The Stockholders Representative. (a) Each of the Material Stockholders does hereby irrevocably make, constitute and appoint the Stockholders’ Representative as his, her or its agent, to act in his, her or its name, place and stead, as such Material Stockholder’s attorney-in-fact, to (i) execute and deliver all documents necessary or desirable to carry out the intent of the Transaction Documents (including in the name of, or on behalf of, such Material Stockholder), (ii) make all elections or decisions entered into in connection with this Agreement and the other Transaction Documents, (iii) hold such Material Stockholder’s equity securities of the Company and transfer, exercise or convert such equity securities, as the case may be, in accordance with the terms hereof, (iv) act on such Material Stockholder’s behalf in connection with all obligations and agreements of the Material Stockholders under the Transaction Documents, (v) amend, waive or otherwise change the terms or conditions of this Agreement and each other Transaction Document on behalf of such Material Stockholder, (vi) defend, settle and make payments to the Ticketmaster Indemnified Parties on behalf of such Material Stockholder in connection with any claim for indemnification made by any Ticketmaster Indemnified Party pursuant to Article X hereof and to initiate and prosecute any claim for indemnification made by or on behalf of such Material Stockholder pursuant to Article X hereof (and such Material Stockholder recognizes and acknowledges, for the benefit of Ticketmaster and the Surviving Corporation, that he, she or it shall have no independent right to pursue any such claim), (vii) receive any deliveries of the Merger Consideration (as adjusted pursuant hereto), or other amounts due to such Material Stockholder under the Transaction Documents, review and accept all calculations regarding such payments and negotiate any modifications thereto (and such Material Stockholder recognizes and acknowledges, for the benefit of Ticketmaster and the Surviving Corporation, that he, she or it shall have no independent right to pursue any claim regarding such payments, calculations or modifications), (viii) give and receive on behalf of the Material Stockholders any and all notices from or to any Material Stockholder or Stockholders under the Transaction Documents, (ix) if necessary or desirable, as determined by the Stockholders’ Representative in its sole discretion, incorporate corporations, organize partnerships, organize limited liability companies and take similar actions on behalf of the Material Stockholders and take all actions in connection therewith, and (x) otherwise exercise all rights of such Material Stockholder and otherwise act on behalf of such Material Stockholder under the Transaction Documents and in connection with any of the Transactions, in each case as if such Material Stockholder had personally done such act, and the Stockholders’ Representative hereby accepts such appointment. Any proceeds or other assets received by the Stockholders’ Representative from Ticketmaster, Merger Sub or the Company on behalf of the Material Stockholders (including the Initial Merger Consideration and the Subsequent Merger Consideration) shall be distributed to the Material Stockholders as promptly as practicable by the Stockholders’ Representative, in accordance with the terms and provisions of this Agreement and the other Transaction Documents. The death, incapacity, dissolution, liquidation, insolvency or bankruptcy of any Material Stockholder shall not terminate such appointment or the authority and agency of the Stockholders’ Representative. The power-of-attorney granted in this Article XI is coupled with an interest and is irrevocable. (b) The Stockholders’ Representative shall be entitled to rely, and shall be fully protected in relying, upon any statements furnished to it by any other Material Stockholder, the Company, Ticketmaster, Merger Sub or any third Person or any other evidence reasonably deemed by the Stockholders’ Representative to be reliable, and the Stockholders’ Representative shall be entitled to act on the advice of counsel selected by it. (c) The Stockholders’ Representative shall be entitled to retain counsel acceptable to it and to incur such expenses as the Stockholders’ Representative deems to be necessary or appropriate in connection with its performance of its obligations under this Agreement and the other Transaction Documents, and all such fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Stockholders’ Representative shall be a deducted from the Reserve Amount or otherwise shall be jointly and severally borne by each other Material Stockholder. (d) The Material Stockholders hereby agree to jointly and severally indemnify the Stockholders’ Representative (in its capacity as such) against, and to hold the Stockholders’ Representative (in its capacity as such) harmless from, any and all Losses and other Liabilities of whatever kind which may at any time be imposed upon, incurred by or asserted against the Stockholders’ Representative in such capacity in any way relating to or arising out of its action or failures to take action pursuant to this Agreement or any other Transaction Document. (e) TNSH, LLC shall be the initial Stockholders’ Representative and shall serve as the Stockholders’ Representative until his resignation, which resignation shall only be effective upon the selection of a new Stockholders’ Representative as provided in this Section 11(e). Upon the resignation of TNSH, LLC, the Material Stockholders holding a majority of the Common Stock on an as converted basis as of immediately prior to the Closing shall select a new Stockholders’ Representative. Each time a new Stockholders’ Representative is appointed pursuant to this Agreement, such Person, as a condition precedent to the effectiveness of such appointment, shall accept such position in writing and execute a joinder to this Agreement and other Transaction Documents to which the Stockholders’ Representative is a party, in each case in form and substance reasonably satisfactory to Ticketmaster. (f) The provisions of this Article XI shall in no way impose any obligations on Ticketmaster or Merger Sub. In particular, notwithstanding any notice received by Ticketmaster or Merger Sub to the contrary, and absent bad faith or willful misconduct, Ticketmaster and Merger Sub (i) shall be fully protected in relying upon and shall be entitled to rely upon, and shall have no Liability to the Material Stockholders with respect to, actions, decisions and determinations of the Stockholders’ Representative and (ii) shall be entitled to assume that all actions, decisions and determinations of the Stockholders’ Representative are fully authorized by all of the Material Stockholders. (g) The Reserve Amount shall be used by the Stockholders’ Representative to cover fees and expenses incurred by the Stockholders’ Representative in connection with his acting in such capacity, to cover fees and expenses payable in connection with the Transactions that arise or become due and payable after Closing and may be used for such other matters in connection with the Transactions as the Stockholders’ Representative may reasonably determine in his sole discretion. The Reserve Amount shall be held by the Stockholders’ Representative and each Material Stockholder shall be entitled to his, her or its pro-rata portion of the Reserve Amount when the Reserve Amount is distributed. The Reserve Amount shall be distributed to the Material Stockholders at such times, and in such amounts, as the Stockholders’ Representative reasonably determines in his sole discretion. (h) The Stockholders’ Representative hereby represents and warrants to Ticketmaster and Merger Sub that (i) such Stockholders’ Representative has all requisite power and authority to execute and deliver this Agreement and each other Transaction Document to which it is a party and to perform its obligations hereunder and thereunder and to consummate the Transactions, and (ii) this Agreement has been, and each other Transaction Document to which it is a party will be, at or prior to the Closing, duly and validly executed and delivered by the Stockholders’ Representative and (assuming the due authorization, execution and delivery by the other parties hereto and thereto other than the Material Stockholders and the Company) this Agreement constitutes, and each other Transaction Document to which it is a party, when so executed and delivered will constitute, the legal, valid and binding obligations of the Stockholders’ Representative, enforceable against it in accordance with its terms, subject to the Bankruptcy and Equity Exception and (iii) none of the execution and delivery by the Stockholders’ Representative of this Agreement or the other Transaction Documents to which it is a party or compliance by the Stockholders’ Representative with any of the provisions hereof or thereof will conflict with, or result in any violation or breach of, conflict with or cause a default (with or without notice or lapse of time, or both) under, or give rise to a right of termination or cancellation or result in the creation of any Encumbrances upon any of the properties or assets of the Stockholders’ Representative under, (A) any provision of any Contract or Permit to which the Stockholders’ Representative is a party or by which any of the properties or assets of the Stockholders’ Representative are bound, (B) any Order of any Governmental Body applicable to the Stockholders’ Representative or by which any of the properties or assets of the Stockholders’ Representative are bound, or (C) any applicable Law and (iv) no Consent, Order or Permit is required on the part of the Stockholders’ Representative in connection with the execution and delivery of this Agreement or the Transaction Documents to which it is a party or the compliance by the Stockholders’ Representative with any of the provisions hereof or thereof.
Appears in 1 contract
Samples: Merger Agreement (Ticketmaster)
The Stockholders Representative. (a) In order to efficiently administer the transactions contemplated hereby, including the defense or settlement of any Claims for which Company may be required to indemnify Buyer pursuant to ARTICLE VII hereof, Stockholders shall have designated Xxxxxx X. Xxxxxx, as the Stockholders’ Representative pursuant to that certain Stockholders’ Representative Agreement by and between the Stockholders’ Representative and the Stockholders party thereto dated of even date herewith (the “Stockholders’ Representative Agreement”), a copy of which is attached as hereto as Exhibit G.
(b) Each of the Material Stockholders does hereby pursuant to the Stockholders’ Representative Agreement, thereby irrevocably make, constitute and appoint appoints the Stockholders’ Representative as his, her or its the agent, to act in his, her or its name, place proxy and stead, as such Material Stockholder’s attorney-in-fact, to fact for such Stockholders for all purposes of this Stockholders’ Representative Agreement (including the full power and authority on such Stockholders’ behalf (i) to consummate the transactions contemplated herein; (ii) to pay such Stockholders’ expenses incurred in connection with the negotiation and performance of this Agreement (whether incurred on or after the date hereof); (iii) to disburse any funds or securities received hereunder to such Stockholders and each other Stockholders; (iv) to endorse and deliver any certificates or instruments representing the Common Stock and execute such further instruments of assignment as Buyer shall reasonably request; (v) to execute and deliver all documents necessary or desirable to carry out the intent of the Transaction Documents (including in the name of, or on behalf of, such Material Stockholder), (ii) make all elections or decisions entered into in connection with this Agreement and the other Transaction Documents, (iii) hold such Material Stockholder’s equity securities of the Company and transfer, exercise or convert such equity securities, as the case may be, in accordance with the terms hereof, (iv) act on such Material Stockholder’s behalf in connection with all obligations and agreements of the Material Stockholders under the Transaction Documents, (v) amend, waive or otherwise change the terms or conditions of this Agreement and each other Transaction Document on behalf of such Material Stockholder, Stockholders any amendment or waiver hereto; (vi) defend, settle and make payments to the Ticketmaster Indemnified Parties on behalf of such Material Stockholder in connection with any claim for indemnification made by any Ticketmaster Indemnified Party pursuant take all other actions to Article X hereof and to initiate and prosecute any claim for indemnification made be taken by or on behalf of such Material Stockholder pursuant to Article X hereof (and such Material Stockholder recognizes and acknowledges, for the benefit of Ticketmaster and the Surviving Corporation, that he, she or it shall have no independent right to pursue any such claim), Stockholders in connection herewith; (vii) receive to negotiate, settle, compromise and otherwise handle any deliveries of the Merger Consideration (as adjusted pursuant hereto), or other amounts due to such Material Stockholder under the Transaction Documents, review and accept all calculations regarding such payments claims for indemnification made by Buyer; and negotiate any modifications thereto (and such Material Stockholder recognizes and acknowledges, for the benefit of Ticketmaster and the Surviving Corporation, that he, she or it shall have no independent right to pursue any claim regarding such payments, calculations or modifications), (viii) give to do each and receive on behalf of the Material Stockholders every act and exercise any and all notices from rights which such Stockholders collectively are permitted or required to do or exercise under this Agreement). Each of the Stockholders agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Stockholders’ Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of any Material Stockholder or Stockholders under the Transaction Documents, (ix) if necessary or desirable, as determined Stockholders. All decisions and actions by the Stockholders’ Representative in its sole discretion, incorporate corporations, organize partnerships, organize limited liability companies and take similar actions on behalf of (to the Material Stockholders and take all actions in connection therewith, and (x) otherwise exercise all rights of such Material Stockholder and otherwise act on behalf of such Material Stockholder under the Transaction Documents and in connection with any of the Transactions, in each case as if such Material Stockholder had personally done such act, and the Stockholders’ Representative hereby accepts such appointment. Any proceeds or other assets received extent authorized by the Stockholders’ Representative from Ticketmaster, Merger Sub or the Company on behalf of the Material Stockholders (including the Initial Merger Consideration and the Subsequent Merger ConsiderationAgreement) shall be distributed binding upon each of the Stockholders, and no Stockholders shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each of the Stockholders pursuant to the Material Stockholders Stockholders’ Representative Agreement, represents and warrants that (i) they are residents of the United States, (ii) they are each an accredited investor as promptly defined in Rule 501(a) of Regulation D promulgated under the Securities Act, (iii) they are receiving the Common Stock Per Share Merger Consideration for investment for their own account, not as practicable a nominee or agent, and not with a view to the resale or distribution of any part thereof, and have no present intention of selling, granting any participation in, or otherwise distributing the same, (iv) they have carefully reviewed the representations concerning the Buyer contained in this Agreement, the periodic reports and other filings with the Securities and Exchange Commission of Buyer, and other due diligence material requested by, or provided to, the Company, and have made detailed inquiry concerning the Buyer, its business and its personnel, (v) they understand that the Common Stock Per Share Merger Consideration has not been, and will not be, registered under the Securities Act, by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of their representations as expressed therein, and (vi) they understand that the Common Stock Per Share Merger Consideration will bear one or more restrictive legends.
(d) The Stockholders, pursuant to the Stockholders’ Representative Agreement, will agree not to collectively sell, each trading day, that number of shares of Buyer’s Stock which is more than ten percent (10%) of the average daily volume for the preceding fifteen (15) trading days as reported by the NASDAQ bulletin board system, of the Buyer common stock, until that date which is eighteen months following the Effective Time. Notwithstanding the foregoing, in the event that the Buyer has applied to trade Buyer common stock on any national securities exchange (a “Market”) the Stockholders, pursuant to the Stockholders’ Representative Agreement, will agree, upon the written request of Buyer, not to sell any shares of Buyer’s Stock for a period of up to ninety (90) days. Notwithstanding the foregoing, the provisions of this Section 12.1(d) shall terminate immediately upon the listing of Buyer common stock on a Market.
(e) Each Stockholder pursuant to the Stockholders’ Representative Agreement, agrees that Buyer shall be entitled to rely on any action taken by the Stockholders’ Representative, in accordance with the terms on behalf of such Stockholders, pursuant to Section 12.1(b) above (an “Authorized Action”), and provisions of this Agreement and the other Transaction Documentsthat each Authorized Action shall be binding on each Stockholders as fully as if such Stockholders had taken such Authorized Action. The death, incapacity, dissolution, liquidation, insolvency or bankruptcy of any Material Stockholder shall not terminate such appointment or the authority and agency of Buyer agrees that the Stockholders’ Representative. The power-of-attorney granted in this Article XI is coupled with an interest and is irrevocable.
(b) The , as the Stockholders’ Representative Representative, shall be entitled have no liability to relyBuyer for any Authorized Action, and shall be fully protected in relyingexcept to the extent that such Authorized Action is found by a final order of a court of competent jurisdiction to have constituted fraud or willful misconduct. Each Stockholders shall, upon any statements furnished pursuant to it by any other Material Stockholder, the Company, Ticketmaster, Merger Sub or any third Person or any other evidence reasonably deemed by the Stockholders’ Representative Agreement severally, for itself only and not jointly and severally, agrees to be reliable, indemnify and hold harmless the Stockholders’ Representative shall be entitled to act on the advice of counsel selected by it.
(c) The Stockholders’ Representative shall be entitled to retain counsel acceptable to it and to incur such expenses as the Stockholders’ Representative deems to be necessary or appropriate in connection with its performance of its obligations under this Agreement and the other Transaction Documents, and against all such fees and expenses (including reasonable attorneys’ fees fees), judgments, fines and expenses) incurred by the Stockholders’ Representative shall be a deducted from the Reserve Amount or otherwise shall be jointly amounts paid in settlement actually and severally borne by each other Material Stockholder.
(d) The Material Stockholders hereby agree to jointly and severally indemnify the Stockholders’ Representative (in its capacity as such) against, and to hold the Stockholders’ Representative (in its capacity as such) harmless from, any and all Losses and other Liabilities of whatever kind which may at any time be imposed upon, incurred by or asserted against the Stockholders’ Representative in such capacity in any way relating to or arising out of its action or failures to take action pursuant to this Agreement or any other Transaction Document.
(e) TNSH, LLC shall be the initial Stockholders’ Representative and shall serve as the Stockholders’ Representative until his resignation, which resignation shall only be effective upon the selection of a new Stockholders’ Representative as provided in this Section 11(e). Upon the resignation of TNSH, LLC, the Material Stockholders holding a majority of the Common Stock on an as converted basis as of immediately prior to the Closing shall select a new Stockholders’ Representative. Each time a new Stockholders’ Representative is appointed pursuant to this Agreement, such Person, as a condition precedent to the effectiveness of such appointment, shall accept such position in writing and execute a joinder to this Agreement and other Transaction Documents to which the Stockholders’ Representative is a party, in each case in form and substance reasonably satisfactory to Ticketmaster.
(f) The provisions of this Article XI shall in no way impose any obligations on Ticketmaster or Merger Sub. In particular, notwithstanding any notice received by Ticketmaster or Merger Sub to the contrary, and absent bad faith or willful misconduct, Ticketmaster and Merger Sub (i) shall be fully protected in relying upon and shall be entitled to rely upon, and shall have no Liability to the Material Stockholders with respect to, actions, decisions and determinations of the Stockholders’ Representative and (ii) shall be entitled to assume that all actions, decisions and determinations of the Stockholders’ Representative are fully authorized by all of the Material Stockholders.
(g) The Reserve Amount shall be used by the Stockholders’ Representative to cover fees and expenses incurred by the Stockholders’ Representative in connection with his acting in such capacityany action, to cover fees and expenses payable in connection with the Transactions that arise suit or become due and payable after Closing and may be used for such other matters in connection with the Transactions as the Stockholders’ Representative may reasonably determine in his sole discretion. The Reserve Amount shall be held by the Stockholders’ Representative and each Material Stockholder shall be entitled to his, her or its pro-rata portion of the Reserve Amount when the Reserve Amount is distributed. The Reserve Amount shall be distributed to the Material Stockholders at such times, and in such amounts, as the Stockholders’ Representative reasonably determines in his sole discretion.
(h) The Stockholders’ Representative hereby represents and warrants to Ticketmaster and Merger Sub that (i) such Stockholders’ Representative has all requisite power and authority to execute and deliver this Agreement and each other Transaction Document to which it is a party and to perform its obligations hereunder and thereunder and to consummate the Transactions, and (ii) this Agreement has been, and each other Transaction Document to which it is a party will be, at or prior to the Closing, duly and validly executed and delivered by the Stockholders’ Representative and (assuming the due authorization, execution and delivery by the other parties hereto and thereto other than the Material Stockholders and the Company) this Agreement constitutes, and each other Transaction Document to which it is a party, when so executed and delivered will constitute, the legal, valid and binding obligations of the Stockholders’ Representative, enforceable against it in accordance with its terms, subject to the Bankruptcy and Equity Exception and (iii) none of the execution and delivery by the Stockholders’ Representative of this Agreement or the other Transaction Documents to which it is a party or compliance by the Stockholders’ Representative with any of the provisions hereof or thereof will conflict with, or result in any violation or breach of, conflict with or cause a default (with or without notice or lapse of time, or both) under, or give rise to a right of termination or cancellation or result in the creation of any Encumbrances upon any of the properties or assets of the Stockholders’ Representative under, (A) any provision of any Contract or Permit proceeding to which the Stockholders’ Representative is made a party or by which any reason of the properties fact it is or assets of was acting as the Stockholders’ Representative are bound, (B) any Order of any Governmental Body applicable pursuant to the terms of this Agreement.
(f) Notwithstanding anything to the contrary herein, Stockholders’ Representative shall not in any manner exercise, or seek to exercise, any voting power whatsoever with respect to any Common Stock now or hereafter owned of record or beneficially by which any of the properties or assets of the Stockholders unless Stockholders’ Representative are boundis expressly authorized to do so in a writing signed by such Stockholders.
(g) In the event that Stockholders’ Representative dies, winds up operations, becomes unable to perform his, her or (C) any applicable Law and (iv) no Consentits responsibilities hereunder or resigns from such position, Order Stockholders receiving or Permit is required on having the part right to receive a majority of the Common Merger Consideration are authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(h) Stockholders shall be bound by all actions taken by Stockholders’ Representative in its capacity thereof, except for any action that conflicts with the limitation set forth in Section 12.1(c).
(i) Stockholders’ Representative shall promptly, and in any event within five (5) Business Days, provide notice to Stockholders of any action taken on behalf of them by Stockholders’ Representative pursuant to the authority delegated to Stockholders’ Representative under this Section 12.1. Stockholders’ Representative shall at all times act in its capacity as Stockholders’ Representative in a manner that Stockholders’ Representative believes to be in the best interest of Stockholders. Neither Stockholders’ Representative nor any of its directors, officers, agents, partners, members or employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement, except in the case of its gross negligence, fraud, bad faith or willful misconduct. Stockholders’ Representative may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. Stockholders’ Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement. Each Stockholders severally shall indemnify and hold harmless and reimburse Stockholders’ Representative from and against such Stockholders’ ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by Stockholders’ Representative arising out of or resulting from any action taken or omitted to be taken by Stockholders’ Representative under this Agreement, other than such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from Stockholders’ Representative’s bad faith or willful misconduct.
(j) Buyer shall be entitled to rely conclusively on the instructions and decisions of Stockholders’ Representative regarding the settlement of any claims for indemnification by any of the Indemnified Parties pursuant to ARTICLE VII hereof, or any other actions required or permitted to be taken by Stockholders’ Representative hereunder, and no party hereunder shall have any cause of action against Buyer or the Company for any action taken by Buyer or the Company in reliance upon the instructions or decisions of Stockholders’ Representative.
(k) Each Stockholders agrees, in addition to the foregoing, that: (i) the provisions of this Section 12.1 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholders may have in connection with the execution transactions contemplated by this Agreement; and delivery (ii) the provisions of this Agreement or Section 12.1(k) shall be binding upon the Transaction Documents to which it is a party or the compliance by executors, heirs, legal representatives, personal representatives, successor trustees and successors of each of the Stockholders, and any references in this Agreement to a Stockholders shall mean and include the successors to Stockholders’ Representative with any rights hereunder, whether pursuant to testamentary disposition, the laws of the provisions hereof descent and distribution or thereofotherwise.
Appears in 1 contract
Samples: Merger Agreement (Ants Software Inc)
The Stockholders Representative. (a) Each The Selling Stockholders hereby authorize, direct and appoint Exelon (in such capacity, the “Stockholders’ Representative”) to act as sole and exclusive agent, attorney-in-fact and representative of the Material Selling Stockholders, with full power of substitution with respect to all matters under this Agreement, including determining, giving and receiving notices and processes hereunder, receiving distributions of the Purchase Price to or for the benefit of the Selling Stockholders, contesting and settling any and all claims for payment or indemnification pursuant to Article V or VII, resolving any other disputes hereunder, performing the duties expressly assigned to Exelon hereunder and to engage and employ agents and representatives and to incur such other expenses as Exelon shall reasonably deem necessary or prudent in connection with the foregoing. Exelon shall have the sole and exclusive right on behalf of any Selling Stockholder to take any action or provide any waiver, or receive any notice with respect to any claims for payment or indemnification under Article V or VII and to settle any claim or controversy arising with respect thereto. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by Exelon, shall be absolutely and irrevocably binding on each Selling Stockholder as if such Selling Stockholder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Selling Stockholder’s individual capacity, and no Selling Stockholder shall have the right to object, dissent, protest or otherwise contest the same. Any action required to be taken by the Selling Stockholders does hereby irrevocably makehereunder or any action which the Selling Stockholders, at their election, have the right to take hereunder, shall be taken only by Exelon and no Selling Stockholder acting on its own shall be entitled to take any such action. All deliveries and payments to be made by Buyer to any Selling Stockholder hereunder shall be made exclusively to Exelon on behalf of the Selling Stockholders and any delivery or payment so made to Exelon shall constitute full performance of the obligations hereunder of Buyer to the Selling Stockholders. Buyer shall not be liable for allocation of particular deliveries and appoint payments among the Selling Stockholders’ Representative .
(b) The appointment of Exelon as his, her or its agent, to act in his, her or its name, place and stead, as such Material each Selling Stockholder’s attorney-in-factfact revokes any power of attorney heretofore granted that authorized any other Person or Persons to represent such Selling Stockholder with regard to this Agreement, to (i) execute and deliver all documents necessary or desirable to carry out the intent of the Transaction Documents (including in the name of, or on behalf of, such Material Stockholder), (ii) make all elections or decisions entered into in connection with this Agreement ExRes Shares and the other Transaction Documents, (iii) hold such Material Stockholder’s equity securities transactions contemplated hereby. The appointment of the Company and transfer, exercise or convert such equity securities, as the case may be, in accordance with the terms hereof, (iv) act on such Material Stockholder’s behalf in connection with all obligations and agreements of the Material Stockholders under the Transaction Documents, (v) amend, waive or otherwise change the terms or conditions of this Agreement and each other Transaction Document on behalf of such Material Stockholder, (vi) defend, settle and make payments to the Ticketmaster Indemnified Parties on behalf of such Material Stockholder in connection with any claim for indemnification made by any Ticketmaster Indemnified Party pursuant to Article X hereof and to initiate and prosecute any claim for indemnification made by or on behalf of such Material Stockholder pursuant to Article X hereof (and such Material Stockholder recognizes and acknowledges, for the benefit of Ticketmaster and the Surviving Corporation, that he, she or it shall have no independent right to pursue any such claim), (vii) receive any deliveries of the Merger Consideration (as adjusted pursuant hereto), or other amounts due to such Material Stockholder under the Transaction Documents, review and accept all calculations regarding such payments and negotiate any modifications thereto (and such Material Stockholder recognizes and acknowledges, for the benefit of Ticketmaster and the Surviving Corporation, that he, she or it shall have no independent right to pursue any claim regarding such payments, calculations or modifications), (viii) give and receive on behalf of the Material Stockholders any and all notices from or to any Material Stockholder or Stockholders under the Transaction Documents, (ix) if necessary or desirable, as determined by the Stockholders’ Representative in its sole discretion, incorporate corporations, organize partnerships, organize limited liability companies and take similar actions on behalf of the Material Stockholders and take all actions in connection therewith, and (x) otherwise exercise all rights of such Material Stockholder and otherwise act on behalf of such Material Stockholder under the Transaction Documents and in connection with any of the Transactions, in each case as if such Material Stockholder had personally done such act, and the Stockholders’ Representative hereby accepts such appointment. Any proceeds or other assets received by the Stockholders’ Representative from Ticketmaster, Merger Sub or the Company on behalf of the Material Stockholders (including the Initial Merger Consideration and the Subsequent Merger Consideration) shall be distributed to the Material Stockholders as promptly as practicable by the Stockholders’ Representative, in accordance with the terms and provisions of this Agreement and the other Transaction Documents. The death, incapacity, dissolution, liquidation, insolvency or bankruptcy of any Material Stockholder shall not terminate such appointment or the authority and agency of the Stockholders’ Representative. The powerattorney-ofin-attorney granted in this Article XI fact pursuant hereto is coupled with an interest and is irrevocable.
. The obligations of each Selling Stockholder pursuant to this Agreement: (bi) The Stockholders’ Representative shall will not be entitled terminated by operation of law, liquidation, dissolution, bankruptcy, insolvency or similar event with respect to rely, and shall be fully protected in relying, upon any statements furnished to it by any other Material Stockholder, the Company, Ticketmaster, Merger Sub such Selling Stockholder or any third Person proceeding in connection therewith, or any other evidence reasonably deemed event; and (ii) shall survive the delivery of an assignment by any Selling Stockholder of the Stockholders’ Representative whole or any fraction of its interest in any payment due to be reliable, and the Stockholders’ Representative shall be entitled to act on the advice of counsel selected by itit under this Agreement.
(c) The Stockholders’ Representative shall be entitled Exelon hereby accepts the foregoing appointment and agrees to retain counsel acceptable to it and to incur such expenses serve as the Stockholders’ Representative deems Representative, subject to be necessary or appropriate in connection with its performance the provisions hereof, for the period of its obligations under this Agreement time from and after the other Transaction Documents, and all such fees and date hereof without compensation except for the reimbursement from the Selling Stockholders of reasonable out of pocket expenses (including reasonable attorneys’ fees and expenses) incurred by the Stockholders’ Representative shall be a deducted from the Reserve Amount or otherwise shall be jointly and severally borne by each other Material Stockholder.
(d) The Material Stockholders hereby agree to jointly and severally indemnify the Stockholders’ Representative (Exelon in its capacity as such) against, and to hold the Stockholders’ Representative (in its capacity as such) harmless from, any and all Losses and other Liabilities of whatever kind which may at any time be imposed upon, incurred by or asserted against the Stockholders’ Representative in such capacity in any way relating to or arising out of its action or failures to take action pursuant to this Agreement or any other Transaction Document.
(e) TNSH, LLC shall be the initial Stockholders’ Representative and shall serve as the Stockholders’ Representative until his resignation, which resignation shall only be effective upon the selection of a new Stockholders’ Representative as provided in this Section 11(e). Upon the resignation of TNSH, LLC, the Material Stockholders holding a majority of the Common Stock on an as converted basis as of immediately prior to the Closing shall select a new Stockholders’ Representative. Each time a new Stockholders’ Representative is appointed pursuant to this Agreement, such Person, as a condition precedent to the effectiveness of such appointment, shall accept such position in writing and execute a joinder to this Agreement and other Transaction Documents to which the Stockholders’ Representative is a party, in each case in form and substance reasonably satisfactory to Ticketmaster.
(f) The provisions of this Article XI shall in no way impose any obligations on Ticketmaster or Merger Sub. In particular, notwithstanding any notice received by Ticketmaster or Merger Sub to the contrary, and absent bad faith or willful misconduct, Ticketmaster and Merger Sub (i) shall be fully protected in relying upon and shall be entitled to rely upon, and shall have no Liability to the Material Stockholders with respect to, actions, decisions and determinations of the Stockholders’ Representative and (ii) shall be entitled to assume that all actions, decisions and determinations of the Stockholders’ Representative are fully authorized by all of the Material Stockholders.
(g) The Reserve Amount shall be used by the Stockholders’ Representative to cover fees and expenses incurred by the Stockholders’ Representative in connection with his acting in such capacity, to cover fees and expenses payable in connection with the Transactions that arise or become due and payable after Closing and may be used for such other matters in connection with the Transactions as the Stockholders’ Representative may reasonably determine in his sole discretion. The Reserve Amount shall be held by the Stockholders’ Representative and each Material Stockholder shall be entitled to his, her or its pro-rata portion of the Reserve Amount when the Reserve Amount is distributed. The Reserve Amount shall be distributed to the Material Stockholders at such times, and in such amounts, as the Stockholders’ Representative reasonably determines in his sole discretion.
(h) The Stockholders’ Representative hereby represents and warrants to Ticketmaster and Merger Sub that (i) such Stockholders’ Representative has all requisite power and authority to execute and deliver this Agreement and each other Transaction Document to which it is a party and to perform its obligations hereunder and thereunder and to consummate the Transactions, and (ii) this Agreement has been, and each other Transaction Document to which it is a party will be, at or prior to the Closing, duly and validly executed and delivered by the Stockholders’ Representative and (assuming the due authorization, execution and delivery by the other parties hereto and thereto other than the Material Stockholders and the Company) this Agreement constitutes, and each other Transaction Document to which it is a party, when so executed and delivered will constitute, the legal, valid and binding obligations of the Stockholders’ Representative, enforceable against it in accordance with its terms, subject to the Bankruptcy and Equity Exception and (iii) none of the execution and delivery by the Stockholders’ Representative of this Agreement or the other Transaction Documents to which it is a party or compliance by the Stockholders’ Representative with any of the provisions hereof or thereof will conflict with, or result in any violation or breach of, conflict with or cause a default (with or without notice or lapse of time, or both) under, or give rise to a right of termination or cancellation or result in the creation of any Encumbrances upon any of the properties or assets of the Stockholders’ Representative under, (A) any provision of any Contract or Permit to which the Stockholders’ Representative is a party or by which any of the properties or assets of the Stockholders’ Representative are bound, (B) any Order of any Governmental Body applicable to the Stockholders’ Representative or by which any of the properties or assets of the Stockholders’ Representative are bound, or (C) any applicable Law and (iv) no Consent, Order or Permit is required on the part of the Stockholders’ Representative in connection with the execution and delivery of this Agreement or the Transaction Documents to which it is a party or the compliance by the Stockholders’ Representative with any of the provisions hereof or thereof.
Appears in 1 contract
The Stockholders Representative. (a) Each By the execution and delivery of the Material Stockholders does this Agreement, each Stockholder hereby irrevocably makeconstitutes and appoints Media/Communications Partners II Limited Partnership and Xxxx X Xxxxxxx XX, constitute and appoint the Stockholders’ Representative each of them acting singly, as his, her or its agenttrue and lawful agent and attorney-in-fact (together, the "Stockholders' Representative"), with full power of substitution to act in his, her or its name, place and stead, as such Material Stockholder’s attorney-in-fact, stead with respect to (i) execute and deliver all documents necessary or desirable to carry out the intent of the Transaction Documents (including in the name of, or on behalf of, such Material Stockholder), (ii) make all elections or decisions entered into in connection with this Agreement and the other Transaction Documents, (iii) hold such Material Stockholder’s equity securities of the Company and transfer, exercise or convert such equity securities, as the case may be, in accordance with the terms hereof, (iv) act on such Material Stockholder’s behalf in connection with all obligations and agreements of the Material Stockholders under the Transaction Documents, (v) amend, waive or otherwise change the terms or conditions of this Agreement and each other Transaction Document on behalf of such Material Stockholder, (vi) defend, settle and make payments to the Ticketmaster Indemnified Parties on behalf of such Material Stockholder in connection with any claim for indemnification made transactions contemplated by any Ticketmaster Indemnified Party pursuant to Article X hereof and to initiate and prosecute any claim for indemnification made by or on behalf of such Material Stockholder pursuant to Article X hereof (and such Material Stockholder recognizes and acknowledges, for the benefit of Ticketmaster and the Surviving Corporation, that he, she or it shall have no independent right to pursue any such claim), (vii) receive any deliveries of the Merger Consideration (as adjusted pursuant hereto), or other amounts due to such Material Stockholder under the Transaction Documents, review and accept all calculations regarding such payments and negotiate any modifications thereto (and such Material Stockholder recognizes and acknowledges, for the benefit of Ticketmaster and the Surviving Corporation, that he, she or it shall have no independent right to pursue any claim regarding such payments, calculations or modifications), (viii) give and receive on behalf of the Material Stockholders any and all notices from or to any Material Stockholder or Stockholders under the Transaction Documents, (ix) if necessary or desirable, as determined by the Stockholders’ Representative in its sole discretion, incorporate corporations, organize partnerships, organize limited liability companies and take similar actions on behalf of the Material Stockholders and take all actions in connection therewith, and (x) otherwise exercise all rights of such Material Stockholder and otherwise act on behalf of such Material Stockholder under the Transaction Documents and in connection with any of the Transactions, in each case as if such Material Stockholder had personally done such act, and the Stockholders’ Representative hereby accepts such appointment. Any proceeds or other assets received by the Stockholders’ Representative from Ticketmaster, Merger Sub or the Company on behalf of the Material Stockholders (including the Initial Merger Consideration and the Subsequent Merger Consideration) shall be distributed to the Material Stockholders as promptly as practicable by the Stockholders’ Representative, in accordance with the terms and provisions of this Agreement Agreement, and to act on its behalf in any dispute, litigation or arbitration involving this Agreement, and to do or refrain from doing all such further acts and things, and execute all such documents as the other Transaction Documents. The deathStockholders' Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, incapacityincluding, dissolutionwithout limitation, liquidationthe power:
(i) to waive any condition to the obligations of such Stockholder to consummate the transactions contemplated by this Agreement;
(ii) to execute and deliver all ancillary agreements, insolvency certificates and documents, and to make representations and warranties therein, on behalf of such Stockholder which the Stockholders' Representative deems necessary or bankruptcy appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to receive on behalf of, and to distribute (after payment of (A) any Material Stockholder shall not terminate such appointment unpaid expenses chargeable to the Stockholders or the authority Company prior to the Closing in connection with the transactions contemplated by this Agreement, including, without limitation any investment banking fee payable to Chase Securities Inc. by the Company and agency (B) amounts payable by the Stockholders pursuant to Section 2.3(b)), all amounts payable to such Stockholder under the terms of this Agreement; and
(iv) to do or refrain from doing any further act or deed on behalf of such Stockholder which the Stockholders’ Representative. The power-of-attorney granted ' Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Article XI is coupled with an interest Agreement, as fully and is irrevocablecompletely as such Stockholder could do if personally present.
(b) The appointment of the Stockholders’ ' Representative shall be entitled to rely, deemed coupled with an interest and shall be fully protected in relyingirrevocable, and Buyer, its affiliates and any other person may conclusively and absolutely rely, without inquiry, upon any statements furnished action of the Stockholders' Representative on behalf of the Stockholders in all matters referred to herein. All notices delivered by Buyer or the Company (following the Closing) to the Stockholders' Representative (whether pursuant hereto or otherwise) for the benefit of the Stockholders shall constitute notice to the Stockholders. The Stockholders' Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders' Representative believes to be in the best interest of the Stockholders and consistent with his obligations under this Agreement, but the Stockholders' Representative shall not be responsible to the Stockholders for any loss or damages it or they may suffer by any other Material Stockholder, reason of the Company, Ticketmaster, Merger Sub or any third Person or any other evidence reasonably deemed performance by the Stockholders’ ' Representative of its duties under this Agreement, other than loss or damage arising from willful violation of the law or gross negligence in the performance of his duties under this Agreement. Each Stockholder agrees to be reliable, indemnify and hold harmless the Stockholders’ ' Representative shall be entitled to act from any loss, damage or expense arising from the performance of its duties as the Stockholders' Representative hereunder, including without limitation the cost of legal counsel retained by the Stockholders' Representative on behalf of the advice Stockholders, but excluding any loss or damage arising from willful violation of counsel selected by itthe law or gross negligence in the performance of his duties under this Agreement.
(c) The All actions, decisions and instructions of the Stockholders’ ' Representative taken, made or given pursuant to the authority granted to the Stockholders' Representative pursuant to paragraph (a) above shall be entitled to retain counsel acceptable to it conclusive and to incur such expenses as the Stockholders’ Representative deems to be necessary or appropriate in connection with its performance of its obligations under this Agreement and the other Transaction Documentsbinding upon each Stockholder, and all such fees and expenses (including reasonable attorneys’ fees and expenses) incurred by no Stockholder shall have the Stockholders’ Representative shall be a deducted from the Reserve Amount right to object, dissent, protest or otherwise shall be jointly and severally borne by each other Material Stockholdercontest the same.
(d) The Material provisions of this Section 2.4 are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death or dissolutions, granted by the Stockholders hereby agree to jointly and severally indemnify the Stockholders’ ' Representative (in its capacity as such) againstand shall be binding upon the executors, heirs, legal representatives, successors and to hold the Stockholders’ Representative (in its capacity as such) harmless from, any and all Losses and other Liabilities assigns of whatever kind which may at any time be imposed upon, incurred by or asserted against the Stockholders’ Representative in each such capacity in any way relating to or arising out of its action or failures to take action pursuant to this Agreement or any other Transaction DocumentStockholder.
(e) TNSH, LLC shall be Buyer and the initial Stockholders’ Representative and shall serve as Company (following the Stockholders’ Representative until his resignation, which resignation shall only be effective upon the selection of a new Stockholders’ Representative as provided in this Section 11(e). Upon the resignation of TNSH, LLC, the Material Stockholders holding a majority of the Common Stock on an as converted basis as of immediately prior to the Closing shall select a new Stockholders’ Representative. Each time a new Stockholders’ Representative is appointed pursuant to this Agreement, such Person, as a condition precedent to the effectiveness of such appointment, shall accept such position in writing and execute a joinder to this Agreement and other Transaction Documents to which the Stockholders’ Representative is a party, in each case in form and substance reasonably satisfactory to Ticketmaster.
(fClosing) The provisions of this Article XI shall in no way impose any obligations on Ticketmaster or Merger Sub. In particular, notwithstanding any notice received by Ticketmaster or Merger Sub to the contrary, and absent bad faith or willful misconduct, Ticketmaster and Merger Sub (i) shall be fully protected in relying upon and shall be entitled to rely upon, conclusively on the instructions and shall have no Liability to the Material Stockholders with respect to, actions, decisions and determinations of the Stockholders’ ' Representative as to any actions required or permitted to be taken by the Stockholders or the Stockholders' Representative hereunder, and (ii) no party hereunder shall be entitled to assume that all actions, have any cause of action against any Buyer for any action taken by any of them in reliance upon the instructions or decisions and determinations of the Stockholders’ Representative are fully authorized by all of the Material Stockholders' Representative.
(g) The Reserve Amount shall be used by the Stockholders’ Representative to cover fees and expenses incurred by the Stockholders’ Representative in connection with his acting in such capacity, to cover fees and expenses payable in connection with the Transactions that arise or become due and payable after Closing and may be used for such other matters in connection with the Transactions as the Stockholders’ Representative may reasonably determine in his sole discretion. The Reserve Amount shall be held by the Stockholders’ Representative and each Material Stockholder shall be entitled to his, her or its pro-rata portion of the Reserve Amount when the Reserve Amount is distributed. The Reserve Amount shall be distributed to the Material Stockholders at such times, and in such amounts, as the Stockholders’ Representative reasonably determines in his sole discretion.
(h) The Stockholders’ Representative hereby represents and warrants to Ticketmaster and Merger Sub that (i) such Stockholders’ Representative has all requisite power and authority to execute and deliver this Agreement and each other Transaction Document to which it is a party and to perform its obligations hereunder and thereunder and to consummate the Transactions, and (ii) this Agreement has been, and each other Transaction Document to which it is a party will be, at or prior to the Closing, duly and validly executed and delivered by the Stockholders’ Representative and (assuming the due authorization, execution and delivery by the other parties hereto and thereto other than the Material Stockholders and the Company) this Agreement constitutes, and each other Transaction Document to which it is a party, when so executed and delivered will constitute, the legal, valid and binding obligations of the Stockholders’ Representative, enforceable against it in accordance with its terms, subject to the Bankruptcy and Equity Exception and (iii) none of the execution and delivery by the Stockholders’ Representative of this Agreement or the other Transaction Documents to which it is a party or compliance by the Stockholders’ Representative with any of the provisions hereof or thereof will conflict with, or result in any violation or breach of, conflict with or cause a default (with or without notice or lapse of time, or both) under, or give rise to a right of termination or cancellation or result in the creation of any Encumbrances upon any of the properties or assets of the Stockholders’ Representative under, (A) any provision of any Contract or Permit to which the Stockholders’ Representative is a party or by which any of the properties or assets of the Stockholders’ Representative are bound, (B) any Order of any Governmental Body applicable to the Stockholders’ Representative or by which any of the properties or assets of the Stockholders’ Representative are bound, or (C) any applicable Law and (iv) no Consent, Order or Permit is required on the part of the Stockholders’ Representative in connection with the execution and delivery of this Agreement or the Transaction Documents to which it is a party or the compliance by the Stockholders’ Representative with any of the provisions hereof or thereof.
Appears in 1 contract
Samples: Stock Purchase Agreement (Outdoor Communications Inc /De/)
