendment or waiver applies equally to the issuance of the Merger Consideration less the Escrow Amountall Stockholders) in accordance with the terms hereof and in the manner provided herein, ; and (ixvii) take all actions necessary or appropriate in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. AcquirerAcquiror, Merger Sub and their respective Affiliates (including including, after the Effective Time, the Surviving Corporation) shall be entitled to rely on the appointment of Shareholder Representative Services LLC as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact of each Company Stockholder and as has having the duties, power and authority provided for in this Section 9.111.7. The Company Stockholders shall be bound by all actions taken and documents executed by the Stockholders’ Agent under in connection with this AgreementArticle 11, and Acquirer Acquiror and Merger Sub other Acquiror Indemnified Persons shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. The Person serving as the Stockholders’ Agent may resign at any time and may be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then time by a successor may be appointed, written consent signed by the holders of Stockholders holding at least a majority in interest of the aggregate amount outstanding shares of cash then held Common Stock and Preferred Stock (voting together as a single class on an as converted to Common Stock basis) in accordance with the Escrow Account (or, in the event that there is no cash then held in the Escrow Account by the Company Stockholders collectively having a Pro Rata Share greater than 50%) Contribution and Indemnity Agreement upon not less than 30 ten (10) calendar days’ prior written notice to AcquirerAcquiror. No bond shall be required of the Stockholders’ Agent.
(b) The Stockholders’ Agent will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Stockholders’ Agent shall not be liable for any action or omission pursuant to the advice of counsel. The Company Stockholders shall indemnify the Stockholders’ Agent against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct All of the Stockholders’ Agent, the Stockholders’ Agent will reimburse the Company Stockholders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Stockholders’ Agent from (i) the funds in the Expense Fund immunities and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; provided, that while the Stockholders’ Agent may be paid from the aforementioned sources of funds, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Stockholders’ Agent be required to advance its own funds on behalf of the Company Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided powers granted to the Stockholders’ Agent hereunder. The foregoing indemnities will under this Agreement shall survive the Closing, the resignation or removal of the Stockholders’ Agent or the Closing and/or any termination of this Agreement and the Escrow Agreement.
(c) Upon the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any grant of authority provided for in this Section 11.7 is coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion liquidation of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing.
(d) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company respective Stockholders and shall be final, binding and conclusive upon each such Company Stockholder; and each Acquirer Indemnified Party shall be entitled to rely exclusively upon on any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company Stockholder. Acquirer, Merger Sub and the Surviving Corporation are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agentsuccessor thereto.
Appears in 1 contract
Stockholders’ Agent. (a) By At the adoption of the MergerClosing, and by receiving the benefits hereof, including any consideration payable hereunder, each Company Stockholder shall be deemed to have approved Shareholder Representative Services LLC shall be constituted and appointed as the Stockholders’ Agent as Agent. For purposes of Closing for all purposes in connection with this Agreement and any related agreements. The Agreement, the term “Stockholders’ Agent shall be Agent” means the agentexclusive representative, representative agent and attorney-in-fact for and on behalf of the Company Stockholders to: Effective Time Holders for all purposes in connection with this Agreement and the agreements ancillary hereto, including to (i) execute, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, (ii) following Closing, give and receive notices, instructions notices and communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company Stockholder, to or from Acquirer (on behalf of itself of any other Indemnified Person) relating to this Agreement, the Escrow Agreement or any of the Transactions transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder such Effective Time Holders individually), (iiiii) pursuant authorize deliveries to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (iv) review, negotiate and agree to and authorize Acquirer to reclaim an amount of cash from the Escrow Account pursuant to the terms Fund in satisfaction of Section 1.6 claims asserted by Acquirer (on behalf of itself or Article VIII hereof (any other Indemnified Person, including by not objecting to such claims), (iviii) object to such claims pursuant to Section 1.6 or Article VIII8.5, (viv) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders orders of courts and awards of arbitrators with respect to, such claims, resolve (v) provide any such claimsconsents hereunder, take including with respect to any actions in connection with the resolution proposed settlement of any dispute relating hereto or to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company Stockholders, (vii) following Closing, consent claims or agree to any amendment to this Agreement or to waive Agreement, (vi) take any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders (other than with respect to the issuance of the Merger Consideration less the Escrow Amount) actions set forth in accordance with the terms hereof and in the manner provided herein, Section 9.2 and (ixvii) take all actions necessary or appropriate in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. AcquirerNotwithstanding the foregoing, Merger Sub and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the appointment of Shareholder Representative Services LLC as the Stockholders’ Agent shall have no obligation to act on behalf of the Effective Time Holders, except as expressly provided herein, in the Escrow Agreement and treat such Stockholders’ Agent as the duly appointed attorney-in-fact of each Company Stockholder and as having the duties, power and authority provided for in this Section 9.1. The Company Stockholders shall be bound by all actions taken and documents executed by the Stockholders’ Agent under this AgreementEngagement Agreement and for purposes of clarity, and Acquirer and Merger Sub shall be entitled to rely exclusively on any action or decision there are no obligations of the Stockholders’ AgentAgent in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedule. The Stockholders’ Agent shall be entitled to: (a) rely upon the Closing Spreadsheet, (b) rely upon any signature believed by it to be genuine, and (c) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Effective Time Holder or other party. The Stockholders’ Agent may resign at any time. The Person serving as the Stockholders’ Agent may be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then a successor may be appointed, time by the holders of a majority in interest of the aggregate amount of cash then held on deposit in the Escrow Account (or, in the event that there is no cash then held in the Escrow Account by the Company Stockholders collectively having a Pro Rata Share greater than 50%) Fund upon not less than 30 10 days’ prior written notice to Acquirer. No bond shall be required of the Stockholders’ Agent.
(b) The Stockholders’ Agent will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Stockholders’ Agent shall not be liable for any action or omission pursuant powers, immunities and rights to the advice of counsel. The Company Stockholders shall indemnify the Stockholders’ Agent against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse the Company Stockholders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Stockholders’ Agent from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; provided, that while the Stockholders’ Agent may be paid from the aforementioned sources of funds, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Stockholders’ Agent be required to advance its own funds on behalf of the Company Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided granted to the Stockholders’ Agent Group hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Agent or the termination of this Agreement.
: (ci) Upon the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any are coupled with an interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing.
(d) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders and shall be finalirrevocable and survive the death, binding incompetence, bankruptcy or liquidation of any Effective Time Holder and conclusive upon each such Company Stockholder; and each Acquirer Indemnified Party shall be entitled to rely exclusively upon binding on any such noticesuccessor thereto, communication, decision, action, failure to act within a designated period and (ii) shall survive the delivery of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company Stockholder. Acquirer, Merger Sub and the Surviving Corporation are hereby relieved from an assignment by any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction Effective Time Holder of the Stockholders’ Agentwhole or any fraction of his, her or its interest in the Escrow Fund.
Appears in 1 contract
Samples: Merger Agreement (MongoDB, Inc.)