Appointment of the Representative. (a) In order to administer efficiently the determination of, amongst other items, the Merger Consideration and the Final Adjustment Amount and the defense and/or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, the Securityholders, by their adoption and approval of this Agreement, as well as, in certain cases, through separate instruments (including the Letters of Transmittal and Option Surrender Forms), irrevocably appoint the Representative as their exclusive agent, attorney in fact and representative (with full power of substitution in the premises), and, by its execution hereof, the Representative hereby accepts such appointment. (b) The Representative is hereby authorized (i) to take all action necessary in connection with the acceptance, rejection and determination of the Merger Consideration and the Final Adjustment Amount and the defense and/or settlement of any claims for Losses (including the power to compromise any indemnity claim on behalf of the Securityholders and to transact matters of litigation) for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, (ii) to give and receive all notices required to be given under this Agreement and the other agreements contemplated hereby to which all of the Securityholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative will deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power: (i) to pay any expenses of the Securityholders or the Representative from the Representative Expense Account; (ii) to execute and deliver all consents, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement; (iii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate after the Closing; (iv) to do or refrain from doing any further act or deed on behalf of the Securityholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Securityholders could do if personally present; and (v) to receive service of process in connection with any claims under this Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Securityholders, except as expressly provided herein and in the Escrow Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement (other than the Escrow Agreement), schedule, exhibit or the Disclosure Schedules. (c) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Shareholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the voting power represented by the Company Shares issued and outstanding immediately prior to the Effective Time, will select another representative to fill such vacancy and such substituted representative will be deemed to be the Representative for all purposes of this Agreement. (d) The Representative shall be entitled to: (i) rely upon the Percentage Schedule, (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 Securityholder or other party. All decisions and actions by the Representative, including the defense or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, will be binding upon all of the Securityholders, and no Securityholder will have the right to object, dissent, protest or otherwise contest the same. (e) Parent will be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the Final Adjustment Amount and the settlement or compromise of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof and any other actions required to be taken by the Representative hereunder, and no party hereunder or Shareholder will have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the instructions or decisions of the Representative. (f) The provisions of this Section 12.20 and the powers, immunities and rights to indemnification granted to the Representative and the Advisory Group hereunder: (i) are independent and severable, (ii) are irrevocable and coupled with an interest and shall survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder, (iii) will be enforceable notwithstanding any rights or remedies that any Shareholder may have in connection with the transactions contemplated by this Agreement and (iv) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Fund. (g) The provisions of this Section 12.20 will be binding upon the heirs, legal representatives, successors and assigns of each Securityholders, and any references in this Agreement to a Securityholder or the Securityholders will mean and include the successors to the rights of the Securityholders hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise. (h) Certain Securityholders have entered into a letter agreement with the Representative to provide direction to the Representative in connection with the performance of its services under this Agreement and the Escrow Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative (together with its members, managers, directors, officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Representative Group”) shall be liable for any liability, loss, damage, penalty, fine, cost or expense incurred by the Representative while acting in good faith and in the exercise of its good faith judgment and arising out of or in connection with the acceptance or administration of its duties or the exercise of its rights hereunder (it being understood that any act done or omitted pursuant to the advice of counsel, public accountants or other independent experts experienced in the matter at issue shall be conclusive evidence of such good faith). Each Securityholder shall, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger, indemnify, defend and hold harmless the Representative Group and its successors and assigns from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs, fees, judgments, amounts paid in settlement and expenses (including attorneys’ fees and court and other skilled professionals’ costs and in connection with seeking recovery from insurers) (collectively, “Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Representative Group pursuant to the terms of this Agreement, in each case as such Representative Loss is incurred or suffered. The Representative shall be entitled to recover any Representative Losses reasonably incurred by the Representative in connection with actions taken by the Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and other skilled professionals and the incurring of legal fees and costs), without the requirement of any consent or approval by Parent or any other Person. All of the indemnities and immunities granted to the Representative Group under this Agreement shall survive the resignation or removal of Representative or any member of the Advisory Group and the Merger and/or any termination of this Agreement and the Escrow Agreement. (i) The Securityholders acknowledge that the Representative 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 administration of its duties. The Representative Losses shall be satisfied (i) from the Representative Expense Account, (ii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i), to the extent of any amount of the Escrow Fund that has not been used to satisfy indemnification claims pursuant to Article VIII and that is otherwise to be released to the Securityholders under Sections 1.10(c)(i), 1.10(c)(ii), 1.11(c), or 1.11(d) and (iii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i) and (ii), from each Securityholder, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger (including, with respect to the Transferring Sellers, the value (based on the Parent Price Per Share) of the shares of Parent Common Stock received pursuant to the Common Stock Purchase Agreement). As soon as practicable after the date on which the final obligation of the Representative under this Agreement and the Escrow Agreement have been discharged, the Representative shall remit any amounts remaining in the Representative Escrow Account to the Paying Agent (or, to the Surviving Corporation or such Person as designated by Parent). The Paying Agent shall promptly distribute such amounts to the Securityholders based on their respective Indemnification Pro Rata Percentages; provided, that, any amount payable to an Employee holder of an In-the-Money-Option shall be distributed to the Surviving Corporation who will disburse such amount, net of applicable Tax withholdings, through the Company’s payroll.
Appears in 1 contract
Sources: Merger Agreement (Datalink Corp)
Appointment of the Representative. (a) In order to administer efficiently the determination of, amongst other items, and payment of the Merger Consideration (and the Final Adjustment Amount any adjustment thereto pursuant to Section 2.05 hereof) and the defense and/or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled or actions related to indemnification pursuant to Section 8.02 hereof, the Securityholders, by their adoption and approval of this Agreement, as well aseffective upon and by virtue of the Requisite Stockholder Approval, and without any further act of any of the Company Stockholders (provided the appointment contemplated by this Section 9.17(a) will be confirmed in certain cases, through separate instruments (including the Letters of Transmittal and Option Surrender FormsStockholder Confirmations), irrevocably appoint the Representative is hereby irrevocably appointed as their exclusive the agent, attorney in fact and representative (with full power of substitution in the premises)) of all of the Company Stockholders for all purposes under this Agreement, and, by its execution hereof, the Representative hereby accepts such appointment.
(b) The Representative is hereby authorized (and the Stockholder Confirmations will confirm that the Representative is authorized) (i) to take all action necessary in connection with the acceptance, rejection rejection, determination and determination payment of the Merger Consideration (and the Final Adjustment Amount any adjustment thereto pursuant to Section 2.05 hereof) and the defense and/or settlement of any claims for Losses (including the power or actions related to compromise any indemnity claim on behalf of the Securityholders and to transact matters of litigation) for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereofthis Agreement, (ii) to give and receive all notices required to be given under this Agreement, the Escrow Agreement and the other agreements contemplated hereby to which all of the Securityholders Company Stockholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative will shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including including, without limitation, the power:
(i) to execute and deliver the Escrow Agreement and any amendments thereto as the representative of the Company Stockholders; to execute any instructions or directions to the Escrow Agent with respect to disbursements or other matters thereunder; to pay any expenses of the Securityholders Company Stockholders or the Representative from the Adjustment Escrow Amount or the Representative Expense AccountHoldback Amount; and to take such further actions under the Escrow Agreement as the Representative deems to be necessary or appropriate;
(ii) to execute and deliver all consentsamendments, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate appropriate, whether prior to, at or after the Closing;
(iv) to receive funds, make payments of funds, and give receipts for funds;
(v) to receive funds for the payment of expenses of the Company Stockholders (including, without limitation, the Representative Holdback Amount), to deposit such funds in such accounts as the Representative deems appropriate and to apply such funds in payment for such expenses;
(vi) to do or refrain from doing any further act or deed on behalf of the Securityholders Company Stockholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Securityholders Company Stockholders could do if personally present; and
(vvii) to receive service of process in connection with with, and to defend and/or settle, any claims or actions under this Agreement.
(c) The Representative requires that a portion of the Merger Consideration in an amount equal to the Representative Holdback Amount be withheld by (and deposited with) the Representative, on behalf of the Company Stockholders, to satisfy potential future obligations of the Company Stockholders; provided that the portion of the Representative Holdback Amount delivered to, and held by, the Representative on behalf of each Company Stockholder shall be determined according to the aggregate Per Share Portions represented by such Company Stockholder’s Company Stock and Options. Notwithstanding The Representative Holdback Amount shall be retained by the foregoingRepresentative for such time as the Representative shall determine in its sole discretion; provided that the Representative shall not distribute any portion of the Representative Holdback Amount to the Company Stockholders until the earlier of (i) the six (6)-month anniversary of the Closing and (ii) if a relevant taxing authority of the PRC makes a final, non-appealable determination or assessment that the Merger is taxable under Public Notice 7 prior to such six (6)-month anniversary of the Closing, the date on which the Representative pays the applicable Tax so determined or assessed under Public Notice 7; provided, further that, notwithstanding the foregoing in this Section 9.17(c), if a relevant taxing authority of the PRC makes a formal determination or assessment that the Merger is taxable under Public Notice 7 prior to the six (6)-month anniversary of the Closing and the Representative appeals such determination or assessment without paying the applicable Tax, the Representative shall have no obligation to act on behalf of the Securityholders, except as expressly provided herein and in the Escrow Agreement, and for purposes of clarity, there are no obligations not distribute any portion of the Representative in any ancillary agreement (other than Holdback Amount to the Escrow Agreement), schedule, exhibit Company Stockholders until the date on which the Representative pays the applicable Tax determined or assessed under Public Notice 7 or the Disclosure SchedulesRepresentative’s appeal is ruled (in a final, non-appealable ruling) in the Representative’s favor. Any remaining amounts from the Representative Holdback Amount returned to the Company Stockholders shall be distributed to the Company Stockholders based upon the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder. For the avoidance of doubt, nothing in this Section 9.17(c) shall limit the Representative’s obligations under Section 6.10(e).
(cd) If the Representative needs to make any payments to Option Holders following the Closing, Parent agrees to cause the Company and its Subsidiaries to make such payments through the Company’s or such Subsidiaries’ payroll systems after the Company or such Subsidiary’s receipt from (or withholding of payment to) the Representative of an equivalent amount.
(e) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Shareholders Company Stockholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the voting power represented by the Company Shares Common Stock issued and outstanding immediately prior to the Effective Time, will Time shall select another representative to fill such vacancy vacancy, and such substituted representative will shall be deemed to be the Representative for all purposes of this Agreement.
(df) The All decisions, actions and instructions by the Representative shall be entitled to: (i) rely upon the Percentage Schedule, (ii) rely upon any signature believed by it to be genuine, conclusive and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Securityholder or other party. All decisions and actions by the Representative, including the defense or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, will be binding upon all of the SecurityholdersCompany Stockholders, and no Securityholder will Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same. No Party or Company Stockholder shall have any cause of action against the Representative for any action taken or not taken, decision made or instruction given by the Representative under this Agreement, except for Fraud by the Representative.
(eg) Parent will and Merger Sub shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination and payment of the Merger Consideration (and the Final Adjustment Amount and the settlement or compromise of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification adjustment thereto pursuant to Section 8.02 hereof 2.05 hereof) and any other actions required to be taken by the Representative hereunderhereunder as the act of each Company Stockholder in all matters referred to herein, and no party hereunder Party or Shareholder will Company Stockholder shall have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the written instructions or decisions of the Representative.
(fh) The provisions of this Section 12.20 and the powers, immunities and rights to indemnification granted to the Representative and the Advisory Group hereunder: (i) 9.17 are independent and severable, (ii) are irrevocable and coupled with an interest and shall survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder, (iii) will be enforceable notwithstanding any rights or remedies that any Shareholder Company Stockholder may have in connection with the transactions contemplated by this Agreement and (iv) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow FundAgreement.
(gi) The provisions of this Section 12.20 will 9.17 shall be binding upon the heirs, legal representatives, successors and assigns of each SecurityholdersCompany Stockholder, and any references in this Agreement to a Securityholder or the Securityholders will Company Stockholder shall mean and include the successors to the rights of the Securityholders Company Stockholders hereunder, whether pursuant to testamentary disposition, the Laws laws of descent and distribution or otherwise.
(hj) Certain Securityholders have entered into a letter agreement with the Representative to provide direction to All reasonable fees and expenses incurred by the Representative in connection with the performance of its services under this Agreement shall be paid by the Company Stockholders on a pro rata basis based on the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder; provided that the Representative shall first make payment of such fees and expenses from the Representative Holdback Amount and the Representative shall be authorized to withhold from any distribution from the Adjustment Escrow Agreement (Account any amounts reasonably anticipated to be necessary to pay for such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither reasonable fees and expenses in excess of the Representative Holdback Amount.
(together with its members, managers, directors, officers, contractors, agents and employeesk) nor any member of the Advisory Group (collectively, the “Representative Group”) The Company Stockholders shall be liable for any liability, loss, damage, penalty, fine, cost or expense incurred by the Representative while acting in good faith and in the exercise of its good faith judgment and arising out of or in connection with the acceptance or administration of its duties or the exercise of its rights hereunder (it being understood that any act done or omitted pursuant to the advice of counsel, public accountants or other independent experts experienced in the matter at issue shall be conclusive evidence of such good faith). Each Securityholder shall, severally and not jointly and (in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Mergeraccordance with their Per Share Portions), indemnify, defend indemnify and hold harmless the Representative Group and its successors and assigns from and against against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, demands, suits, actions, causes of actiondamages and expenses, losses, damages, obligations, liabilities, costs, fees, judgments, amounts paid in settlement and expenses (including reasonable attorneys’ fees and court and other skilled professionals’ costs disbursements, arising out of and in connection with seeking recovery from insurers) its activities as the Representative under this Agreement, the Escrow Agreement and the other agreements contemplated hereby (collectively, “Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Representative Group pursuant to the terms of this Agreement), in each case as such Representative Loss is incurred suffered or suffered. The incurred; provided, that in the event that it is finally adjudicated that a Representative shall be entitled to recover any Representative Losses reasonably incurred Loss was caused by Fraud by the Representative in connection with actions taken by the Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and other skilled professionals and the incurring of legal fees and costs)Representative, without the requirement of any consent or approval by Parent or any other Person. All of the indemnities and immunities granted to the Representative Group under this Agreement shall survive the resignation or removal of Representative or any member of the Advisory Group and the Merger and/or any termination of this Agreement and the Escrow Agreement.
(i) The Securityholders acknowledge that the Representative shall not be required reimburse the Company Stockholders the amount of such indemnified Representative Loss attributable 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 administration of its dutiessuch Fraud. The Representative Losses shall be satisfied (i) first from the Representative Expense AccountHoldback Amount and then, (ii) to the extent the amount of the Representative Losses exceeds amounts amount available to the Representative under (i), to the extent of any amount of the Escrow Fund that has not been used to satisfy indemnification claims pursuant to Article VIII and that is otherwise to be released to the Securityholders under Sections 1.10(c)(i), 1.10(c)(ii), 1.11(c), or 1.11(d) and (iii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i) and (ii)Holdback Amount, from each Securityholderthe Company Stockholders, severally and not jointly and (in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger (including, accordance with respect to the Transferring Sellers, the value (based on the Parent Price their Per Share) of the shares of Parent Common Stock received pursuant to the Common Stock Purchase AgreementShare Portions). As soon as practicable after the date on which the final obligation of the Representative under this Agreement and the Escrow Agreement have been discharged, the Representative shall remit any amounts remaining in the Representative Escrow Account to the Paying Agent (or, to the Surviving Corporation or such Person as designated by Parent). The Paying Agent shall promptly distribute such amounts to the Securityholders based on their respective Indemnification Pro Rata Percentages; provided, that, any amount payable to an Employee holder of an In-the-Money-Option shall be distributed to the Surviving Corporation who will disburse such amount, net of applicable Tax withholdings, through the Company’s payroll.
Appears in 1 contract
Appointment of the Representative. (a) In order to administer efficiently the determination of, amongst other items, the Merger Consideration and the Final Adjustment Amount and the defense and/or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, the Securityholders, by their adoption and approval of this Agreement, as well as, in certain cases, through separate instruments (including the Letters of Transmittal and Option Surrender Forms), You hereby irrevocably appoint the Representative as their exclusive your representative, attorney-in-fact and agent, attorney in fact and representative (with full power of substitution to act in the premises)name, andplace and stead of you in accordance with the terms of the Merger Agreement and to act on your behalf in any amendment of or action involving the Merger Agreement, by its execution hereofincluding initiating, the Representative hereby accepts such appointment.
(b) The Representative is hereby authorized (i) to take all action necessary prosecuting, defending, negotiating, settling or otherwise dealing with claims on behalf of or against you arising under or in connection with the acceptanceMerger Agreement, rejection and determination of the Merger Consideration and the Final Adjustment Amount and the defense and/or settlement of any claims for Losses (including the power to compromise any indemnity claim on behalf of the Securityholders and to transact matters of litigation) for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, (ii) to give and receive all notices required to be given under this Paying Agent Agreement and the other agreements contemplated hereby to which all of the Securityholders are subjectEscrow Agreement or any transactions or matters related thereto, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents documents, as the Representative will shall deem necessary or appropriate in connection conjunction with any of the transactions contemplated by this Agreementhereby, including the power:
(i) to pay any expenses of the Securityholders or the Representative from the Representative Expense Account;
(iia) to execute and deliver, and administer all matters pertaining to performance under, the Paying Agent Agreement and the Escrow Agreement; and
(b) to take all action necessary or desirable in connection with the waiver of any condition to the obligations of HealthPocket to consummate the transactions contemplated by the Merger Agreement, the Paying Agent Agreement and the Escrow Agreement; and
(c) to negotiate, execute and deliver all consentsancillary agreements, statements, certificates, statements, notices, approvals, extensions, waivers, ancillary agreementsundertakings, stock powers, certificates amendments and other documents that the Representative deems necessary required or appropriate permitted to be given in connection with the consummation of the transactions contemplated by this the Merger Agreement;, the Paying Agent Agreement and the Escrow Agreement; and
(iiid) to execute give and deliver receive all amendments notices and waivers communications to this be given or received under the Merger Agreement, the Paying Agent Agreement that and the Representative deems necessary or appropriate after Escrow Agreement and to receive service of process in connection with any claims under the Closing;Merger Agreement and the transactions contemplated thereby; and
(ive) to take all actions that, under the Merger Agreement, the Paying Agent Agreement and the Escrow Agreement and pursuant to the transactions contemplated thereby, may be taken by you (or the Representative) and to do or refrain from doing any further act or deed on your behalf of the Securityholders that the Representative deems necessary or appropriate in its the Representative’s sole discretion relating to the subject matter of this the Merger Agreement and the transactions contemplated hereby as fully and completely as the Securityholders you could do if personally present; and
(v) to receive service of process in connection with any claims under this Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Securityholders, except as expressly provided herein and in the Escrow Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement (other than the Escrow Agreement), schedule, exhibit or the Disclosure Schedules.
(c) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Shareholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the voting power represented by the Company Shares issued and outstanding immediately prior to the Effective Time, will select another representative to fill such vacancy and such substituted representative will be deemed to be the Representative for all purposes of this Agreement.
(d) The Representative shall be entitled to: (i) rely upon the Percentage Schedule, (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 Securityholder or other party. All decisions and actions by the Representative, including the defense or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, will be binding upon all of the Securityholders, and no Securityholder will have the right to object, dissent, protest or otherwise contest the same.
(e) Parent will be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the Final Adjustment Amount and the settlement or compromise of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof and any other actions required to be taken by the Representative hereunder, and no party hereunder or Shareholder will have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the instructions or decisions of the Representative.
(f) The provisions of this Section 12.20 and the powers, immunities and rights to indemnification granted to the Representative and the Advisory Group hereunder: (i) are independent and severable, (ii) are irrevocable and coupled with an interest and shall survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder, (iii) will be enforceable notwithstanding any rights or remedies that any Shareholder may have in connection with the transactions contemplated by this Agreement and (iv) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Fund.
(g) The provisions of this Section 12.20 will be binding upon the heirs, legal representatives, successors and assigns of each Securityholders, and any references in this Agreement to a Securityholder or the Securityholders will mean and include the successors to the rights of the Securityholders hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
(h) Certain Securityholders have entered into a letter agreement with the Representative to provide direction to the Representative in connection with the performance of its services under this Agreement and the Escrow Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative (together with its members, managers, directors, officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Representative Group”) shall be liable for any liability, loss, damage, penalty, fine, cost or expense incurred by the Representative while acting in good faith and in the exercise of its good faith judgment and arising out of or in connection with the acceptance or administration of its duties or the exercise of its rights hereunder (it being understood that any act done or omitted pursuant to the advice of counsel, public accountants or other independent experts experienced in the matter at issue shall be conclusive evidence of such good faith). Each Securityholder shall, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger, indemnify, defend and hold harmless the Representative Group and its successors and assigns from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs, fees, judgments, amounts paid in settlement and expenses (including attorneys’ fees and court and other skilled professionals’ costs and in connection with seeking recovery from insurers) (collectively, “Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Representative Group pursuant to the terms of this Agreement, in each case as such Representative Loss is incurred or suffered. The Representative shall be entitled to recover any Representative Losses reasonably incurred by the Representative in connection with actions taken by the Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and other skilled professionals and the incurring of legal fees and costs), without the requirement of any consent or approval by Parent or any other Person. All of the indemnities and immunities granted to the Representative Group under this Agreement shall survive the resignation or removal of Representative or any member of the Advisory Group and the Merger and/or any termination of this Agreement and the Escrow Agreement.
(i) The Securityholders acknowledge that the Representative 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 administration of its duties. The Representative Losses shall be satisfied (i) from the Representative Expense Account, (ii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i), to the extent of any amount of the Escrow Fund that has not been used to satisfy indemnification claims pursuant to Article VIII and that is otherwise to be released to the Securityholders under Sections 1.10(c)(i), 1.10(c)(ii), 1.11(c), or 1.11(d) and (iii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i) and (ii), from each Securityholder, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger (including, with respect to the Transferring Sellers, the value (based on the Parent Price Per Share) of the shares of Parent Common Stock received pursuant to the Common Stock Purchase Agreement). As soon as practicable after the date on which the final obligation of the Representative under this Agreement and the Escrow Agreement have been discharged, the Representative shall remit any amounts remaining in the Representative Escrow Account to the Paying Agent (or, to the Surviving Corporation or such Person as designated by Parent). The Paying Agent shall promptly distribute such amounts to the Securityholders based on their respective Indemnification Pro Rata Percentages; provided, that, any amount payable to an Employee holder of an In-the-Money-Option shall be distributed to the Surviving Corporation who will disburse such amount, net of applicable Tax withholdings, through the Company’s payroll.
Appears in 1 contract
Sources: Merger Agreement (Health Insurance Innovations, Inc.)
Appointment of the Representative. (a) In order Representative hereby agrees to administer efficiently serve as the determination of, amongst other items, representative of the Merger Consideration Equityholders pursuant to this Section 8.8 and a Representative Agreement substantially in the Final Adjustment Amount form attached hereto as Exhibit E (the “Representative Agreement”). Representative shall have the full power and authority to make all decisions relating to the defense and/or settlement of any claims for Losses for which the Parent any Kenexa Indemnified Parties Party may claim to be entitled to indemnification indemnity pursuant to this Article VIII or Section 5.11, all decisions and actions relating to the adjustment of the Total Merger Consideration pursuant to Section 8.02 hereof2.13, the Securityholders, by their adoption and approval of this Agreement, all decisions as well as, in certain cases, through separate instruments (including the Letters of Transmittal and Option Surrender Forms), irrevocably appoint the Representative as their exclusive agent, attorney in fact and representative (with full power of substitution in the premises), and, by its execution hereof, the Representative hereby accepts such appointment.
(b) The Representative is hereby authorized (i) to take all action necessary in connection with the acceptance, rejection and determination of the Merger Consideration and the Final Adjustment Amount and the defense and/or settlement of any claims for Losses (including the power to compromise any indemnity claim on behalf of the Securityholders and to transact matters of litigation) for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, (ii) to give and receive all notices required to be given under this Agreement and the other agreements contemplated hereby to which all of the Securityholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative will deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to pay any expenses of the Securityholders or the Representative disbursements from the Representative Expense Account;
(ii) to execute General Escrow Account and deliver all consents, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate after the Closing;
(iv) to do or refrain from doing any further act or deed on behalf of the Securityholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Securityholders could do if personally present; and
(v) to receive service of process in connection with any claims under this Agreement. Notwithstanding the foregoing, the Representative shall have no obligation otherwise to act on behalf of the SecurityholdersEquityholders in all respects with respect to this Agreement and the other Transaction Documents, except as expressly provided herein and in including the Escrow Agreement, and for purposes amendment or termination of clarity, there are no obligations of the Representative in any ancillary agreement (other than the Escrow Agreement), schedule, exhibit or the Disclosure Schedules.
(c) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Shareholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the voting power represented by the Company Shares issued and outstanding immediately prior to the Effective Time, will select another representative to fill such vacancy and such substituted representative will be deemed to be the Representative for all purposes of this Agreement.
(d) The Representative shall be entitled to: (i) rely upon the Percentage Schedule, (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 Securityholder or other partyagreements. All decisions and actions by the Representative, including the defense or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, will Representative shall be binding upon all of the SecurityholdersEquityholders, and no Securityholder will Equityholder shall have the right to objectobject to, dissentdissent from, protest or otherwise contest the same. In the event of the death, incapacity or resignation of the Representative, a successor Representative shall be appointed in accordance with the provisions of the Representative Agreement.
(eb) Parent will be able Neither Parent, Kenexa Technology, Acquisition Sub nor the Surviving Corporation shall have the right to rely conclusively on the instructions and decisions of the Representative as object to, protest or otherwise contest any matter related to the determination of the Merger Consideration and the Final Adjustment Amount and the settlement or compromise of any claims procedures for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof and any other actions required to be action being taken by the Representative hereunder, and no party hereunder or Shareholder will have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the instructions or decisions of the Representative.
(f) The provisions of this Section 12.20 and the powers, immunities and rights to indemnification granted to as between the Representative and the Advisory Group hereunder: Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation hereby waive any claims they may have or assert, including those that may arise in the future, against either the Representative or any of its Affiliates that relate to the Representative’s role as such, including any claims for any action or inaction taken or not taken by such Representative in connection herewith.
(ic) are independent and severable, (ii) are irrevocable and coupled with an interest and shall survive the death, incompetence, bankruptcy or liquidation Each Equityholder that accepts payment of any consideration in respect of the respective SecurityholderMerger as contemplated herein shall be deemed, (iii) will be enforceable notwithstanding any rights by such acceptance of payment, or remedies that any Shareholder may have in connection with the transactions contemplated by this Agreement and (iv) shall survive the delivery of an assignment by any Securityholder his, her or its execution of the whole Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have agreed that the provisions of this Article VIII shall be binding upon such Equityholder and the successors and assigns of such Equityholder.
(d) In addition, each Equityholder that accepts payment of any fraction consideration in respect of the Merger as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have acknowledged and agreed that neither he, she or it nor any of his, her or its interest respective Affiliates will have any claims or rights to contribution or indemnity from Parent, Kenexa Technology, Acquisition Sub, the Company, the Surviving Corporation or any of its Subsidiaries or any of the respective Affiliates of the foregoing Persons with respect to any amounts paid by any Equityholder pursuant to this Article VIII or Section 5.11 or any liabilities that such Equityholder may have for actual fraud, intentional misrepresentation or active concealment, provided, that nothing contained in this Section 8.8(d) shall be deemed to constitute a waiver or release by any Person of any rights to indemnification from the Escrow FundCompany or the Surviving Corporation pursuant to the DGCL or the Certificate of Incorporation or bylaws of the Company or any applicable policy of director and officer liability insurance.
(ge) The provisions of this Section 12.20 will be binding upon the heirsAny notice or communication delivered by Parent, legal representativesKenexa Technology, successors and assigns of each Securityholders, and any references in this Agreement to a Securityholder Acquisition Sub or the Securityholders will mean and include the successors to the rights of the Securityholders hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
(h) Certain Securityholders have entered into a letter agreement with the Representative to provide direction Surviving Corporation to the Representative in connection with the performance of its services under this Agreement shall, as between Parent, Kenexa Technology, Acquisition Sub and the Escrow Agreement (such SecurityholdersSurviving Corporation, including their individual representativeson the one hand, collectively hereinafter referred and the Equityholders, on the other hand, be deemed to as have been delivered to all Equityholders. Parent, Kenexa Technology, Acquisition Sub and the “Advisory Group”). Neither the Representative (together with its members, managers, directors, officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Representative Group”) shall be liable for any liability, loss, damage, penalty, fine, cost or expense incurred by the Representative while acting in good faith and in the exercise of its good faith judgment and arising out of or in connection with the acceptance or administration of its duties or the exercise of its rights hereunder (it being understood that any act done or omitted pursuant to the advice of counsel, public accountants or other independent experts experienced in the matter at issue shall be conclusive evidence of such good faith). Each Securityholder shall, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger, indemnify, defend and hold harmless the Representative Group and its successors and assigns from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs, fees, judgments, amounts paid in settlement and expenses (including attorneys’ fees and court and other skilled professionals’ costs and in connection with seeking recovery from insurers) (collectively, “Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Representative Group pursuant to the terms of this Agreement, in each case as such Representative Loss is incurred or suffered. The Representative Surviving Corporation shall be entitled to recover rely exclusively upon any Representative Losses reasonably incurred communication or writings given or executed by the Representative in connection with actions taken by the Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel any claims for indemnity and other skilled professionals and the incurring of legal fees and costs), without the requirement of any consent or approval by Parent or any other Person. All of the indemnities and immunities granted to the Representative Group under this Agreement shall survive the resignation or removal of Representative or any member of the Advisory Group and the Merger and/or any termination of this Agreement and the Escrow Agreement.
(i) The Securityholders acknowledge that the Representative shall not be required to expend liable in any manner whatsoever for any action taken or risk its own funds not taken in reliance upon the actions taken or otherwise incur any financial liability in not taken or communications or writings given or executed by the exercise or performance of any of its powersRepresentative. Parent, rightsKenexa Technology, duties or privileges or administration of its duties. The Representative Losses shall be satisfied (i) from the Representative Expense Account, (ii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i), to the extent of any amount of the Escrow Fund that has not been used to satisfy indemnification claims pursuant to Article VIII Acquisition Sub and that is otherwise to be released to the Securityholders under Sections 1.10(c)(i), 1.10(c)(ii), 1.11(c), or 1.11(d) and (iii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i) and (ii), from each Securityholder, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger (including, with respect to the Transferring Sellers, the value (based on the Parent Price Per Share) of the shares of Parent Common Stock received pursuant to the Common Stock Purchase Agreement). As soon as practicable after the date on which the final obligation of the Representative under this Agreement and the Escrow Agreement have been discharged, the Representative shall remit any amounts remaining in the Representative Escrow Account to the Paying Agent (or, to the Surviving Corporation or such Person as designated by Parent). The Paying Agent shall promptly distribute such amounts to the Securityholders based on their respective Indemnification Pro Rata Percentages; provided, that, any amount payable to an Employee holder of an In-the-Money-Option shall be distributed entitled to disregard any notices or communications given or made by the Surviving Corporation who will disburse such amount, net of applicable Tax withholdings, Equityholders in connection with any claims for indemnity unless given or made through the Company’s payrollRepresentative.
Appears in 1 contract
Sources: Merger Agreement (Kenexa Corp)
Appointment of the Representative. (a) In order to administer efficiently the determination of, amongst Each Equityholder other items, the Merger Consideration and the Final Adjustment Amount and the defense and/or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, the Securityholders, by their adoption and approval of this Agreement, as well as, in certain cases, through separate instruments (including the Letters of Transmittal and Option Surrender Forms), than JMI hereby irrevocably appoint appoints the Representative as their exclusive such Equityholder’s true and lawful attorney-in-fact, proxy and agent, attorney in fact and representative (with full power powers of substitution and resubstitution, in the premises)such Equityholder’s name, andplace and stead, by its execution hereofin any and all capacities, the Representative hereby accepts such appointment.
(b) The Representative is hereby authorized (i) to take all action necessary in connection with the acceptance, rejection and determination of the Merger Consideration and the Final Adjustment Amount and the defense and/or settlement of any claims for Losses (including the power to compromise any indemnity claim on behalf of the Securityholders and to transact matters of litigation) for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, (ii) to give and receive all notices required to be given under this Agreement and the other agreements contemplated hereby to which all of the Securityholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative will deem necessary or appropriate in connection with the transactions contemplated by this Agreement, granting unto said attorney-in-fact, proxy and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with this Agreement and the transactions contemplated by this Agreement as fully to all intents and purposes as such Equityholder might or could do in person, including for the powerpurposes of:
(i) to pay taking any expenses action on behalf of the Securityholders Equityholders or any individual Equityholder other than JMI that may be necessary or desirable, as determined by the Representative from in its sole discretion, in connection with the Representative Expense Accountindemnification provisions set forth in Article X and the amendment of this Agreement in accordance with Section 11.2;
(ii) to execute and deliver all consentstaking any action on behalf of the Equityholders or any individual Equityholder other than JMI that may be necessary or desirable, waivers, ancillary agreements, stock powers, certificates and documents that as determined by the Representative deems necessary or appropriate in its sole discretion, in connection with negotiating or entering into settlements, resolutions and compromises with respect to the consummation of the transactions contemplated by adjustments or consideration payable under this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that accepting notices on behalf of the Representative deems necessary Equityholders or appropriate after the Closingany individual Equityholder other than JMI in accordance with Section 11.4;
(iv) to do or refrain from doing any further act or deed executing and delivering, on behalf of the Securityholders that Equityholders or any individual Equityholder other than JMI, any notices, documents or certificates to be executed by the Representative deems necessary Equityholders or appropriate any individual Equityholder other than JMI in its sole discretion relating to the subject matter of connection with this Agreement as fully and completely as the Securityholders could do if personally presenttransactions contemplated by this Agreement; and
(v) to receive service granting any consent or approval on behalf of process in connection with the Equityholders or any claims individual Equityholder other than JMI under this Agreement. Notwithstanding As the foregoingrepresentative of the Equityholders or any individual Equityholder other than JMI under this Agreement, the Representative shall act as the representative, agent and proxy for each Equityholder other than JMI and shall have no obligation authority to act on behalf of the Securityholders, except as expressly provided herein and bind each Equityholder other than JMI in the Escrow accordance with this Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement (other than the Escrow Agreement), schedule, exhibit or the Disclosure Schedules.
(c) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Shareholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the voting power represented by the Company Shares issued and outstanding immediately prior to the Effective Time, will select another representative to fill such vacancy and such substituted representative will be deemed to be the Representative for all purposes of this Agreement.
(d) The Representative Equityholder shall be entitled to: (i) rely upon the Percentage Schedule, (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 Securityholder or other party. All decisions and actions by the Representative, including the defense or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, will be binding upon all of the Securityholders, and no Securityholder will have the right to object, dissent, protest or otherwise contest the same.
(e) Parent will be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the Final Adjustment Amount and the settlement or compromise of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof and any other actions required to be taken by the Representative hereunder, and no party hereunder or Shareholder will have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the instructions or decisions of the Representative.
(f) The provisions of this Section 12.20 and the powers, immunities and rights to indemnification granted to the Representative and the Advisory Group hereunder: (i) are independent and severable, (ii) are irrevocable and coupled with an interest and shall survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder, (iii) will be enforceable notwithstanding any rights or remedies that any Shareholder may have in connection with the transactions contemplated by this Agreement and (iv) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Fund.
(g) The provisions of this Section 12.20 will be binding upon the heirs, legal representatives, successors and assigns of each Securityholders, and any references in this Agreement to a Securityholder or the Securityholders will mean and include the successors to the rights of the Securityholders hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
(h) Certain Securityholders have entered into a letter agreement with the Representative to provide direction to the Representative in connection with the performance of its services under this Agreement and the Escrow Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative (together with its members, managers, directors, officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Representative Group”) shall be liable for any liability, loss, damage, penalty, fine, cost or expense incurred by the Representative while acting in good faith and in the exercise of its good faith judgment and arising out of or in connection with the acceptance or administration of its duties or the exercise of its rights hereunder (it being understood that any act done or omitted pursuant to the advice of counsel, public accountants or other independent experts experienced in the matter at issue shall be conclusive evidence of such good faith). Each Securityholder shall, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger, indemnify, defend and hold harmless the Representative Group and its successors and assigns from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs, fees, judgments, amounts paid in settlement and expenses (including attorneys’ fees and court and other skilled professionals’ costs and in connection with seeking recovery from insurers) (collectively, “Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Representative Group pursuant to the terms of this Agreement, in each case as such Representative Loss is incurred or suffered. The Representative shall have no duties or obligations hereunder, including any fiduciary duties, except those set forth herein, and such duties and obligations shall be entitled to recover any Representative Losses reasonably incurred determined solely by the Representative in connection with actions taken by the Representative pursuant to the terms express provisions of this Agreement or the Escrow Agreement (including the hiring of legal counsel and other skilled professionals and the incurring of legal fees and costs), without the requirement of any consent or approval by Parent or any other Person. All of the indemnities and immunities granted to the Representative Group under this Agreement shall survive the resignation or removal of Representative or any member of the Advisory Group and the Merger and/or any termination of this Agreement and the Escrow Agreement.
(i) The Securityholders acknowledge that the Representative 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 administration of its duties. The Representative Losses shall be satisfied (i) from the Representative Expense Account, (ii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i), to the extent of any amount of the Escrow Fund that has not been used to satisfy indemnification claims pursuant to Article VIII and that is otherwise to be released to the Securityholders under Sections 1.10(c)(i), 1.10(c)(ii), 1.11(c), or 1.11(d) and (iii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i) and (ii), from each Securityholder, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger (including, with respect to the Transferring Sellers, the value (based on the Parent Price Per Share) of the shares of Parent Common Stock received pursuant to the Common Stock Purchase Agreement). As soon as practicable after the date on which the final obligation of the Representative under this Agreement and the Escrow Agreement have been discharged, the Representative shall remit any amounts remaining in the Representative Escrow Account to the Paying Agent (or, to the Surviving Corporation or such Person as designated by Parent). The Paying Agent shall promptly distribute such amounts to the Securityholders based on their respective Indemnification Pro Rata Percentages; provided, that, any amount payable to an Employee holder of an In-the-Money-Option shall be distributed to the Surviving Corporation who will disburse such amount, net of applicable Tax withholdings, through the Company’s payroll.
Appears in 1 contract
Sources: Merger Agreement (Vocus, Inc.)
Appointment of the Representative. (a) In order to administer efficiently Each of the determination ofTBO Shareholders irrevocably constitutes, amongst other itemsappoints and empowers, effective from and after the Merger Consideration date hereof, ▇▇▇▇▇ ▇▇▇▇▇▇ as the Representative, for the benefit of the TBO Shareholders and the Final Adjustment Amount exclusive agent and the defense and/or settlement attorney-in-fact to act on behalf of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereofeach TBO Shareholder, the Securityholders, by their adoption and approval of this Agreement, as well as, in certain cases, through separate instruments (including the Letters of Transmittal and Option Surrender Forms), irrevocably appoint the Representative as their exclusive agent, attorney in fact and representative (with full power of substitution substitution, and authorizes the Representative acting for such TBO Shareholder and in such TBO Shareholder’s name, place and stead, in any and all capacities, to do and perform every act and thing required or permitted to be done in connection with and to facilitate the premises)consummation of the transactions contemplated hereby, as fully to all intents and purposes as such TBO Shareholder might or could do in person, including, without limitation:
(i) to negotiate, execute and deliver such waivers, consents and amendments (other than any written consent of the TBO Shareholders adopting this Agreement) under this Agreement and the consummation of the transactions contemplated hereby as the Representative, in its sole discretion, may deem necessary or desirable;
(ii) to enforce and protect the rights and interests of the TBO Shareholders and to enforce and protect the rights and interests of such Persons arising out of or under or in any manner relating to this Agreement and the transactions provided for herein, and to take any and all actions which the Representative believes are necessary or appropriate under this Agreement for and on behalf of the TBO Shareholders including, consenting to, compromising or settling any claims, conducting negotiations with Parent, the Surviving Company and their respective representatives regarding such claims, and, in connection therewith, to (i) assert any claim or institute any action, proceeding or investigation; (ii) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by its execution hereofParent, the Surviving Company or any other Person, or by any Governmental Authority against the Representative hereby accepts and/or any of the TBO Shareholders, and receive process on behalf of any or all TBO Shareholders in any such appointmentclaim, action, proceeding or investigation and compromise or settle on such terms as the Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such claim, action, proceeding or investigation; (iii) file any proofs of debt, claims and petitions as the Representative may deem advisable or necessary; (iv) settle or compromise any claims asserted under this Agreement, including with respect to any Earn-Out Payment or indemnification claim; and (v) file and prosecute appeals from any decision, judgment or award rendered in any such action, proceeding or investigation, it being understood that the Representative shall not have any obligation to take any such actions, and shall not have any Liability for any failure to take any such actions;
(iii) to refrain from enforcing any right of the TBO Shareholders arising out of or under or in any manner relating to this Agreement; provided, however, that no such failure to act on the part of the Representative, except as otherwise provided in this Agreement, shall be deemed a waiver of any such right or interest by the Representative or by the TBO Shareholders unless such waiver is in writing signed by the waiving party or by the Representative;
(iv) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Representative, in its sole and absolute discretion, may consider necessary, proper or convenient in connection with or to carry out the transactions contemplated by this Agreement; and/or
(v) to engage special counsel, accountants and other advisors and incur such other expenses on behalf of the TBO Shareholders in connection with any matter arising under this Agreement.
(b) The Representative is hereby authorized shall be entitled to receive reimbursement from, and be indemnified by, the TBO Shareholders for certain expenses, charges and Liabilities as provided below. In connection with this Agreement, and in exercising or failing to exercise all or any of the powers conferred upon the Representative hereunder, (i) the Representative shall incur no responsibility whatsoever to take all action necessary in connection with the acceptance, rejection and determination of the Merger Consideration and the Final Adjustment Amount and the defense and/or settlement any TBO Shareholders by reason of any claims for Losses (including error in judgment or other act or omission performed or omitted hereunder, other than any act or failure to act which represents willful misconduct by the power to compromise any indemnity claim on behalf of the Securityholders Representative, and to transact matters of litigation) for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, (ii) to give and receive all notices required to be given under this Agreement and the other agreements contemplated hereby to which all of the Securityholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative will deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to pay any expenses of the Securityholders or the Representative from the Representative Expense Account;
(ii) to execute and deliver all consents, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate after the Closing;
(iv) to do or refrain from doing any further act or deed on behalf of the Securityholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Securityholders could do if personally present; and
(v) to receive service of process in connection with any claims under this Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Securityholders, except as expressly provided herein and in the Escrow Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement (other than the Escrow Agreement), schedule, exhibit or the Disclosure Schedules.
(c) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Shareholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the voting power represented by the Company Shares issued and outstanding immediately prior to the Effective Time, will select another representative to fill such vacancy and such substituted representative will be deemed to be the Representative for all purposes of this Agreement.
(d) The Representative shall be entitled to: (i) rely upon the Percentage Schedule, (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 Securityholder or other party. All decisions and actions by the Representative, including the defense or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, will be binding upon all of the Securityholders, and no Securityholder will have the right to object, dissent, protest or otherwise contest the same.
(e) Parent will be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the Final Adjustment Amount and the settlement or compromise of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof and any other actions required to be taken by the Representative hereunder, and no party hereunder or Shareholder will have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the instructions or decisions of the Representative.
(f) The provisions of this Section 12.20 and the powers, immunities and rights to indemnification granted to the Representative and the Advisory Group hereunder: (i) are independent and severable, (ii) are irrevocable and coupled with an interest and shall survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder, (iii) will be enforceable notwithstanding any rights or remedies that any Shareholder may have in connection with the transactions contemplated by this Agreement and (iv) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Fund.
(g) The provisions of this Section 12.20 will be binding upon the heirs, legal representatives, successors and assigns of each Securityholders, and any references in this Agreement to a Securityholder or the Securityholders will mean and include the successors to the rights of the Securityholders hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
(h) Certain Securityholders have entered into a letter agreement with the Representative to provide direction to the Representative in connection with the performance of its services under this Agreement and the Escrow Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative (together with its members, managers, directors, officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Representative Group”) shall be liable for any liability, loss, damage, penalty, fine, cost or expense incurred by the Representative while acting in good faith and in the exercise of its good faith judgment and arising out of or in connection with the acceptance or administration of its duties or the exercise of its rights hereunder (it being understood that any act done or omitted pursuant to the advice of counsel, public accountants or other independent experts experienced in the matter at issue issue, and any error in judgment or other act or omission of the Representative pursuant to such advice shall be conclusive evidence of such good faith). in no event subject the Representative to Liability to any TBO Shareholders.
(c) Each Securityholder shallTBO Shareholder shall indemnify, severally and not jointly jointly, based on such TBO Shareholder’s pro rata portion of the Parent Common Stock and Parent Preferred Stock (on an as-converted basis, without regard to any limitations on conversion set forth in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually Certificate of Designations) received by such Securityholder in the Mergerit hereunder, indemnify, defend and hold harmless the Representative Group and its successors and assigns from and against all Damages, of any nature whatsoever (including, but not limited to, any and all claimsexpense whatsoever reasonably incurred in investigating, demandspreparing or defending against any litigation, suitscommenced or threatened or any claims whatsoever), actions, causes of action, losses, damages, obligations, liabilities, costs, fees, judgments, amounts paid in settlement and expenses (including attorneys’ fees and court and other skilled professionals’ costs and in connection with seeking recovery from insurers) (collectively, “Representative Losses”) arising as a result out of or incurred in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the Liability of the Representative hereunder for its willful misconduct. In the event of any indemnification hereunder, upon written notice from the Representative to the TBO Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each TBO Shareholder shall promptly deliver to the Representative full payment of his or her pro rata portion of the amount of such deficiency.
(d) All of the indemnities, powers and immunities granted to the Representative under this Agreement shall survive the Effective Time and/or any termination of this Agreement. The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any TBO Shareholder and (ii) shall survive the consummation of the Merger, and any action taken by the Representative pursuant to the authority granted in this Agreement shall be effective and absolutely binding on each TBO Shareholder notwithstanding any contrary action of or direction from such TBO Shareholder, except for actions or omissions of the Representative constituting willful misconduct.
(e) Parent and the Surviving Company shall have the right to rely upon all actions taken or omitted to be taken by the Representative Group pursuant to the terms of this Agreement, all of which actions or omissions shall be legally binding upon the TBO Shareholders.
(f) Each of TBO, Merger Sub and Parent acknowledges and agrees that the Representative is a party to this Agreement solely to perform certain administrative functions in connection with the consummation of the transactions contemplated hereby. Accordingly, each case as such Representative Loss is incurred or suffered. The of TBO, Merger Sub and Parent acknowledges and agrees that the Representative shall have no Liability to, and shall not be entitled liable for any Damages of, any of TBO, Merger Sub or Parent in connection with any obligations of the Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby, except to recover any Representative Losses reasonably incurred the extent such Damages shall be proven to be the direct result of willful misconduct by the Representative in connection with actions taken by the Representative pursuant to the terms performance of this Agreement or the Escrow Agreement (including the hiring of legal counsel and other skilled professionals and the incurring of legal fees and costs), without the requirement of any consent or approval by Parent or any other Person. All of the indemnities and immunities granted to the Representative Group under this Agreement shall survive the resignation or removal of Representative or any member of the Advisory Group and the Merger and/or any termination of this Agreement and the Escrow Agreementhis obligations hereunder.
(ig) The Securityholders Each TBO Shareholder shall acknowledge that and consent to the Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability provisions of this Section 10.17 in the exercise Letter of Transmittal executed and delivered by him, her or performance of any of its powers, rights, duties or privileges or administration of its duties. The Representative Losses shall be satisfied (i) from the Representative Expense Account, (ii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i), to the extent of any amount of the Escrow Fund that has not been used to satisfy indemnification claims it pursuant to Article VIII and that is otherwise to be released to the Securityholders under Sections 1.10(c)(i), 1.10(c)(ii), 1.11(c), or 1.11(d) and (iii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i) and (ii), from each Securityholder, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger (including, with respect to the Transferring Sellers, the value (based on the Parent Price Per Share) of the shares of Parent Common Stock received pursuant to the Common Stock Purchase Agreement). As soon as practicable after the date on which the final obligation of the Representative under this Agreement and the Escrow Agreement have been discharged, the Representative shall remit any amounts remaining in the Representative Escrow Account to the Paying Agent (or, to the Surviving Corporation or such Person as designated by Parent). The Paying Agent shall promptly distribute such amounts to the Securityholders based on their respective Indemnification Pro Rata Percentages; provided, that, any amount payable to an Employee holder of an In-the-Money-Option shall be distributed to the Surviving Corporation who will disburse such amount, net of applicable Tax withholdings, through the Company’s payrollIII.
Appears in 1 contract
Sources: Merger Agreement (Tiger Media, Inc.)
Appointment of the Representative. (a) In order to administer efficiently the determination of, amongst other items, of the Merger Consideration Estimated Purchase Price and the Final Adjustment Amount Purchase Price and the defense and/or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereofLosses, the SecurityholdersSellers, by their adoption and approval execution of this Agreement, as well as, in certain cases, through separate instruments (including the Letters of Transmittal and Option Surrender Forms), irrevocably appoint the Representative as their exclusive agent, attorney in fact and representative (with full power of substitution in the premises), and, by its execution hereof, the Representative hereby accepts such appointment.
(b) The Representative is hereby authorized (i1) to take all action necessary in connection with the acceptance, rejection and determination of the Merger Consideration Estimated Purchase Price and the Final Adjustment Amount Purchase Price and the defense and/or settlement of any claims for Losses (including the power to pursue claims against Buyer, compromise any indemnity claim on behalf of the Securityholders Sellers and to transact matters of litigation) for which the Parent Indemnified Parties may be entitled to indemnification , in each case pursuant to Section 8.02 hereofArticle X), (ii2) to give and receive all notices required to be given under this Agreement, the Deposit Escrow Agreement, the Indemnification, Remediation and Adjustment Escrow Agreement and the any other agreements contemplated hereby to which all of the Securityholders Sellers are subject, and (iii3) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative will deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to execute and deliver the Deposit Escrow Agreement and the Indemnification, Remediation and Adjustment Escrow Agreement and any amendments or waivers thereto as the representative of the Sellers; to execute any instructions or directions to the Escrow Agent with respect to disbursements or other matters thereunder; to pay any expenses of the Securityholders Sellers or the Representative from the Escrow Amount; and to take such further actions under the Indemnification, Remediation and Adjustment Escrow Agreement and the Deposit Escrow as the Representative Expense Accountdeems to be necessary or appropriate;
(ii) to execute and deliver all consents, waivers, ancillary agreements, stock share powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate appropriate, whether prior to, at or after the Closing;
(iv) to do or refrain from doing any further act or deed on behalf receive funds, make payments of funds, and give receipts for funds;
(v) to receive funds for the payment of expenses of the Securityholders that Sellers (including the Representative Holdback Amount), to deposit such funds in such accounts as the Representative deems necessary or appropriate and apply such funds in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Securityholders could do if personally presentpayment for such expenses; and
(vvi) to receive service of process in connection with any claims under this Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Securityholders, except as expressly provided herein and in the Escrow Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement (other than the Escrow Agreement), schedule, exhibit or the Disclosure Schedules.
(c) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Shareholders Sellers (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held held, directly or indirectly, a majority of the voting power represented by the Company Shares Units issued and outstanding immediately prior to the Effective TimeClosing, will select another representative to fill such vacancy and such substituted representative will be deemed to be the Representative for all purposes of this Agreement.
(d) The Subject to the Representative shall be entitled to: (i) rely upon complying in all material respects with the Percentage Scheduleterms of this Agreement, (ii) rely upon any signature believed by it to be genuineall instructions, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Securityholder or other party. All decisions and actions by the Representative, including the defense or settlement of any claims for Losses for which Losses, and including the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereofdistribution of amounts held in the Escrow Account, will be binding upon all of the SecurityholdersSellers, and no Securityholder Seller will have the right to object, dissent, protest or otherwise contest the samesame or otherwise have any cause of action against the Representative for any action taken or not taken, decision made or instruction given by the Representative under this Agreement.
(e) Parent The Representative will promptly provide written notice to the Sellers upon receiving service of process in connection with any claims under this Agreement, and upon any settlement of such claims by the Representative.
(f) Buyer will be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration Estimated Purchase Price and the Final Adjustment Amount Purchase Price and the settlement or compromise of any claims for Losses for which and the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof distribution of any amounts held in the Escrow Account and any other actions required to be taken by the Representative hereunder, and no party hereunder or Shareholder will have any cause of action against Parent or Merger Sub Buyer for any action taken by Parent or Merger Sub Buyer in reliance upon the instructions or decisions of the Representative.
(fg) The Representative shall be indemnified and held harmless by the Sellers against all Losses paid or incurred in connection with any action, suit, proceeding or claim to which the Representative is made a party by reason of the fact that the Representative was acting as the Representative pursuant to this Agreement; provided, however, that the Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Representative constitute fraud, gross negligence, bad faith or willful misconduct.
(h) The Representative may use the Representative Holdback Amount in its sole discretion to pay the expenses incurred by the Representative under the authorization granted in this Agreement, including, without limitation, any out-of-pocket expenses incurred by the Representative whether in respect of indemnification claims, the defense thereof or otherwise.
(i) The provisions of this Section 12.20 and the powers, immunities and rights to indemnification granted to the Representative and the Advisory Group hereunder: (i) 12.23 are independent and severable, (ii) are irrevocable and coupled with an interest and shall survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder, (iii) will be enforceable notwithstanding any rights or remedies that any Shareholder Seller may have in connection with the transactions contemplated by this Agreement and (iv) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow FundAgreement.
(gj) The provisions of this Section 12.20 12.23 will be binding upon the heirs, legal representatives, successors and assigns of each SecurityholdersSeller, and any references in this Agreement to a Securityholder Seller or the Securityholders Sellers will mean and include the successors to the rights of the Securityholders Sellers hereunder, whether pursuant to testamentary disposition, the Laws laws of descent and distribution or otherwise.
(hk) Certain Securityholders have entered into a letter agreement with the Representative to provide direction Notwithstanding anything to the Representative contrary contained in connection with the performance this Section 12.23, no payment, notice, receipt or delivery of its services under this Agreement and the Escrow Agreement (such Securityholdersdocuments, including their individual representativesexercise, collectively hereinafter referred enforcement or waiver of rights or conditions, indemnification claim or indemnification or a principal defense will be ineffective by reason only of it having been made or given to or by a Seller, as the “Advisory Group”). Neither the Representative (together with its memberscase may be, managers, directors, officers, contractors, agents and employees) nor any member directly if each of the Advisory Group (collectivelyRepresentative, Buyer and such Seller consent by virtue of not objecting to such dealings without the “Representative Group”) shall be liable for any liabilityintermediary of the Representative, loss, damage, penalty, fine, cost or expense incurred by the Representative while acting in good faith and in the exercise of its good faith judgment and arising out of or in connection with the acceptance or administration of its duties or the exercise of its rights hereunder (it being understood that any act done or omitted pursuant to the advice of counsel, public accountants or other independent experts experienced in the matter at issue shall be conclusive evidence of such good faith). Each Securityholder shall, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount consent not to exceed the proceeds actually received by such Securityholder in the Merger, indemnify, defend and hold harmless the Representative Group and its successors and assigns from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs, fees, judgments, amounts paid in settlement and expenses (including attorneys’ fees and court and other skilled professionals’ costs and in connection with seeking recovery from insurers) (collectively, “Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Representative Group pursuant to the terms of this Agreement, in each case as such Representative Loss is incurred or suffered. The Representative shall be entitled to recover any Representative Losses reasonably incurred by the Representative in connection with actions taken by the Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and other skilled professionals and the incurring of legal fees and costs), without the requirement of any consent or approval by Parent or any other Person. All of the indemnities and immunities granted to the Representative Group under this Agreement shall survive the resignation or removal of Representative or any member of the Advisory Group and the Merger and/or any termination of this Agreement and the Escrow Agreementunreasonably withheld.
(i) The Securityholders acknowledge that the Representative 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 administration of its duties. The Representative Losses shall be satisfied (i) from the Representative Expense Account, (ii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i), to the extent of any amount of the Escrow Fund that has not been used to satisfy indemnification claims pursuant to Article VIII and that is otherwise to be released to the Securityholders under Sections 1.10(c)(i), 1.10(c)(ii), 1.11(c), or 1.11(d) and (iii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i) and (ii), from each Securityholder, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger (including, with respect to the Transferring Sellers, the value (based on the Parent Price Per Share) of the shares of Parent Common Stock received pursuant to the Common Stock Purchase Agreement). As soon as practicable after the date on which the final obligation of the Representative under this Agreement and the Escrow Agreement have been discharged, the Representative shall remit any amounts remaining in the Representative Escrow Account to the Paying Agent (or, to the Surviving Corporation or such Person as designated by Parent). The Paying Agent shall promptly distribute such amounts to the Securityholders based on their respective Indemnification Pro Rata Percentages; provided, that, any amount payable to an Employee holder of an In-the-Money-Option shall be distributed to the Surviving Corporation who will disburse such amount, net of applicable Tax withholdings, through the Company’s payroll.
Appears in 1 contract
Sources: Equity Purchase Agreement (ClubCorp Holdings, Inc.)
Appointment of the Representative. (a) In order to administer efficiently the determination of, amongst other items, the Merger Consideration Each Seller and the Final Adjustment Amount and the defense and/or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, the Securityholders, by their adoption and approval of this Agreement, as well as, in certain cases, through separate instruments (including the Letters of Transmittal and Option Surrender Forms), Sosnoff hereby irrevocably appoint appoints the Representative as their exclusive agent, attorney in fact and representative (with full power of substitution in the premises), and, by its execution hereof, the Representative hereby accepts such appointment.
(b) The Representative is hereby authorized (i) to take all action necessary in connection with the acceptance, rejection and determination sole agent of the Merger Consideration Sellers and the Final Adjustment Amount and the defense and/or settlement of any claims for Losses (including the power Sosnoff to compromise any indemnity claim act on behalf of the Securityholders and such Person regarding any matter relating to transact matters of litigation) for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, (ii) to give and receive all notices required to be given or arising under this Agreement and the other agreements contemplated hereby to which all of the Securityholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative will deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including for the power:
purposes of: (i) to pay receiving any expenses of the Securityholders or the Representative payments due from the Representative Expense Account;
Buyer that are required under the terms of this Agreement to be paid to the Sellers or Sosnoff and, where applicable, distributing such payments to the Sellers or Sosnoff, pro rata based on their respective Purchase Price Percentages; (ii) to execute and deliver all consentstaking any action on behalf of the Sellers, waiversany individual Seller or Sosnoff that may be necessary or desirable, ancillary agreements, stock powers, certificates and documents that as determined by the Representative deems necessary or appropriate in its sole discretion, in connection with the consummation indemnification provisions set forth in Article IX or Article XIII and the amendment of this Agreement in accordance with Section 14.2; (iii) taking any action on behalf of the Sellers, any individual Seller or Sosnoff that may be necessary or desirable, as determined by the Representative in its sole discretion, in connection with negotiating or entering into settlements, resolutions and compromises with respect to the adjustments or payments contemplated by Sections 2.3 and 2.4; (iv) accepting notices on behalf of the Sellers, any individual Seller or Sosnoff in accordance with Section 14.4; (v) executing and delivering, on behalf of the Sellers, any individual Seller or Sosnoff, any notices, documents or certificates to be executed by the Sellers, any individual Seller or Sosnoff in connection with this Agreement and the transactions contemplated by this Agreement;
; and (iiivi) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary granting any consent or appropriate after the Closing;
(iv) to do or refrain from doing any further act or deed approval on behalf of the Securityholders that the Representative deems necessary Sellers, any individual Seller or appropriate in its sole discretion relating Sosnoff pursuant to the subject matter of this Agreement as fully and completely as the Securityholders could do if personally present; and
(v) to receive service of process in connection with any claims under this Agreement. Notwithstanding As the foregoing, the Representative shall have no obligation to act on behalf representative of the SecurityholdersSellers, except as expressly provided herein any individual Seller or Sosnoff under this Agreement and in the Escrow Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement (other than the Escrow Agreement), schedule, exhibit or the Disclosure Schedules.
(c) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Shareholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the voting power represented by the Company Shares issued and outstanding immediately prior to the Effective Time, will select another representative to fill such vacancy and such substituted representative will be deemed to be the Representative for all purposes of this Agreement.
(d) The Representative shall be entitled to: (i) rely upon the Percentage Schedule, (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 Securityholder or other party. All decisions and actions by the Representative, including the defense or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, will be binding upon all of the Securityholders, and no Securityholder will have the right to object, dissent, protest or otherwise contest the same.
(e) Parent will be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the Final Adjustment Amount and the settlement or compromise of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof and any other actions required to be taken by the Representative hereunder, and no party hereunder or Shareholder will have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the instructions or decisions of the Representative.
(f) The provisions of this Section 12.20 and the powers, immunities and rights to indemnification granted to the Representative and the Advisory Group hereunder: (i) are independent and severable, (ii) are irrevocable and coupled with an interest and shall survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder, (iii) will be enforceable notwithstanding any rights or remedies that any Shareholder may have in connection with the transactions contemplated by this Agreement and (iv) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Fund.
(g) The provisions of this Section 12.20 will be binding upon the heirs, legal representatives, successors and assigns of each Securityholders, and any references in this Agreement to a Securityholder or the Securityholders will mean and include the successors to the rights of the Securityholders hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
(h) Certain Securityholders have entered into a letter agreement with the Representative to provide direction to the Representative in connection with the performance of its services under this Agreement and the Escrow Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative (together with its members, managers, directors, officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Representative Group”) shall be liable for any liability, loss, damage, penalty, fine, cost or expense incurred by the Representative while acting in good faith and in the exercise of its good faith judgment and arising out of or in connection with the acceptance or administration of its duties or the exercise of its rights hereunder (it being understood that any act done or omitted pursuant to the advice of counsel, public accountants or other independent experts experienced in the matter at issue shall be conclusive evidence of such good faith). Each Securityholder shall, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger, indemnify, defend and hold harmless the Representative Group and its successors and assigns from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs, fees, judgments, amounts paid in settlement and expenses (including attorneys’ fees and court and other skilled professionals’ costs and in connection with seeking recovery from insurers) (collectively, “Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Representative Group pursuant to the terms of this Agreement, in each case as such Representative Loss is incurred or suffered. The Representative shall be entitled to recover any Representative Losses reasonably incurred by the Representative in connection with actions taken by the Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and other skilled professionals and the incurring of legal fees and costs), without the requirement of any consent or approval by Parent or any other Person. All of the indemnities and immunities granted to the Representative Group under this Agreement shall survive the resignation or removal of Representative or any member of the Advisory Group and the Merger and/or any termination of this Agreement and the Escrow Agreement.
(i) The Securityholders acknowledge that the Representative 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 administration of its duties. The Representative Losses shall be satisfied (i) from the Representative Expense Account, (ii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i), to the extent of any amount of the Escrow Fund that has not been used to satisfy indemnification claims pursuant to Article VIII and that is otherwise to be released to the Securityholders under Sections 1.10(c)(i), 1.10(c)(ii), 1.11(c), or 1.11(d) and (iii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i) and (ii), from each Securityholder, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger (including, with respect to the Transferring Sellers, the value (based on the Parent Price Per Share) of the shares of Parent Common Stock received pursuant to the Common Stock Purchase Agreement). As soon as practicable after the date on which the final obligation of the Representative under this Agreement and the Escrow Agreement have been discharged, the Representative shall remit any amounts remaining in act as the Representative Escrow Account agent for each Seller and Sosnoff and shall have authority to the Paying Agent (or, to the Surviving Corporation or bind each such Person as designated by Parent). The Paying Agent shall promptly distribute such amounts to in accordance with the Securityholders based on their respective Indemnification Pro Rata Percentages; provided, that, any amount payable to an Employee holder of an In-the-Money-Option shall be distributed to the Surviving Corporation who will disburse such amount, net of applicable Tax withholdings, through the Company’s payrollterms hereof.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Evercore Partners Inc.)
Appointment of the Representative. (a) In order to administer efficiently the determination of, amongst other items, the Merger Consideration and the Final Adjustment Amount and the defense and/or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, the Securityholders, by their adoption and approval of this Agreement, as well as, in certain cases, through separate instruments (including the Letters of Transmittal and Option Surrender Forms), The undersigned hereby irrevocably appoint appoints the Representative as their exclusive the undersigned’s representative, attorney-in-fact and agent, attorney in fact and representative (with full power of substitution to act in the premises)name, andplace and stead of the undersigned in accordance with the terms of the Merger Agreement and to act on behalf of the undersigned in any amendment of or action involving the Merger Agreement, by its execution hereofincluding initiating, prosecuting, defending, negotiating, settling or otherwise dealing with claims on behalf of or against the Representative hereby accepts such appointment.
(b) The Representative is hereby authorized (i) to take all action necessary undersigned arising under or in connection with the acceptanceMerger Agreement, rejection and determination of the Merger Consideration and the Final Adjustment Amount and the defense and/or settlement of any claims for Losses (including the power to compromise any indemnity claim on behalf of the Securityholders and to transact matters of litigation) for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, (ii) to give and receive all notices required to be given under this Paying Agent Agreement and the other agreements contemplated hereby to which all of the Securityholders are subjectEscrow Agreement or any transactions or matters related thereto, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents documents, as the Representative will shall deem necessary or appropriate in connection conjunction with any of the transactions contemplated by this Agreementhereby, including the power:
(i) to pay any expenses of the Securityholders or the Representative from the Representative Expense Account;
(iia) to execute and deliver, and administer all matters pertaining to performance under, the Paying Agent Agreement and the Escrow Agreement; and
(b) to take all action necessary or desirable in connection with the waiver of any condition to the obligations of the Company to consummate the transactions contemplated by the Merger Agreement, the Paying Agent Agreement and the Escrow Agreement; and
(c) to negotiate, execute and deliver all consentsancillary agreements, statements, certificates, statements, notices, approvals, extensions, waivers, ancillary agreementsundertakings, stock powers, certificates amendments and other documents that the Representative deems necessary required or appropriate permitted to be given in connection with the consummation of the transactions contemplated by this the Merger Agreement;, the Paying Agent Agreement and the Escrow Agreement; and
(iiid) to execute give and deliver receive all amendments notices and waivers communications to this be given or received under the Merger Agreement, the Paying Agent Agreement that and the Representative deems necessary or appropriate after Escrow Agreement and to receive service of process in connection with any claims under the Closing;Merger Agreement and the transactions contemplated thereby; and
(ive) to take all actions that, under the Merger Agreement, the Paying Agent Agreement and the Escrow Agreement and pursuant to the transactions contemplated thereby, may be taken by the undersigned (or the Representative) and to do or refrain from doing any further act or deed on behalf of the Securityholders undersigned that the Representative deems necessary or appropriate in its the Representative’s sole discretion relating to the subject matter of this the Merger Agreement and the transactions contemplated hereby as fully and completely as the Securityholders undersigned could do if personally present; and
(v) to receive service of process in connection with any claims under this Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Securityholders, except as expressly provided herein and in the Escrow Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement (other than the Escrow Agreement), schedule, exhibit or the Disclosure Schedules.
(c) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Shareholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the voting power represented by the Company Shares issued and outstanding immediately prior to the Effective Time, will select another representative to fill such vacancy and such substituted representative will be deemed to be the Representative for all purposes of this Agreement.
(d) The Representative shall be entitled to: (i) rely upon the Percentage Schedule, (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 Securityholder or other party. All decisions and actions by the Representative, including the defense or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, will be binding upon all of the Securityholders, and no Securityholder will have the right to object, dissent, protest or otherwise contest the same.
(e) Parent will be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the Final Adjustment Amount and the settlement or compromise of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof and any other actions required to be taken by the Representative hereunder, and no party hereunder or Shareholder will have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the instructions or decisions of the Representative.
(f) The provisions of this Section 12.20 and the powers, immunities and rights to indemnification granted to the Representative and the Advisory Group hereunder: (i) are independent and severable, (ii) are irrevocable and coupled with an interest and shall survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder, (iii) will be enforceable notwithstanding any rights or remedies that any Shareholder may have in connection with the transactions contemplated by this Agreement and (iv) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Fund.
(g) The provisions of this Section 12.20 will be binding upon the heirs, legal representatives, successors and assigns of each Securityholders, and any references in this Agreement to a Securityholder or the Securityholders will mean and include the successors to the rights of the Securityholders hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
(h) Certain Securityholders have entered into a letter agreement with the Representative to provide direction to the Representative in connection with the performance of its services under this Agreement and the Escrow Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative (together with its members, managers, directors, officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Representative Group”) shall be liable for any liability, loss, damage, penalty, fine, cost or expense incurred by the Representative while acting in good faith and in the exercise of its good faith judgment and arising out of or in connection with the acceptance or administration of its duties or the exercise of its rights hereunder (it being understood that any act done or omitted pursuant to the advice of counsel, public accountants or other independent experts experienced in the matter at issue shall be conclusive evidence of such good faith). Each Securityholder shall, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger, indemnify, defend and hold harmless the Representative Group and its successors and assigns from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs, fees, judgments, amounts paid in settlement and expenses (including attorneys’ fees and court and other skilled professionals’ costs and in connection with seeking recovery from insurers) (collectively, “Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Representative Group pursuant to the terms of this Agreement, in each case as such Representative Loss is incurred or suffered. The Representative shall be entitled to recover any Representative Losses reasonably incurred by the Representative in connection with actions taken by the Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and other skilled professionals and the incurring of legal fees and costs), without the requirement of any consent or approval by Parent or any other Person. All of the indemnities and immunities granted to the Representative Group under this Agreement shall survive the resignation or removal of Representative or any member of the Advisory Group and the Merger and/or any termination of this Agreement and the Escrow Agreement.
(i) The Securityholders acknowledge that the Representative 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 administration of its duties. The Representative Losses shall be satisfied (i) from the Representative Expense Account, (ii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i), to the extent of any amount of the Escrow Fund that has not been used to satisfy indemnification claims pursuant to Article VIII and that is otherwise to be released to the Securityholders under Sections 1.10(c)(i), 1.10(c)(ii), 1.11(c), or 1.11(d) and (iii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i) and (ii), from each Securityholder, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger (including, with respect to the Transferring Sellers, the value (based on the Parent Price Per Share) of the shares of Parent Common Stock received pursuant to the Common Stock Purchase Agreement). As soon as practicable after the date on which the final obligation of the Representative under this Agreement and the Escrow Agreement have been discharged, the Representative shall remit any amounts remaining in the Representative Escrow Account to the Paying Agent (or, to the Surviving Corporation or such Person as designated by Parent). The Paying Agent shall promptly distribute such amounts to the Securityholders based on their respective Indemnification Pro Rata Percentages; provided, that, any amount payable to an Employee holder of an In-the-Money-Option shall be distributed to the Surviving Corporation who will disburse such amount, net of applicable Tax withholdings, through the Company’s payroll.
Appears in 1 contract
Sources: Merger Agreement (Health Insurance Innovations, Inc.)
Appointment of the Representative. (a) In order to administer efficiently the determination of, amongst other items, the Merger Consideration and the Final Adjustment Amount and the defense and/or settlement of any claims for Losses for which claim or liability in connection with this Agreement or the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereoftransactions contemplated hereby, the SecurityholdersStockholders and Optionholders, by their adoption and approval of this Agreement, as well as, in certain cases, through separate instruments (including the Letters of Transmittal Transmittal, Option Cancellation Agreements, Stockholder Consent and Option Surrender FormsSupport Agreement), irrevocably appoint the Representative as their exclusive agent, attorney in fact and representative (with full power of substitution in the premises), and, by its execution hereof, the Representative hereby accepts such appointment.
(b) The Representative is hereby authorized (ix) to take all action necessary in connection with the acceptance, rejection and determination of the Merger Consideration and the Final Adjustment Amount and the defense and/or settlement of any claims for Losses (including claim or liability in connection with this Agreement or the power to compromise any indemnity claim on behalf of the Securityholders and to transact matters of litigation) for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereoftransactions contemplated hereby, (iiy) to give and receive all notices required to be given under this Agreement and the other agreements contemplated hereby to which all of the Securityholders Stockholders and the Optionholders are subject, and (iiiz) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative will deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including including, without limitation, the power:
(i) to pay any expenses of the Securityholders or the Representative from the Representative Expense Account;
(ii) to execute and deliver all consents, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iiiii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate appropriate, whether prior to, at or after the Closing;
(iii) to receive funds, make payments of funds (including from the Representative Reserve Fund), and give receipts for funds;
(iv) to receive funds for the payment of expenses of the Stockholders and the Optionholders (including the Representative Reserve Fund), to deposit such funds in such accounts as the Representative deems appropriate and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Securityholders Stockholders and the Optionholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Securityholders Stockholders and the Optionholders could do if personally present; and
(vvi) to receive service of process in connection with any claims under this Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Securityholders, except as expressly provided herein and in the Escrow Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement (other than the Escrow Agreement), schedule, exhibit or the Disclosure Schedules.
(c) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Shareholders Stockholders and the Optionholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the voting power represented by the Company Common Shares issued and outstanding immediately prior to the Effective Time, will select another representative to fill such vacancy and such substituted representative will be deemed to be the Representative for all purposes of this Agreement.
(d) The Representative shall be entitled to: (i) rely upon the Percentage Schedule, (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 Securityholder or other party. All decisions and actions by the Representative, including the defense or settlement of any claims for Losses for which claim or liability in connection with this Agreement or the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereoftransactions contemplated hereby, will be binding upon all of the SecurityholdersStockholders and Optionholders, and no Securityholder Stockholder or Optionholder will have the right to object, dissent, protest or otherwise contest the same.
(e) Parent, the Paying Agent, the Escrow Agent and the other Parent Indemnified Parties will be able to rely conclusively on the instructions and decisions of the Representative and treat the Representative as to the determination duty appointed representative of the Merger Consideration Stockholders and Optionholders and any decision, act, consent or instruction of the Representative as being the decision, act, consent or instruction of each Stockholder or Optionholder, as applicable. Parent, the Company and the Final Adjustment Amount and the settlement or compromise of any claims for Losses for which the other Parent Indemnified Parties may, and the Escrow Agent and the Paying Agent shall, disregard any notice or instruction received directly from any Stockholder or Optionholder, other than the Representative. Parent and the other Parent Indemnified Parties are hereby relieved from any liability to any Person for any acts done by them in accordance with any such decision, act, consent or instruction of the Representative. Each Stockholder and Optionholder hereby agrees that for any Legal Proceeding arising under this Agreement or any other agreements ancillary hereto, such Stockholder or Optionholder, as applicable, may be entitled served legal process by registered mail to indemnification pursuant the address set forth in Section 12.04 for the Representative (or any alternative address designated to Section 8.02 hereof and any other actions required to be taken the parties in writing by the Representative), and that service in such manner shall be adequate and such Stockholder or Optionholder shall not assert any defense of claim that service in such manner was not adequate or sufficient in any court in any jurisdiction.
(f) All actions, decisions and instructions of the Representative hereunderwill be conclusive and binding upon all of the Stockholders and Optionholders, and no party hereunder Stockholder or Shareholder Optionholder will have any cause of action against Parent or Merger Sub the Representative for any action taken or not taken, decision made or instruction given by Parent the Representative under this Agreement, except for fraud or Merger Sub in reliance upon the instructions or decisions of willful misconduct by the Representative.;
(fg) The provisions of this Section 12.20 and the powers, immunities and rights to indemnification granted to the Representative and the Advisory Group hereunder: (i) 12.19 are independent and severable, (ii) are irrevocable and coupled with an interest and shall survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder, (iii) will be enforceable notwithstanding any rights or remedies that any Shareholder Stockholder or Optionholder may have in connection with the transactions contemplated by this Agreement and (iv) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Fund.Agreement; and
(gh) The provisions of this Section 12.20 12.19 will be binding upon the heirs, legal representatives, successors and assigns of each SecurityholdersStockholder and Optionholder, and any references in this Agreement to a Securityholder Stockholder or an Optionholder or the Securityholders Stockholders or Optionholders will mean and include the successors to the rights of the Securityholders Stockholders and Optionholders hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
(h) Certain Securityholders have entered into a letter agreement with the Representative to provide direction to the Representative in connection with the performance of its services under this Agreement and the Escrow Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative (together with its members, managers, directors, officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Representative Group”) shall be liable for any liability, loss, damage, penalty, fine, cost or expense incurred by the Representative while acting in good faith and in the exercise of its good faith judgment and arising out of or in connection with the acceptance or administration of its duties or the exercise of its rights hereunder (it being understood that any act done or omitted pursuant to the advice of counsel, public accountants or other independent experts experienced in the matter at issue shall be conclusive evidence of such good faith). Each Securityholder shall, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger, indemnify, defend and hold harmless the Representative Group and its successors and assigns from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs, fees, judgments, amounts paid in settlement and expenses (including attorneys’ fees and court and other skilled professionals’ costs and in connection with seeking recovery from insurers) (collectively, “Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Representative Group pursuant to the terms of this Agreement, in each case as such Representative Loss is incurred or suffered. The Representative shall be entitled to recover any Representative Losses reasonably incurred by the Representative in connection with actions taken by the Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and other skilled professionals and the incurring of legal fees and costs), without the requirement of any consent or approval by Parent or any other Person. All of the indemnities and immunities granted to the Representative Group under this Agreement shall survive the resignation or removal of Representative or any member of the Advisory Group and the Merger and/or any termination of this Agreement and the Escrow Agreement.
(i) The Securityholders acknowledge that the Representative 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 administration of its duties. The Representative Losses shall be satisfied (i) from the Representative Expense Account, (ii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i), to the extent of any amount of the Escrow Fund that has not been used to satisfy indemnification claims pursuant to Article VIII and that is otherwise to be released to the Securityholders under Sections 1.10(c)(i), 1.10(c)(ii), 1.11(c), or 1.11(d) and (iii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i) and (ii), from each Securityholder, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger (including, with respect to the Transferring Sellers, the value (based on the Parent Price Per Share) of the shares of Parent Common Stock received pursuant to the Common Stock Purchase Agreement). As soon as practicable after the date on which the final obligation of the Representative under this Agreement and the Escrow Agreement have been discharged, the Representative shall remit any amounts remaining in the Representative Escrow Account to the Paying Agent (or, to the Surviving Corporation or such Person as designated by Parent). The Paying Agent shall promptly distribute such amounts to the Securityholders based on their respective Indemnification Pro Rata Percentages; provided, that, any amount payable to an Employee holder of an In-the-Money-Option shall be distributed to the Surviving Corporation who will disburse such amount, net of applicable Tax withholdings, through the Company’s payroll.
Appears in 1 contract
Appointment of the Representative. (a) In order to administer efficiently the determination of, amongst other items, and payment of the Merger Closing Residual Cash Consideration and the Final Adjustment Amount Residual Cash Consideration and the defense and/or settlement of any claims for Losses for which the Parent Unitholders may be required to indemnify the Purchaser Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 8 .02 or Section 10.01(l) hereof, the Securityholderseach Unitholder, by their adoption and approval his, her or its acceptance of this Agreementany portion of the Merger Consideration, as well as, in certain cases, through separate instruments (including the Letters of Transmittal and Option Surrender Forms)instruments, irrevocably appoint appoints the Representative as their exclusive his, her or its agent, attorney in fact and representative (with full power of substitution in the premises), and, by its execution hereof, the Representative hereby accepts such appointment.
(b) The Representative is hereby authorized (i) to take all action necessary in connection with the acceptance, rejection rejection, determination and determination payment of the Merger Closing Residual Cash Consideration and the Final Adjustment Amount Residual Cash Consideration and the defense and/or settlement of any claims for Losses (including the power to compromise any indemnity claim on behalf of the Securityholders Unitholders and to transact matters of litigation) for which the Parent Unitholders may be required to indemnify the Purchaser Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 or Section 10.01(l) hereof, (ii) to give and receive all notices required to be given under this Agreement, the Escrow Agreement and the other agreements contemplated hereby to which all of the Securityholders Unitholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative will shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including including, without limitation, the power:
(i) to execute and deliver the Escrow Agreement and any amendments thereto as the representative of the Unitholders; to execute any instructions or directions to the Escrow Agent with respect to disbursements or other matters thereunder; to pay any expenses of the Securityholders Unitholders or the Representative from the Escrow Amount; and to take such further actions under the Escrow Agreement as the Representative Expense Accountdeems to be necessary or appropriate;
(ii) to execute and deliver all consentsamendments, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate appropriate, whether prior to, at or after the Closing;
(iv) to receive funds, make payments of funds, and give receipts for funds;
(v) to receive funds for the payment of expenses of the Unitholders (including, without limitation, the Holdback Amount), to deposit such funds in such accounts as the Representative deems appropriate and to apply such funds in payment for such expenses;
(vi) to take or refrain from taking all actions necessary in direction and support of the Unitholders rights and obligations in respect of the matters set forth on the Special Disputes Schedule;
(vii) to do or refrain from doing any further act or deed on behalf of the Securityholders Unitholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Securityholders Unitholders could do if personally present; and
(vviii) to receive service of process in connection with any claims under this Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Securityholders, except as expressly provided herein and in the Escrow Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement (other than the Escrow Agreement), schedule, exhibit or the Disclosure Schedules.
(c) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Shareholders Unitholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the voting power represented by the Company Shares Class A Common Units issued and outstanding immediately prior to the Effective Time, will Time shall select another representative to fill such vacancy vacancy, and such substituted representative will shall be deemed to be the Representative for all purposes of this AgreementAgreement upon written notice of such substitution to the Purchaser.
(d) The Representative shall be entitled to: (i) rely upon the Percentage Schedule, (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 Securityholder or other party. All decisions and actions by the Representative, including the defense or settlement of any claims for Losses for which the Parent Unitholders may be required to indemnify the Purchaser Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, will shall be binding upon all of the SecurityholdersUnitholders, and no Securityholder will Unitholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) Parent will The Purchaser and the Merger Sub shall be able to rely conclusively (without further evidence of any kind whatsoever, and without any duty of further inquiry) on the instructions and decisions of the Representative as to the determination and payment of the Merger Closing Residual Cash Consideration and the Final Adjustment Amount and Residual Cash Consideration, the settlement or compromise of any claims for Losses for which the Parent Unitholders may be required to indemnify the Purchaser Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 or Section 10.01(l) hereof and any other actions required to be taken or not taken by the Representative hereunder, and no party hereunder none of the parties hereto, the Unitholders or Shareholder will any other Person shall have any cause of action against Parent the Purchaser or the Merger Sub for or in respect of (i) any action taken or not taken, decision made or instruction given by Parent the Representative or (ii) any action taken or not taken by the Purchaser or the Merger Sub in reliance upon the instructions or decisions of the Representative.
(f) The provisions All actions, decisions and instructions of this Section 12.20 and the powers, immunities and rights to indemnification granted to the Representative shall be conclusive and the Advisory Group hereunder: (i) are independent and severable, (ii) are irrevocable and coupled with an interest and shall survive the death, incompetence, bankruptcy or liquidation binding upon all of the respective SecurityholderUnitholders, (iii) will be enforceable notwithstanding and no party hereunder or Unitholder shall have any rights cause of action against the Representative for any action taken or remedies that any Shareholder may have not taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative. Any action, decision or instruction hereunder or in connection with herewith that is binding on the transactions contemplated by parties to this Agreement and (ivincluding the determination, if any, of the Dispute Resolution Auditor) shall survive the delivery of an assignment by any Securityholder be binding upon all of the whole or any fraction of his, her or its interest in the Escrow FundUnitholders.
(g) The provisions of this Section 12.20 will 12.18 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Unitholder may have against the Representative in connection with the transactions contemplated by this Agreement.
(h) The provisions of this Section 12.18 shall be binding upon the heirs, legal representatives, successors and assigns of each SecurityholdersUnitholder, and any references in this Agreement to a Securityholder or the Securityholders will Unitholder shall mean and include the successors to the rights of the Securityholders Unitholders hereunder, whether pursuant to testamentary disposition, the Laws laws of descent and distribution or otherwise.
(hi) Certain Securityholders have entered into a letter agreement with the Representative to provide direction to the Representative in connection with the performance of its services under this Agreement and the Escrow Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative (together with its members, managers, directors, officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Representative Group”) shall be liable for any liability, loss, damage, penalty, fine, cost or expense incurred by the Representative while acting in good faith and in the exercise of its good faith judgment and arising out of or in connection with the acceptance or administration of its duties or the exercise of its rights hereunder (it being understood that any act done or omitted pursuant to the advice of counsel, public accountants or other independent experts experienced in the matter at issue shall be conclusive evidence of such good faith). Each Securityholder shall, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger, indemnify, defend and hold harmless the Representative Group and its successors and assigns from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs, fees, judgments, amounts paid in settlement All reasonable fees and expenses (including attorneys’ fees and court and other skilled professionals’ costs and in connection with seeking recovery from insurers) (collectively, “Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Representative Group pursuant to the terms of this Agreement, in each case as such Representative Loss is incurred or suffered. The Representative shall be entitled to recover any Representative Losses reasonably incurred by the Representative in connection with actions taken this Agreement and/or in controlling any Tax contests with respect to the Company or any Subsidiary shall be paid by the Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and other skilled professionals and the incurring of legal fees and costs), without the requirement of any consent or approval by Parent or any other Person. All of the indemnities and immunities granted to the Representative Group under this Agreement shall survive the resignation or removal of Representative or any member of the Advisory Group and the Merger and/or any termination of this Agreement and the Escrow Agreement.
(i) The Securityholders acknowledge Unitholders on a pro rata basis based on their respective Common Percentages; provided that the Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance first make payment of any of its powers, rights, duties or privileges or administration of its duties. The Representative Losses shall be satisfied (i) such fees and expenses from the Representative Expense Account, (ii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i), to the extent of any amount of the Escrow Fund that has not been used to satisfy indemnification claims pursuant to Article VIII and that is otherwise to be released to the Securityholders under Sections 1.10(c)(i), 1.10(c)(ii), 1.11(c), or 1.11(d) and (iii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i) and (ii), from each Securityholder, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger (including, with respect to the Transferring Sellers, the value (based on the Parent Price Per Share) of the shares of Parent Common Stock received pursuant to the Common Stock Purchase Agreement). As soon as practicable after the date on which the final obligation of the Representative under this Agreement and the Escrow Agreement have been discharged, the Representative shall remit any amounts remaining in the Representative Escrow Account to the Paying Agent (or, to the Surviving Corporation or such Person as designated by Parent). The Paying Agent shall promptly distribute such amounts to the Securityholders based on their respective Indemnification Pro Rata Percentages; provided, that, any amount payable to an Employee holder of an In-the-Money-Option shall be distributed to the Surviving Corporation who will disburse such amount, net of applicable Tax withholdings, through the Company’s payrollHoldback Amount.
Appears in 1 contract
Sources: Merger Agreement (Campbell Soup Co)
Appointment of the Representative. (a) In order Irrevocable Power of Attorney. Each Seller irrevocably constitutes and appoints ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as the Representative, with full and unqualified power to administer efficiently delegate to one or more Persons the determination ofauthority granted to it, amongst other itemshim or her hereunder, the Merger Consideration to act as such Person’s true and the Final Adjustment Amount lawful attorney-in-fact and the defense and/or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, the Securityholders, by their adoption and approval of this Agreement, as well as, in certain cases, through separate instruments (including the Letters of Transmittal and Option Surrender Forms), irrevocably appoint the Representative as their exclusive agent, attorney in fact and representative (with full power of substitution in the premises)substitution, and, by its execution hereof, and authorizes the Representative hereby accepts acting for such appointment.
(b) The Representative is hereby authorized (i) Person and in such Person’s name, place and stead, in any and all capacities to take all action necessary in connection with the acceptance, rejection do and determination of the Merger Consideration perform every act and the Final Adjustment Amount and the defense and/or settlement of any claims for Losses (including the power to compromise any indemnity claim on behalf of the Securityholders and to transact matters of litigation) for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, (ii) to give and receive all notices thing required or permitted to be given under this Agreement and the other agreements contemplated hereby to which all of the Securityholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative will deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to pay any expenses of the Securityholders or the Representative from the Representative Expense Account;
(ii) to execute and deliver all consents, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate after the Closing;
(iv) to do or refrain from doing any further act or deed on behalf of the Securityholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Securityholders could do if personally present; and
(v) to receive service of process in connection with any claims under this Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Securityholders, except as expressly provided herein and in the Escrow Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement (other than the Escrow Agreement), schedule, exhibit or the Disclosure Schedules.
(c) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Shareholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the voting power represented by the Company Shares issued and outstanding immediately prior to the Effective Time, will select another representative to fill such vacancy and such substituted representative will be deemed to be the Representative for all purposes of this Agreement.
(d) The Representative shall be entitled to: (i) rely upon the Percentage Schedule, (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 Securityholder or other party. All decisions and actions by the Representative, including the defense or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, will be binding upon all of the Securityholders, and no Securityholder will have the right to object, dissent, protest or otherwise contest the same.
(e) Parent will be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the Final Adjustment Amount and the settlement or compromise of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof and any other actions required to be taken by the Representative hereunder, and no party hereunder or Shareholder will have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the instructions or decisions of the Representative.
(f) The provisions of this Section 12.20 and the powers, immunities and rights to indemnification granted to the Representative and the Advisory Group hereunder: (i) are independent and severable, (ii) are irrevocable and coupled with an interest and shall survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder, (iii) will be enforceable notwithstanding any rights or remedies that any Shareholder may have done in connection with the transactions contemplated by this Agreement and the other Transaction Documents, as fully to all intents and purposes as such Person might or could do in person, including:
(i) to determine the time and place of Closing, to determine whether the conditions to effect the Closing set forth in Section 6.2 have been satisfied (or to waive such 76 conditions), and to terminate (or not to exercise the right to terminate) this Agreement as provided in Section 8.1;
(ii) to take any and all action on behalf of such Sellers from time to time as the Representative may deem necessary or desirable to fulfill the interests and purposes of this Agreement and the other Transaction Documents and to engage agents and representatives (including accountants and legal counsel) to assist in connection therewith, including the delivery of Purchased Shares and stock powers to Purchaser at Closing as contemplated hereby;
(iii) to deliver all notices required to be delivered by such Sellers or any of them;
(iv) to receive all notices required to be delivered to such Sellers or any of them;
(v) to negotiate, execute and deliver any amendments to and terminations of this Agreement and the other Transaction Documents and to prepare any modification to the Disclosure Schedule;
(vi) to give such orders and instructions as the Representative in its sole discretion shall survive determine with respect to this Agreement and the delivery of an assignment by any Securityholder other Transaction Documents and the transactions contemplated hereby and thereby;
(vii) to retain a portion of the whole Transaction Consideration for payment of expenses relating to the transactions or the obligations of the Company and its Subsidiaries, the Representative, or any fraction of his, her such Seller arising under or its interest in the Escrow Fund.
(g) The provisions of this Section 12.20 will be binding upon the heirs, legal representatives, successors and assigns of each Securityholders, and any references in connection with this Agreement to and maintain a Securityholder or the Securityholders will mean and include the successors to the rights reserve for a period of the Securityholders hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
(h) Certain Securityholders have entered into a letter agreement with the Representative to provide direction to the Representative time in connection with the performance payment of such expenses or obligations, and to incur and pay such expenses and obligations out of such reserve as the Representative deems appropriate in its services sole discretion;
(viii) to take all actions necessary to handle and resolve claims by or against Purchaser for indemnification by such Sellers under this Agreement Agreement;
(ix) to take all actions necessary to handle and resolve any adjustment to the Escrow Agreement Transaction Consideration pursuant to Section 1.4 or Section 1.5;
(such Securityholders, including their individual representatives, collectively hereinafter x) to retain and to pay legal counsel and other professionals in connection with any and all matters referred to herein or relating hereto or any other Transaction Documents (which counsel or other professionals may, but need not, be counsel or other professionals engaged by the Company);
(xi) to make, acknowledge, verify and file on behalf of any such Seller applications, consents to service of process and such other documents, undertakings or reports as the “Advisory Group”). Neither the Representative (together with its members, managers, directors, officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Representative Group”) shall may be liable for any liability, loss, damage, penalty, fine, cost or expense incurred required by Law as determined by the Representative while acting in good faith its, his or her sole discretion after consultation with counsel; and 77
(xii) to make, exchange, acknowledge, deliver, amend and terminate all such other contracts, powers of attorney, orders, receipts, notices, requests, instructions, certificates, letters and other writings, and in general to do all things and to take all actions, that the exercise Representative in its, his or her sole discretion may consider necessary or proper in connection with or to carry out the aforesaid, as fully as could such Sellers if personally present and acting. Each of its good faith judgment such Sellers hereby irrevocably grants unto said attorney-in-fact and arising out of agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the acceptance matters described above, as fully to all intents and purposes as the undersigned might or administration of its duties could do in person, hereby ratifying and confirming all that the Representative may lawfully do or the exercise of its rights hereunder (it being understood that any act cause to be done or omitted pursuant to the advice of counsel, public accountants or other independent experts experienced in the matter at issue shall be conclusive evidence by virtue hereof. Each of such good faith). Each Securityholder shall, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount Sellers further agrees not to exceed the proceeds actually received by such Securityholder in the Merger, indemnify, defend and hold harmless the Representative Group and its successors and assigns from and against take any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs, fees, judgments, amounts paid in settlement and expenses (including attorneys’ fees and court and other skilled professionals’ costs and in connection action inconsistent with seeking recovery from insurers) (collectively, “Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Representative Group pursuant to the terms of this Section 9.18 or with the actions (or decisions not to act) of the Representative hereunder, and in any case shall not take any action or other position under this Agreement without the consent of the Representative. To the extent of any inconsistency between the actions (or decisions not to act) of the Representative and of any such Seller hereunder, the actions (or decisions not to act) of the Representative shall control. Each of such Sellers further acknowledges and agrees that upon execution of this Agreement, in each case as such Representative Loss is incurred or suffered. The Representative shall be entitled to recover any Representative Losses reasonably incurred delivery by the Representative in connection with actions taken of any waiver, amendment, agreement, opinion, certificate or other documents executed by the Representative pursuant to the terms of this Agreement Section 9.18, such Seller shall be bound by such documents as fully as if such Seller had executed and delivered such documents, and any action (or the Escrow Agreement (including the hiring of legal counsel and other skilled professionals and the incurring of legal fees and costs), without the requirement of any consent or approval by Parent or any other Person. All of the indemnities and immunities granted decision not to the Representative Group under this Agreement shall survive the resignation or removal of Representative or any member of the Advisory Group and the Merger and/or any termination of this Agreement and the Escrow Agreement.
(iact) The Securityholders acknowledge that the Representative shall not be required to expend or risk its own funds taken or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or administration of its duties. The Representative Losses shall be satisfied (i) from the Representative Expense Account, (ii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i), to the extent of any amount of the Escrow Fund that has not been used to satisfy indemnification claims pursuant to Article VIII and that is otherwise to be released to the Securityholders under Sections 1.10(c)(i), 1.10(c)(ii), 1.11(c), or 1.11(d) and (iii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i) and (ii), from each Securityholder, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received implemented by such Securityholder in the Merger (including, with respect to the Transferring Sellers, the value (based on the Parent Price Per Share) of the shares of Parent Common Stock received pursuant to the Common Stock Purchase Agreement). As soon as practicable after the date on which the final obligation of the Representative under this Agreement and the Escrow Agreement have been discharged, the Representative shall remit any amounts remaining in the Representative Escrow Account to the Paying Agent (or, to the Surviving Corporation or such Person as designated by Parent). The Paying Agent shall promptly distribute such amounts to the Securityholders based on their respective Indemnification Pro Rata Percentages; provided, that, any amount payable to an Employee holder of an In-the-Money-Option shall be distributed to the Surviving Corporation who will disburse such amount, net binding upon all of applicable Tax withholdings, through the Company’s payrollSellers.
Appears in 1 contract
Sources: Stock Purchase Agreement (Fresh Del Monte Produce Inc)
Appointment of the Representative. (a) In order to efficiently administer efficiently the determination of, amongst other items, the Merger Consideration and the Final Adjustment Amount and the defense and/or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification indemnity by a Buyer Indemnitee pursuant to Section 8.02 Article IX hereof, ▇▇▇▇ ▇▇▇▇▇▇ is hereby appointed to serve as the Securityholders, by their adoption and approval of this Agreement, as well as, in certain cases, through separate instruments (including the Letters of Transmittal and Option Surrender Forms), irrevocably appoint the Representative as their exclusive agent, attorney in fact and representative (with the "REPRESENTATIVE") of the Shareholders. The Representative shall have full power of substitution in the premises)and authority to make, and, by its execution hereof, the Representative hereby accepts such appointment.
(b) The Representative is hereby authorized (i) to take all action necessary in connection with the acceptance, rejection and determination on behalf of the Merger Consideration and the Final Adjustment Amount and Shareholders, all decisions relating to the defense and/or settlement of any claims for Losses (including the power which any Buyer Indemnitee may claim to compromise any indemnity claim on behalf of the Securityholders and to transact matters of litigation) for which the Parent Indemnified Parties may be entitled to indemnification indemnity pursuant to Section 8.02 hereof, (ii) to give Article IX hereof and receive all notices required to be given under this Agreement and the other agreements contemplated hereby to which all of the Securityholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative will deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to pay any expenses of the Securityholders or the Representative from the Representative Expense Account;
(ii) to execute and deliver all consents, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate after the Closing;
(iv) to do or refrain from doing any further act or deed on behalf of the Securityholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Securityholders could do if personally present; and
(v) to receive service of process in connection with any claims under this Agreement. Notwithstanding the foregoing, the Representative shall have no obligation otherwise to act on behalf of the Securityholders, except as expressly provided herein and Shareholders in the Escrow all respects with respect to this Agreement, and for purposes of clarityincluding, there are no obligations of the Representative in any ancillary agreement (other than the Escrow Agreement), schedule, exhibit or the Disclosure Schedules.
(c) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such positionwithout limitation, the Shareholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the voting power represented by the Company Shares issued and outstanding immediately prior to the Effective Time, will select another representative to fill such vacancy and such substituted representative will be deemed to be the Representative for all purposes of this Agreement.
(d) The Representative shall be entitled to: (i) rely upon the Percentage Schedule, (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 Securityholder amendment or other partytermination thereof. All decisions and actions by the Representative, including the defense or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, will Representative shall be binding upon all of the SecurityholdersShareholders, and no Securityholder will Shareholder shall have the right to objectobject to, dissentdissent from, protest or otherwise contest the same.
(eb) Parent will be able Neither Parent, Acquisition Sub nor Surviving Corporation shall have the right to rely conclusively on the instructions and decisions of the Representative as object to, protest or otherwise contest any matter related to the determination of the Merger Consideration and the Final Adjustment Amount and the settlement or compromise of any claims procedures for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof and any other actions required to be action being taken by the Representative hereunderas between the Representative and the Shareholders. Parent, Acquisition Sub and Surviving Corporation hereby waive any claims they may have or assert, including those that may arise in the future, against the Representative, and no party hereunder or Shareholder will have any cause of action against Parent or Merger Sub its Affiliates, that relate to the Representative's role as such, including any claims for any action or inaction taken or not taken by Parent or Merger Sub the Representative in reliance upon the instructions or decisions of the Representativeconnection herewith.
(fc) The Each Shareholder that accepts payment of Merger Consideration as contemplated herein shall be deemed, by such acceptance of payment, or by their respective execution of the Letter of Transmittal, or by the approval of this Agreement by the holders of a majority of the outstanding Common Stock of the Company, as the case may be, to have agreed that (i) the provisions of this Section 12.20 and the powers, immunities and rights to indemnification granted to the Representative and the Advisory Group hereunder: (i) 9.05 are independent and severable, (ii) are irrevocable and coupled with an interest and shall survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder, (iii) will be enforceable notwithstanding any rights or remedies that any Shareholder may have in connection with the transactions contemplated by this Agreement Agreement, (ii) the remedy at law for any breach of the provisions of this Section 9.05 would be inadequate, (iii) any Shareholder shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if such Shareholder brings an action to enforce the provisions of this Section 9.05, and (iv) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Fund.
(g) The provisions of this Section 12.20 will 9.05 shall be binding upon the heirs, legal representatives, successors and assigns of each Securityholders, and any references in this Agreement to a Securityholder or the Securityholders will mean and include the successors to the rights of the Securityholders hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwiseShareholder.
(hd) Certain Securityholders In addition, by their approval of this Agreement, the Shareholders shall be deemed to have entered into a letter agreement with waived any claims they may have or assert, including those that may arise in the future, against the Representative to provide direction to and any of its Affiliates, for any action or inaction taken or not taken by the Representative in connection with herewith.
(e) Any notice or communication delivered by Parent, Acquisition Sub or the performance of its services under this Agreement Surviving Corporation to the Representative shall, as between Parent, Acquisition Sub and the Escrow Agreement (such SecurityholdersSurviving Corporation, including their individual representativeson the one hand, collectively hereinafter referred and the Shareholders, on the other, be deemed to as have been delivered to all Shareholders. Parent, Acquisition Sub and the “Advisory Group”). Neither the Representative (together with its members, managers, directors, officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Representative Group”) shall be liable for any liability, loss, damage, penalty, fine, cost or expense incurred by the Representative while acting in good faith and in the exercise of its good faith judgment and arising out of or in connection with the acceptance or administration of its duties or the exercise of its rights hereunder (it being understood that any act done or omitted pursuant to the advice of counsel, public accountants or other independent experts experienced in the matter at issue shall be conclusive evidence of such good faith). Each Securityholder shall, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger, indemnify, defend and hold harmless the Representative Group and its successors and assigns from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs, fees, judgments, amounts paid in settlement and expenses (including attorneys’ fees and court and other skilled professionals’ costs and in connection with seeking recovery from insurers) (collectively, “Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Representative Group pursuant to the terms of this Agreement, in each case as such Representative Loss is incurred or suffered. The Representative Surviving Corporation shall be entitled to recover rely exclusively upon any Representative Losses reasonably incurred communications or writings given or executed by the Representative in connection with actions taken by the Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel any claims for indemnity and other skilled professionals and the incurring of legal fees and costs), without the requirement of any consent or approval by Parent or any other Person. All of the indemnities and immunities granted to the Representative Group under this Agreement shall survive the resignation or removal of Representative or any member of the Advisory Group and the Merger and/or any termination of this Agreement and the Escrow Agreement.
(i) The Securityholders acknowledge that the Representative shall not be required to expend liable in any manner whatsoever for any action taken or risk its own funds not taken in reliance upon the actions taken or otherwise incur any financial liability in not taken or communications or writings given or executed by the exercise or performance of any of its powersRepresentative. Parent, rights, duties or privileges or administration of its duties. The Representative Losses shall be satisfied (i) from the Representative Expense Account, (ii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i), to the extent of any amount of the Escrow Fund that has not been used to satisfy indemnification claims pursuant to Article VIII Acquisition Sub and that is otherwise to be released to the Securityholders under Sections 1.10(c)(i), 1.10(c)(ii), 1.11(c), or 1.11(d) and (iii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i) and (ii), from each Securityholder, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger (including, with respect to the Transferring Sellers, the value (based on the Parent Price Per Share) of the shares of Parent Common Stock received pursuant to the Common Stock Purchase Agreement). As soon as practicable after the date on which the final obligation of the Representative under this Agreement and the Escrow Agreement have been discharged, the Representative shall remit any amounts remaining in the Representative Escrow Account to the Paying Agent (or, to the Surviving Corporation or such Person as designated by Parent). The Paying Agent shall promptly distribute such amounts to the Securityholders based on their respective Indemnification Pro Rata Percentages; provided, that, any amount payable to an Employee holder of an In-the-Money-Option shall be distributed entitled to disregard any notices or communications given or made by the Surviving Corporation who will disburse such amount, net of applicable Tax withholdings, Shareholders in connection with any claims for indemnity unless given or made through the Company’s payrollRepresentative.
Appears in 1 contract
Sources: Merger Agreement (Magnetek Inc)
Appointment of the Representative. (a) In order to administer efficiently the determination of, amongst other items, the Merger Consideration and the Final Adjustment Amount and the defense and/or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, the Securityholders, by their adoption and approval of this Agreement, as well as, in certain cases, through separate instruments (including the Letters of Transmittal and Option Surrender Forms), Each Stockholder hereby irrevocably appoint appoints the Representative as their exclusive such Stockholder’s true and lawful attorney-in-fact, proxy and agent, attorney in fact and representative (with full power powers of substitution and resubstitution, in the premises)such Stockholder’s name, andplace and stead, by its execution hereofin any and all capacities, the Representative hereby accepts such appointment.
(b) The Representative is hereby authorized (i) to take all action necessary in connection with the acceptance, rejection and determination of the Merger Consideration and the Final Adjustment Amount and the defense and/or settlement of any claims for Losses (including the power to compromise any indemnity claim on behalf of the Securityholders and to transact matters of litigation) for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, (ii) to give and receive all notices required to be given under this Agreement and the other agreements contemplated hereby to which all of the Securityholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative will deem necessary or appropriate in connection with the transactions contemplated by this Agreement, granting unto said attorney-in-fact, proxy and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with this Agreement and the transactions contemplated by this Agreement as fully to all intents and purposes as such Stockholder might or could do in person, including for the powerpurposes of:
(i) to pay taking any expenses action on behalf of the Securityholders Stockholders or any individual Stockholder that may be necessary or desirable, as determined by the Representative from in its sole discretion, in connection with the Representative Expense Accountindemnification provisions set forth in Article VII or Article XI and the amendment of this Agreement in accordance with Section 12.2;
(ii) to execute and deliver all consentstaking any action on behalf of the Stockholders or any individual Stockholder that may be necessary or desirable, waivers, ancillary agreements, stock powers, certificates and documents that as determined by the Representative deems necessary or appropriate in its sole discretion, in connection with negotiating or entering into settlements, resolutions and compromises with respect to the consummation of the transactions contemplated by adjustments or consideration payable under this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that accepting notices on behalf of the Representative deems necessary Stockholders or appropriate after the Closingany individual Stockholder in accordance with Section 12.4;
(iv) to do or refrain from doing any further act or deed executing and delivering, on behalf of the Securityholders that Stockholders or any individual Stockholder, any notices, documents or certificates to be executed by the Representative deems necessary Stockholders or appropriate any individual Stockholder in its sole discretion relating to the subject matter of connection with this Agreement as fully and completely as the Securityholders could do if personally presenttransactions contemplated by this Agreement; and
(v) to receive service granting any consent or approval on behalf of process in connection with the Stockholders or any claims individual Stockholder under this Agreement. Notwithstanding As the foregoingrepresentative of the Stockholders or any individual Stockholder under this Agreement, the Representative shall act as the representative, agent and proxy for each Stockholder and shall have no obligation authority to act on behalf of the Securityholders, except as expressly provided herein and bind each Stockholder in the Escrow accordance with this Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement (other than the Escrow Agreement), schedule, exhibit or the Disclosure Schedules.
(c) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Shareholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the voting power represented by the Company Shares issued and outstanding immediately prior to the Effective Time, will select another representative to fill such vacancy and such substituted representative will be deemed to be the Representative for all purposes of this Agreement.
(d) The Representative Stockholder shall be entitled to: (i) rely upon the Percentage Schedule, (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 Securityholder or other party. All decisions and actions by the Representative, including the defense or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, will be binding upon all of the Securityholders, and no Securityholder will have the right to object, dissent, protest or otherwise contest the same.
(e) Parent will be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the Final Adjustment Amount and the settlement or compromise of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof and any other actions required to be taken by the Representative hereunder, and no party hereunder or Shareholder will have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the instructions or decisions of the Representative.
(f) The provisions of this Section 12.20 and the powers, immunities and rights to indemnification granted to the Representative and the Advisory Group hereunder: (i) are independent and severable, (ii) are irrevocable and coupled with an interest and shall survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder, (iii) will be enforceable notwithstanding any rights or remedies that any Shareholder may have in connection with the transactions contemplated by this Agreement and (iv) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Fund.
(g) The provisions of this Section 12.20 will be binding upon the heirs, legal representatives, successors and assigns of each Securityholders, and any references in this Agreement to a Securityholder or the Securityholders will mean and include the successors to the rights of the Securityholders hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
(h) Certain Securityholders have entered into a letter agreement with the Representative to provide direction to the Representative in connection with the performance of its services under this Agreement and the Escrow Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative (together with its members, managers, directors, officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Representative Group”) shall be liable for any liability, loss, damage, penalty, fine, cost or expense incurred by the Representative while acting in good faith and in the exercise of its good faith judgment and arising out of or in connection with the acceptance or administration of its duties or the exercise of its rights hereunder (it being understood that any act done or omitted pursuant to the advice of counsel, public accountants or other independent experts experienced in the matter at issue shall be conclusive evidence of such good faith). Each Securityholder shall, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger, indemnify, defend and hold harmless the Representative Group and its successors and assigns from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs, fees, judgments, amounts paid in settlement and expenses (including attorneys’ fees and court and other skilled professionals’ costs and in connection with seeking recovery from insurers) (collectively, “Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Representative Group pursuant to the terms of this Agreement, in each case as such Representative Loss is incurred or suffered. The Representative shall have no duties or obligations hereunder, including any fiduciary duties, except those set forth herein, and such duties and obligations shall be entitled to recover any Representative Losses reasonably incurred determined solely by the Representative in connection with actions taken by the Representative pursuant to the terms express provisions of this Agreement or the Escrow Agreement (including the hiring of legal counsel and other skilled professionals and the incurring of legal fees and costs), without the requirement of any consent or approval by Parent or any other Person. All of the indemnities and immunities granted to the Representative Group under this Agreement shall survive the resignation or removal of Representative or any member of the Advisory Group and the Merger and/or any termination of this Agreement and the Escrow Agreement.
(i) The Securityholders acknowledge that the Representative 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 administration of its duties. The Representative Losses shall be satisfied (i) from the Representative Expense Account, (ii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i), to the extent of any amount of the Escrow Fund that has not been used to satisfy indemnification claims pursuant to Article VIII and that is otherwise to be released to the Securityholders under Sections 1.10(c)(i), 1.10(c)(ii), 1.11(c), or 1.11(d) and (iii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i) and (ii), from each Securityholder, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger (including, with respect to the Transferring Sellers, the value (based on the Parent Price Per Share) of the shares of Parent Common Stock received pursuant to the Common Stock Purchase Agreement). As soon as practicable after the date on which the final obligation of the Representative under this Agreement and the Escrow Agreement have been discharged, the Representative shall remit any amounts remaining in the Representative Escrow Account to the Paying Agent (or, to the Surviving Corporation or such Person as designated by Parent). The Paying Agent shall promptly distribute such amounts to the Securityholders based on their respective Indemnification Pro Rata Percentages; provided, that, any amount payable to an Employee holder of an In-the-Money-Option shall be distributed to the Surviving Corporation who will disburse such amount, net of applicable Tax withholdings, through the Company’s payroll.
Appears in 1 contract
Appointment of the Representative. (a) In order to administer efficiently the determination of, amongst other items, and payment of the Merger Consideration (and the Final Adjustment Amount any adjustment thereto pursuant to Section 2.05 hereof) and the defense and/or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled or Actions related to indemnification pursuant to Section 8.02 hereofthis Agreement, the Securityholderseach Company Stockholder, by their adoption and approval his, her or its acceptance of this Agreementany portion of the Merger Consideration, as well as, in certain cases, through separate instruments (including the Letters of Transmittal and Option Surrender Forms)instruments, irrevocably appoint appoints the Representative as their exclusive his, her or its agent, attorney in fact fact, proxy and representative (with full power of substitution in the premises), and, by its execution hereof, the Representative hereby ▇▇▇▇▇▇ accepts such appointment.
(b) The Representative is hereby authorized (i) to take all action necessary in connection with the acceptance, rejection rejection, determination and determination payment of the Merger Consideration (and the Final Adjustment Amount any adjustment thereto pursuant to Section 2.05 hereof) and the defense and/or settlement of any claims for Losses (including the power or Actions related to compromise any indemnity claim on behalf of the Securityholders and to transact matters of litigation) for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereofthis Agreement, (ii) to give and receive all notices required to be given under this Agreement, the Escrow Agreement and the other agreements contemplated hereby to which all of the Securityholders Company Stockholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative will shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including including, without limitation, the power:
(i) to execute and deliver the Escrow Agreement and any amendments thereto as the representative of the Company Stockholders; to execute any instructions or directions to the Escrow Agent with respect to disbursements or other matters thereunder; to pay any expenses of the Securityholders Company Stockholders or the Representative from the Adjustment Escrow Amount (to the extent such amounts are released to the Company Stockholders) or the Representative Expense AccountHoldback Amount; and to take such further actions under the Escrow Agreement as the Representative deems to be necessary or appropriate;
(ii) to execute and deliver all consentsamendments, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate appropriate, whether prior to, at or after the Closing;
(iv) to receive funds, make payments of funds, and give receipts for funds;
(v) to receive funds for the payment of expenses of the Company Stockholders (including, without limitation, the Representative Holdback Amount), to deposit such funds in such accounts as the Representative deems appropriate and to apply such funds in payment for such expenses;
(vi) to do or refrain from doing any further act or deed on behalf of the Securityholders Company Stockholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Securityholders Company Stockholders could do if personally present; and
(vvii) to receive service of process in connection with with, and to defend and/or settle, any claims or Actions under this Agreement. Notwithstanding Agreement on behalf of such Company Stockholder.
(c) The Representative requires that a portion of the foregoing, Merger Consideration in an amount equal to the Representative shall have no obligation to act Holdback Amount be withheld by (and deposited with) the Representative, on behalf of the SecurityholdersCompany Stockholders, except as expressly provided herein and in the Escrow Agreement, and for purposes of clarity, there are no to satisfy potential future obligations of the Company Stockholders; provided that the portion of the Representative Holdback Amount delivered to, and held by, the Representative on behalf of each Company Stockholder shall be determined according to the aggregate Per Share Portions represented by such Company Stockholder’s Company Stock and Options. The Representative Holdback Amount shall be retained by the Representative for such time as the Representative shall determine in any ancillary agreement (other than its sole discretion. Any remaining amounts from the Escrow Agreement), schedule, exhibit or Representative Holdback ▇▇▇▇▇▇ returned to the Disclosure SchedulesCompany Stockholders shall be distributed to the Company Stockholders based upon the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder.
(cd) If the Representative needs to make any payments to Option Holders following the Closing, Parent agrees to use commercially reasonable efforts to cause the Company and its Subsidiaries to make such payments through the Company’s or such Subsidiaries’ payroll systems.
(e) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Shareholders Company Stockholders (or, if applicable, their respective heirs, legal representatives, successors and permitted assigns) who held a majority of the voting power represented by the Company Shares Common Stock issued and outstanding immediately prior to the Effective Time, will Time shall select another representative to fill such vacancy vacancy, and such substituted representative will shall be deemed to be the Representative for all purposes of this Agreement.
(df) The All decisions, actions and instructions by the Representative shall be entitled to: (i) rely upon the Percentage Schedule, (ii) rely upon any signature believed by it to be genuine, conclusive and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Securityholder or other party. All decisions and actions by the Representative, including the defense or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, will be binding upon all of the SecurityholdersCompany Stockholders, and no Securityholder will Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same. No Party or Company Stockholder shall have any cause of action against the Representative for any action taken or not taken, decision made or instruction given by the Representative under this Agreement, except for Fraud by the Representative.
(eg) Parent will ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Sub shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination and payment of the Merger Consideration (and the Final Adjustment Amount and the settlement or compromise of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification adjustment thereto pursuant to Section 8.02 hereof 2.05 hereof) and any other actions required or permitted to be taken by the Representative hereunder, and no party hereunder or Shareholder will Party, Company Stockholder shall have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the written instructions or decisions of the Representative.
(fh) The provisions of this Section 12.20 and the powers, immunities and rights to indemnification granted to the Representative and the Advisory Group hereunder: (i) 9.17 are independent and severable, (ii) are irrevocable and coupled with an interest and shall survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder, (iii) will be enforceable notwithstanding any rights or remedies that any Shareholder Company Stockholder may have in connection with the transactions contemplated by this Agreement and (iv) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow FundAgreement.
(gi) The provisions of this Section 12.20 will 9.17 shall be binding upon the heirs, legal representatives, successors and permitted assigns of each SecurityholdersCompany Stockholder, and any references in this Agreement to a Securityholder or the Securityholders will Company Stockholder shall mean and include the successors to the rights of the Securityholders Company Stockholders hereunder, whether pursuant to testamentary disposition, the Laws laws of descent and distribution or otherwise.
(hj) Certain Securityholders have entered into a letter agreement with the Representative to provide direction to All reasonable fees and expenses incurred by the Representative in connection with the performance of its services under this Agreement shall be paid by the Company Stockholders on a pro rata basis based on the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder; provided that the Representative shall first make payment of such fees and expenses from the Representative Holdback Amount and the Representative shall be authorized to withhold from any distribution from the Adjustment Escrow Agreement (Account made to the Company Stockholders any amounts reasonably anticipated to be necessary to pay for such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither reasonable fees and expenses in excess of the Representative Holdback Amount.
(together with its members, managers, directors, officers, contractors, agents and employeesk) nor any member of the Advisory Group (collectively, the “Representative Group”) The Company Stockholders shall be liable for any liability, loss, damage, penalty, fine, cost or expense incurred by the Representative while acting in good faith and in the exercise of its good faith judgment and arising out of or in connection with the acceptance or administration of its duties or the exercise of its rights hereunder (it being understood that any act done or omitted pursuant to the advice of counsel, public accountants or other independent experts experienced in the matter at issue shall be conclusive evidence of such good faith). Each Securityholder shall, severally and not jointly and (in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Mergeraccordance with their Per Share Portions), indemnify, defend indemnify and hold harmless the Representative Group and its successors and assigns from and against against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, demands, suits, actions, causes of actiondamages and expenses, losses, damages, obligations, liabilities, costs, fees, judgments, amounts paid in settlement and expenses (including reasonable attorneys’ fees and court and other skilled professionals’ costs disbursements, arising out of and in connection with seeking recovery from insurers) its activities as the Representative under this Agreement, the Escrow Agreement and the other agreements contemplated hereby (collectively, “Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Representative Group pursuant to the terms of this Agreement), in each case as such Representative Loss is incurred suffered or suffered. The incurred; provided, that in the event that it is finally adjudicated that a Representative shall be entitled to recover any Representative Losses reasonably incurred Loss was caused by Fraud by the Representative in connection with actions taken by the Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and other skilled professionals and the incurring of legal fees and costs)Representative, without the requirement of any consent or approval by Parent or any other Person. All of the indemnities and immunities granted to the Representative Group under this Agreement shall survive the resignation or removal of Representative or any member of the Advisory Group and the Merger and/or any termination of this Agreement and the Escrow Agreement.
(i) The Securityholders acknowledge that the Representative shall not be required reimburse the Company Stockholders the amount of such indemnified Representative Loss attributable 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 administration of its dutiessuch Fraud. The Representative Losses shall be satisfied (i) first from the Representative Expense AccountHoldback Amount and then, (ii) to the extent the amount of the Representative Losses exceeds amounts amount available to the Representative under (i), to the extent of any amount of the Escrow Fund that has not been used to satisfy indemnification claims pursuant to Article VIII and that is otherwise to be released to the Securityholders under Sections 1.10(c)(i), 1.10(c)(ii), 1.11(c), or 1.11(d) and (iii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i) and (ii)Holdback Amount, from each Securityholderthe Company Stockholders, severally and not jointly and (in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger (including, accordance with respect to the Transferring Sellers, the value (based on the Parent Price their Per Share) of the shares of Parent Common Stock received pursuant to the Common Stock Purchase AgreementShare Portions). As soon as practicable after the date on which the final obligation of the Representative under this Agreement and the Escrow Agreement have been discharged, the Representative shall remit any amounts remaining in the Representative Escrow Account to the Paying Agent (or, to the Surviving Corporation or such Person as designated by Parent). The Paying Agent shall promptly distribute such amounts to the Securityholders based on their respective Indemnification Pro Rata Percentages; provided, that, any amount payable to an Employee holder of an In-the-Money-Option shall be distributed to the Surviving Corporation who will disburse such amount, net of applicable Tax withholdings, through the Company’s payroll.
Appears in 1 contract
Appointment of the Representative. (a) In order The undersigned acknowledges, agrees, and accepts that pursuant to administer efficiently the determination of, amongst other items, the Merger Consideration Agreement and on behalf of the Final Adjustment Amount undersigned and all of his, hers or its affiliates, heirs, personal representatives, assigns, and successors, TH ▇▇▇ ▇▇▇▇▇▇ Advisors, L.P. is authorized, appointed and empowered to serve as the defense and/or settlement representative of any claims for Losses for which each Seller Party with respect to the Parent Indemnified Parties may matters expressly set forth in the Merger Agreement to be entitled to indemnification pursuant to Section 8.02 hereofperformed by Seller Representative, the Securityholders, by their adoption and approval of this Agreement, as well as, in certain cases, through separate instruments (including the Letters of Transmittal and Option Surrender Forms), irrevocably appoint the Representative as their exclusive agent, attorney in fact and representative (with full power of substitution substitution, to the extent, and subject to the limitations, set forth in the premises), and, by its execution hereof, the Representative hereby accepts such appointment.
(b) The Representative Merger Agreement. This appointment is hereby authorized (i) to take all action necessary in connection with the acceptance, rejection and determination not as an agent but as a term of the Merger Consideration contemplated by the Merger Agreement and the Final Adjustment Amount and the defense and/or settlement accordingly such appointment is irrevocable by action of any claims for Losses (including the power to compromise any indemnity claim on behalf of the Securityholders and to transact matters of litigation) for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereofSeller Party. Further, (ii) to give and receive all notices required to be given under this Agreement and the other agreements contemplated hereby to which all of the Securityholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative will deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to pay any expenses of the Securityholders or the Representative from the Representative Expense Account;
(ii) to execute and deliver all consents, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate after the Closing;
(iv) to do or refrain from doing any further act or deed on behalf of the Securityholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Securityholders could do if personally present; and
(v) to receive service of process in connection with any claims under this Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Securityholders, except as expressly provided herein and in the Escrow Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement (other than the Escrow Agreement), schedule, exhibit or the Disclosure Schedules.
(c) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Shareholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the voting power represented by the Company Shares issued and outstanding immediately prior to the Effective Time, will select another representative to fill such vacancy and such substituted representative will be appointment is deemed to be the Representative for all purposes of this Agreement.
(d) The Representative shall be entitled to: (i) rely upon the Percentage Schedule, (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 Securityholder or other party. All decisions and actions by the Representative, including the defense or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, will be binding upon all of the Securityholders, and no Securityholder will have the right to object, dissent, protest or otherwise contest the same.
(e) Parent will be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the Final Adjustment Amount and the settlement or compromise of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof and any other actions required to be taken by the Representative hereunder, and no party hereunder or Shareholder will have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the instructions or decisions of the Representative.
(f) The provisions of this Section 12.20 and the powers, immunities and rights to indemnification granted to the Representative and the Advisory Group hereunder: (i) are independent and severable, (ii) are irrevocable and coupled with an interest and shall survive may not be revoked for any reason, except as expressly otherwise provided in the death, incompetence, bankruptcy or liquidation Merger Agreement. The undersigned hereby agrees to be bound by (a) the appointment of Seller Representative as the undersigned’s representative for the purposes of the respective Securityholder, (iii) will be enforceable notwithstanding any rights or remedies that any Shareholder may have in connection with the transactions contemplated by this Merger Agreement and (ivb) shall survive the delivery taking by Seller Representative, in its capacity as such, of an assignment any and all actions and the making of any decisions required or permitted to be taken by any Securityholder it under the Merger Agreement and the Ancillary Documents (including the Escrow Agreement) for and on behalf of the whole or any fraction of Seller Parties. The undersigned agrees, severally, but not jointly, based on his, her or its interest in respective percentage of the Escrow Fund.
(g) The provisions of this Section 12.20 will be binding upon the heirs, legal representatives, successors and assigns of each Securityholders, and any references in this Agreement to a Securityholder or the Securityholders will mean and include the successors Merger Consideration paid to the rights undersigned in accordance with the terms of the Securityholders hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
(h) Certain Securityholders have entered into a letter agreement with the Representative to provide direction to the Representative in connection with the performance of its services under this Agreement and the Escrow Merger Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative (together with its members, managers, directors, officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Representative Group”) shall be liable for any liability, loss, damage, penalty, fine, cost or expense incurred by the Representative while acting determined in good faith by Seller Representative), to indemnify and in hold harmless Seller Representative from any and all reasonable losses, liabilities and expenses (including the exercise reasonable fees and expenses of its good faith judgment and counsel) arising out of or in connection with Seller Representative’s execution and performance (solely in its capacity as Seller Representative and not in its capacity as a Seller Party) of the acceptance Merger Agreement and the Ancillary Documents, except for fraud or administration of its duties or the exercise of its rights hereunder (it being understood that any act done or omitted pursuant willful misconduct by Seller Representative. The undersigned agrees and consents to the advice payment to Seller Representative of counsel, public accountants or other independent experts experienced the Holdback Amount in the matter at issue shall be conclusive evidence of such good faith). Each Securityholder shall, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger, indemnify, defend and hold harmless the Representative Group and its successors and assigns from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs, fees, judgments, amounts paid in settlement and expenses (including attorneys’ fees and court and other skilled professionals’ costs and in connection accordance with seeking recovery from insurers) (collectively, “Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Representative Group pursuant to the terms of this the Merger Agreement, in each case as such Representative Loss is incurred or suffered. The Representative undersigned agrees to otherwise abide by and be bound by the terms of the Merger Agreement relevant to Seller Representative. Buyer, the other Buyer Indemnitees, and the Escrow Agent shall be entitled to recover conclusively rely upon any Representative Losses reasonably incurred action taken and any agreements or amendments entered into by the Seller Representative in connection with actions taken by the Representative pursuant its capacity as such and shall have no liability or obligation to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and other skilled professionals and the incurring of legal fees and costs), without the requirement of any consent or approval by Parent or any other Person. All Seller Party of the indemnities and immunities granted to the Representative Group under this Agreement shall survive the resignation or removal of Representative or any member of the Advisory Group and the Merger and/or any termination of this Agreement and the Escrow AgreementCompany in respect thereof.
(i) The Securityholders acknowledge that the Representative 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 administration of its duties. The Representative Losses shall be satisfied (i) from the Representative Expense Account, (ii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i), to the extent of any amount of the Escrow Fund that has not been used to satisfy indemnification claims pursuant to Article VIII and that is otherwise to be released to the Securityholders under Sections 1.10(c)(i), 1.10(c)(ii), 1.11(c), or 1.11(d) and (iii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i) and (ii), from each Securityholder, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger (including, with respect to the Transferring Sellers, the value (based on the Parent Price Per Share) of the shares of Parent Common Stock received pursuant to the Common Stock Purchase Agreement). As soon as practicable after the date on which the final obligation of the Representative under this Agreement and the Escrow Agreement have been discharged, the Representative shall remit any amounts remaining in the Representative Escrow Account to the Paying Agent (or, to the Surviving Corporation or such Person as designated by Parent). The Paying Agent shall promptly distribute such amounts to the Securityholders based on their respective Indemnification Pro Rata Percentages; provided, that, any amount payable to an Employee holder of an In-the-Money-Option shall be distributed to the Surviving Corporation who will disburse such amount, net of applicable Tax withholdings, through the Company’s payroll.
Appears in 1 contract
Appointment of the Representative. (a) In order Each Stockholder hereby irrevocably appoints ▇.▇. ▇▇▇▇▇▇▇ Equity Partners III, L.L.C. to administer efficiently the determination ofact as such Stockholder's agent, amongst other itemsattorney-in-fact and representative to do any and all things and to execute any and all documents in such Stockholder's name, the Merger Consideration place and stead, in any way which such Stockholder could do if personally present, in connection with this Agreement and the Final Adjustment Amount and transactions contemplated hereby, including, without limitation, to amend, cancel or extend, or waive the defense and/or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, the Securityholders, by their adoption and approval terms of this Agreement, as well as, to act on each such Stockholder's behalf in certain cases, through separate instruments (including the Letters of Transmittal and Option Surrender Forms), irrevocably appoint the Representative as their exclusive agent, attorney in fact and representative (with full power of substitution in the premises), and, by its execution hereof, the Representative hereby accepts such appointment.
(b) The Representative is hereby authorized (i) to take all action necessary in connection with the acceptance, rejection and determination of the Merger Consideration and the Final Adjustment Amount and the defense and/or settlement of any claims for Losses (including the power to compromise any indemnity claim on behalf of the Securityholders and to transact matters of litigation) for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, (ii) to give and receive all notices required to be given under dispute involving this Agreement and the other agreements contemplated hereby to which all of the Securityholders are subject, and (iii) to do or refrain from doing all such further acts and things, things and to execute all such documents as the Representative will shall deem necessary or appropriate in connection with this Agreement and the transactions contemplated by this Agreementhereby, including in all events in the Representative's sole and absolute discretion, including, without limitation, the power:
(i) to pay any expenses act for each such Stockholder with regard to all matters pertaining to the post-closing purchase price adjustment referred to in Section 3.3 of the Securityholders or Merger Agreement and the Representative from indemnification referred to in Article IX of the Representative Expense AccountMerger Agreement, including the power to settle any claim on behalf of any such Stockholder and to transact matters of litigation and arbitration;
(ii) to execute and deliver all consents, waivers, ancillary agreements, stock powerscertificates, certificates notices and documents that the Representative deems necessary or appropriate documents, and to make representations and warranties therein, on behalf of each such Stockholder in connection with this Agreement and the consummation of the transactions contemplated by this Agreementhereby;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate after the Closing;
(iv) to do or refrain from doing any further act or deed on behalf of the Securityholders that the Representative deems necessary or appropriate in its sole discretion each such Stockholder relating to the subject matter of this Agreement as fully and completely as the Securityholders such Stockholder could do if personally present; and
(viv) to receive service all notices on behalf of process each such Stockholder in connection with any claims or matters under this Agreement. Notwithstanding the foregoing, .
(b) The appointment of the Representative shall have no obligation to act on behalf be deemed coupled with an interest and shall be irrevocable, surviving death or disability of the Securityholders, except as expressly provided herein and in the Escrow Agreementany Stockholder, and for purposes of clarityshall be binding upon the executors, there are no obligations of the Representative in any ancillary agreement (other than the Escrow Agreement), schedule, exhibit or the Disclosure Schedules.
(c) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Shareholders (or, if applicable, their respective heirs, legal representatives, successors and assignsassigns of each Stockholder. All notices delivered by Parent or Escrow Agent under this Agreement to the Representative (whether pursuant hereto or otherwise) who held a majority for the benefit of each Stockholder shall constitute notice to each of the voting power represented by the Company Shares issued Stockholders, and outstanding immediately prior to the Effective Time, will select another representative to fill such vacancy and such substituted representative will be deemed to be the Representative for all purposes shall use its commercially reasonable best efforts to timely deliver to each Stockholder a copy of this Agreementeach such notice delivered by Parent or Escrow Agent, as the case may be, hereunder.
(dc) The actions, decisions and instructions of the Representative taken, made or given pursuant to the authority granted to the Representative pursuant to this Section 3 shall be entitled to: (i) rely conclusive and binding upon the Percentage Scheduleeach Stockholder and each Stockholder's heirs, (ii) rely upon any signature believed by it to be genuinerepresentatives, successors and assigns, as applicable, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Securityholder such persons or other party. All decisions and actions by the Representative, including the defense or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, will be binding upon all of the Securityholders, and no Securityholder will entities shall not have the right to object, dissent, protest or otherwise contest the same.
(ed) Parent will be able to rely conclusively on the instructions and decisions of the The Representative as to the determination of the Merger Consideration and the Final Adjustment Amount and the settlement or compromise of any claims for Losses for which the Parent Indemnified Parties may shall be entitled to indemnification pursuant rely, and shall be fully protected in relying, upon any statements furnished to Section 8.02 hereof and the Representative by any Stockholder or Parent, or any other actions required to be taken evidence deemed by the Representative hereunderto be reliable. The Representative shall be fully justified in failing or refusing to take any action under this Agreement. The Representative shall be entitled to act on the advice of counsel selected by such Representative, and no party hereunder the Representative shall be fully protected in respect of any action taken, omitted or Shareholder will have any cause suffered by it in good faith in accordance with the opinion of action against Parent such counsel. The Representative shall be entitled to retain counsel and to incur such expenses as the Representative deems to be necessary or Merger Sub appropriate in connection with the performance of the Representative's obligations under this Agreement, and all such fees and expenses (including reasonable attorneys fees and expenses) incurred by the Representative shall be borne by each of the Stockholders (pro rata based on each Stockholder's percentage ownership determined as provided in Section 8(e)).
(e) The Representative shall not be liable for any error of judgment, or for any act done or omitted by it, or for any mistake in fact or law, or for anything that it may do or refrain from doing in connection herewith; provided, however, that notwithstanding any other provision in this Agreement, the Representative shall be liable for its willful misconduct or gross negligence or breach of this Agreement.
(f) The Stockholders hereby agree to indemnify the Representative (in its capacity as such) ratably according to each Stockholder's percentage ownership (determined as provided in Section 8(e)) against, and to hold the Representative (in its capacity as such) harmless from, any and all Losses of whatever kind that may at any time be imposed upon, incurred by or asserted against the Representative in such capacity in any way relating to or arising out of the Representative's actions or failure to take action taken by Parent pursuant to this Agreement or Merger Sub in reliance upon connection herewith in such capacity; provided, that no Stockholder shall be liable for the instructions payment of any portion of such Losses resulting solely from the willful misconduct or decisions gross negligence of the Representative.
(fg) The provisions of this Section 12.20 and the powers, immunities and rights to indemnification granted to Representative hereby accepts its appointment as the Representative and the Advisory Group hereunder: (i) are independent authorizations set forth above. The Representative shall not have any duties or responsibilities except those expressly set forth in this Agreement, and severableno implied covenants, (ii) are irrevocable and coupled functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or shall otherwise exist with an interest and respect to the Representative. No provision of this Section 3 may be amended without the consent of the Representative. The agreements in this Section 3 shall survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder, (iii) will be enforceable notwithstanding any rights or remedies that any Shareholder may have in connection with the transactions contemplated by this Agreement and (iv) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Fund.
(g) The provisions termination of this Section 12.20 will be binding upon the heirs, legal representatives, successors and assigns of each Securityholders, and any references in this Agreement to a Securityholder or the Securityholders will mean and include the successors to the rights of the Securityholders hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwiseAgreement.
(h) Certain Securityholders have entered into a letter agreement with the Representative Parent and Escrow Agent shall be entitled to provide direction to the Representative in connection with the performance of its services under this Agreement and the Escrow Agreement (such Securityholdersrely, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative (together with its members, managers, directors, officers, contractors, agents and employees) nor any member being binding upon each of the Advisory Group (collectivelyStockholders, upon any document or other paper believed by Parent or Escrow Agent to be genuine and correct and to have been signed by the “Representative Group”) Representative, and Parent and Escrow Agent shall not be liable to any Stockholder for any liability, loss, damage, penalty, fine, cost or expense incurred by the Representative while acting in good faith and in the exercise of its good faith judgment and arising out of or in connection with the acceptance or administration of its duties or the exercise of its rights hereunder (it being understood that any act done or omitted pursuant to the advice of counsel, public accountants or other independent experts experienced in the matter at issue shall be conclusive evidence of such good faith). Each Securityholder shall, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger, indemnify, defend and hold harmless the Representative Group and its successors and assigns from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs, fees, judgments, amounts paid in settlement and expenses (including attorneys’ fees and court and other skilled professionals’ costs and in connection with seeking recovery from insurers) (collectively, “Representative Losses”) arising as a result of or incurred in connection with any actions action taken or omitted to be taken by Parent or Escrow Agent in such reliance. The Representative shall have the sole and exclusive right on behalf of the Stockholders to take any action or provide any waiver pursuant to this Agreement.
(i) Immediately upon the payment by the Representative Group of any fees and expenses (including reasonable attorneys fees and expenses) pursuant to the terms provisions of this AgreementSection 3(d) hereof, the portion of such fees and expenses (the "Stockholder Fees") owing by each of the Stockholders (other than ▇.▇. ▇▇▇▇▇▇▇ III, L.P., ▇.▇. ▇▇▇▇▇▇▇ ▇▇, L.P. and Whitney Strategic Partners III, L.P.) (the "Minority Stockholders") as calculated pursuant to Section 3(d) hereof will accrue interest from the date paid at the rate of 7% per annum up to and through the date on which the Representative is reimbursed in each case as full for such Representative Loss is incurred or sufferedStockholder Fees. The Representative shall be entitled to recover any Representative Losses reasonably incurred be reimbursed for the Stockholder Fees from the Escrow Account. From time to time following payment by the Representative in connection with actions taken by of any fees or expenses, the Representative pursuant may deliver to the terms Escrow Agent a certificate substantially in the form of this Agreement or Annex X attached hereto (the Escrow Agreement (including the hiring of legal counsel and other skilled professionals and the incurring of legal fees and costs), without the requirement of any consent or approval by Parent or any other Person. All of the indemnities and immunities granted to the "Representative Group under this Agreement shall survive the resignation or removal of Representative or any member of the Advisory Group and the Merger and/or any termination of this Agreement and the Escrow Agreement.
Fee Certificate") stating (i) The Securityholders acknowledge that the Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in total amount of the exercise or performance Stockholder Fees as of any of its powerssuch date, rights, duties or privileges or administration of its duties. The Representative Losses shall be satisfied (i) from the Representative Expense Accountif any, (ii) the number of whole Escrow Shares (rounding to the extent nearest whole share) otherwise deliverable to the Minority Stockholders to be delivered, notwithstanding any other provision of this Agreement, to the Representative, as is equal to the quotient obtained by dividing (x) the amount of the Representative Losses exceeds amounts available to Stockholder Fees as of such date by (y) the Representative under (i), to the extent of any amount of the Escrow Fund that has not been used to satisfy indemnification claims pursuant to Article VIII and that is otherwise to be released to the Securityholders under Sections 1.10(c)(i), 1.10(c)(ii), 1.11(c), or 1.11(d) Parent Common Share Price and (iii) each Minority Stockholder's pro rata portion of such shares (determined as provided in Section 8(e) hereof) to be delivered pursuant to subsection (ii) immediately above. Notwithstanding anything to the contrary set forth herein, the Escrow Agent shall deliver the number of Escrow Shares determined pursuant to the immediately preceding sentence to the Representative in lieu of delivery of such Escrow Shares to the Minority Stockholders prior to any distribution to the Minority Stockholder pursuant to this Agreement but not in lieu of or prior to any distribution required to be made to Parent hereunder. If and to the extent that there is not a sufficient number of Escrow Shares in the amount of Escrow Account to pay in full the Representative Losses exceeds amounts available Stockholder Fees, the Minority Stockholders shall pay to the Representative under (i) and (ii), from each Securityholder, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger (including, with respect to the Transferring Sellers, the value (pro rata based on the Parent Price Per Shareeach Stockholder's percentage ownership determined as provided in Section 8(e) of the shares of Parent Common Stock received pursuant to the Common Stock Purchase Agreement). As soon as practicable after the date on which the final obligation of the Representative under this Agreement and the Escrow Agreement have been discharged, the Representative shall remit hereof) any amounts remaining such Stockholder Fees in the Representative Escrow Account to the Paying Agent (or, to the Surviving Corporation or such Person as designated by Parent). The Paying Agent shall promptly distribute such amounts to the Securityholders based on their respective Indemnification Pro Rata Percentages; provided, that, any amount payable cash up to an Employee holder aggregate amount for all such Minority Stockholders of an In-the-Money-Option shall be distributed to the Surviving Corporation who will disburse such amount, net of applicable Tax withholdings, through the Company’s payroll$56,000.
Appears in 1 contract
Sources: Escrow Agreement (Symbion Inc/Tn)
Appointment of the Representative. (a) In order to administer efficiently the determination of, amongst other items, the Merger Closing Residual Cash Consideration and Final Residual Cash Consideration in accordance with the Final Adjustment Amount terms hereof and the defense and/or settlement of any claims for Losses for which claim or Liability in connection with this Agreement or the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereoftransactions contemplated hereby, the SecurityholdersStockholders and Optionholders, by their adoption and approval of this Agreement, through the acceptance of any Merger Consideration payable hereunder as well as, in certain cases, through separate instruments (including the Requisite Stockholder Approval and the Letters of Transmittal and Option Surrender FormsTransmittal), irrevocably appoint the Representative as their exclusive agent, attorney in fact and representative (with full power of substitution in the premises), and, by its execution hereof, the Representative hereby accepts such appointment.
(b) The Representative is hereby authorized (i) to take all action necessary in connection with the acceptance, rejection and determination of the Merger Closing Residual Cash Consideration and the Final Adjustment Amount and Residual Cash Consideration and/or the defense and/or settlement of any claims for Losses (including claim or Liability in connection with this Agreement or the power to compromise any indemnity claim on behalf of the Securityholders and to transact matters of litigation) for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereoftransactions contemplated hereby, (ii) to give and receive all notices required to be given under this Agreement and the other agreements contemplated hereby to which all of the Securityholders Stockholders and Optionholders are subject, subject and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative will deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including including, without limitation, the power:
(i) to pay any expenses of the Securityholders or the Representative from the Representative Expense Account;
(iiA) to execute and deliver all consents, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iiiB) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate appropriate, whether prior to, at or after the Closing;
(ivC) to receive funds, make payments of funds (including from the Representative Reserve Fund), and give receipts for funds;
(D) to receive funds for the payment of expenses of the Stockholders and Optionholders (including the Representative Reserve Fund), to deposit such funds in such accounts as the Representative deems appropriate and apply such funds in payment for such expenses;
(E) to do or refrain from doing any further act or deed on behalf of the Securityholders Stockholders and Optionholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Securityholders Stockholders and Optionholders could do if personally present; and
(vF) to receive service of process in connection with any claims under this Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Securityholders, except as expressly provided herein and in the Escrow Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement (other than the Escrow Agreement), schedule, exhibit or the Disclosure Schedules.
(c) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Shareholders Stockholders and Optionholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the voting power represented by the Company Shares issued and outstanding immediately prior to the Effective Time, will select another representative to fill such vacancy and such substituted representative will be deemed to be the Representative for all purposes of this Agreement.
(d) The Representative shall be entitled to: (i) rely upon the Percentage Schedule, (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 Securityholder or other party. All decisions and actions by the Representative, including the defense or settlement of any claims for Losses for which claim or Liability in connection with this Agreement or the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereoftransactions contemplated hereby, will be binding upon all of the SecurityholdersStockholders and Optionholders, and no Securityholder Stockholder or Optionholder will have the right to object, dissent, protest or otherwise contest the same.
(e) Parent Parent, the Paying Agent and the Escrow Agent will be able to rely conclusively on the instructions and decisions of the Representative and treat the Representative as the duty appointed representative of the Stockholders and Optionholders and any decision, act, consent or instruction of the Representative as being the decision, act, consent or instruction of each Stockholder or Optionholder, as applicable, including as to the determination of the Merger Consideration and the Final Adjustment Amount and the settlement or compromise of any claims for Losses for which claim or Liability in connection with this Agreement or the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof transactions contemplated hereby and any other actions required to be taken by the Representative hereunder. Parent and the Company may, and the Escrow Agent and the Paying Agent shall, disregard any notice or instruction received directly from any Stockholder or Optionholder, other than the Representative. Parent, Merger Sub, the Paying Agent and the Escrow Agent are hereby relieved from any Liability to any Person for any acts done by them in accordance with any such decision, act, consent or instruction of the Representative, and no party hereunder or Shareholder Stockholder or Optionholder will have any cause of action against Parent Parent, Merger Sub, the Paying Agent or Merger Sub the Escrow Agent for any action taken by Parent or Merger Sub such Person in reliance upon the instructions or decisions of the Representative.
(f) All actions, decisions and instructions of the Representative will be conclusive and binding upon all of the Stockholders and Optionholders, and no Stockholder or Optionholder will have any cause of action against the Representative for any action taken or not taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(g) The provisions of this Section 12.20 and the powers, immunities and rights to indemnification granted to the Representative and the Advisory Group hereunder: (i) 11.20 are independent and severable, (ii) are irrevocable and coupled with an interest and shall survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder, (iii) will be enforceable notwithstanding any rights or remedies that any Shareholder Stockholder or Optionholder may have in connection with the transactions contemplated by this Agreement and (iv) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Fund.Agreement; and
(gh) The provisions of this Section 12.20 11.20 will be binding upon the heirs, legal representatives, successors and assigns of each SecurityholdersStockholder and Optionholder, and any references in this Agreement to a Securityholder Stockholder or an Optionholder or the Securityholders Stockholders or Optionholders will mean and include the successors to the rights of the Securityholders Stockholders and Optionholders hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
(h) Certain Securityholders have entered into a letter agreement with the Representative to provide direction to the Representative in connection with the performance of its services under this Agreement and the Escrow Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative (together with its members, managers, directors, officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Representative Group”) shall be liable for any liability, loss, damage, penalty, fine, cost or expense incurred by the Representative while acting in good faith and in the exercise of its good faith judgment and arising out of or in connection with the acceptance or administration of its duties or the exercise of its rights hereunder (it being understood that any act done or omitted pursuant to the advice of counsel, public accountants or other independent experts experienced in the matter at issue shall be conclusive evidence of such good faith). Each Securityholder shall, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger, indemnify, defend and hold harmless the Representative Group and its successors and assigns from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs, fees, judgments, amounts paid in settlement and expenses (including attorneys’ fees and court and other skilled professionals’ costs and in connection with seeking recovery from insurers) (collectively, “Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Representative Group pursuant to the terms of this Agreement, in each case as such Representative Loss is incurred or suffered. The Representative shall be entitled to recover any Representative Losses reasonably incurred by the Representative in connection with actions taken by the Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and other skilled professionals and the incurring of legal fees and costs), without the requirement of any consent or approval by Parent or any other Person. All of the indemnities and immunities granted to the Representative Group under this Agreement shall survive the resignation or removal of Representative or any member of the Advisory Group and the Merger and/or any termination of this Agreement and the Escrow Agreement.
(i) The Securityholders acknowledge that the Representative 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 administration of its duties. The Representative Losses shall be satisfied (i) from the Representative Expense Account, (ii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i), to the extent of any amount of the Escrow Fund that has not been used to satisfy indemnification claims pursuant to Article VIII and that is otherwise to be released to the Securityholders under Sections 1.10(c)(i), 1.10(c)(ii), 1.11(c), or 1.11(d) and (iii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i) and (ii), from each Securityholder, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger (including, with respect to the Transferring Sellers, the value (based on the Parent Price Per Share) of the shares of Parent Common Stock received pursuant to the Common Stock Purchase Agreement). As soon as practicable after the date on which the final obligation of the Representative under this Agreement and the Escrow Agreement have been discharged, the Representative shall remit any amounts remaining in the Representative Escrow Account to the Paying Agent (or, to the Surviving Corporation or such Person as designated by Parent). The Paying Agent shall promptly distribute such amounts to the Securityholders based on their respective Indemnification Pro Rata Percentages; provided, that, any amount payable to an Employee holder of an In-the-Money-Option shall be distributed to the Surviving Corporation who will disburse such amount, net of applicable Tax withholdings, through the Company’s payroll.
Appears in 1 contract
Appointment of the Representative. (a) In order Each Seller irrevocably constitutes and appoints ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as the Representative, with full and unqualified power to administer efficiently delegate to one or more Persons the determination ofauthority granted to it hereunder, amongst other items, the Merger Consideration to act as such Person’s true and the Final Adjustment Amount lawful attorney-in-fact and the defense and/or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, the Securityholders, by their adoption and approval of this Agreement, as well as, in certain cases, through separate instruments (including the Letters of Transmittal and Option Surrender Forms), irrevocably appoint the Representative as their exclusive agent, attorney in fact and representative (with full power of substitution in the premises)substitution, and, by its execution hereof, and authorizes the Representative hereby accepts acting for such appointment.
(b) The Representative is hereby authorized (i) Person and in such Person’s name, place and stead, in any and all capacities to take all action necessary in connection with the acceptance, rejection do and determination of the Merger Consideration perform every act and the Final Adjustment Amount and the defense and/or settlement of any claims for Losses (including the power to compromise any indemnity claim on behalf of the Securityholders and to transact matters of litigation) for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, (ii) to give and receive all notices thing required or permitted to be given under this Agreement and the other agreements contemplated hereby to which all of the Securityholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative will deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to pay any expenses of the Securityholders or the Representative from the Representative Expense Account;
(ii) to execute and deliver all consents, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate after the Closing;
(iv) to do or refrain from doing any further act or deed on behalf of the Securityholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Securityholders could do if personally present; and
(v) to receive service of process in connection with any claims under this Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Securityholders, except as expressly provided herein and in the Escrow Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement (other than the Escrow Agreement), schedule, exhibit or the Disclosure Schedules.
(c) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Shareholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the voting power represented by the Company Shares issued and outstanding immediately prior to the Effective Time, will select another representative to fill such vacancy and such substituted representative will be deemed to be the Representative for all purposes of this Agreement.
(d) The Representative shall be entitled to: (i) rely upon the Percentage Schedule, (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 Securityholder or other party. All decisions and actions by the Representative, including the defense or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, will be binding upon all of the Securityholders, and no Securityholder will have the right to object, dissent, protest or otherwise contest the same.
(e) Parent will be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the Final Adjustment Amount and the settlement or compromise of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof and any other actions required to be taken by the Representative hereunder, and no party hereunder or Shareholder will have any cause of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the instructions or decisions of the Representative.
(f) The provisions of this Section 12.20 and the powers, immunities and rights to indemnification granted to the Representative and the Advisory Group hereunder: (i) are independent and severable, (ii) are irrevocable and coupled with an interest and shall survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder, (iii) will be enforceable notwithstanding any rights or remedies that any Shareholder may have done in connection with the transactions contemplated by this Agreement and (iv) shall survive the delivery of an assignment by any Securityholder of the whole other Transaction Agreements, as fully to all intents and purposes as such Person might or any fraction of hiscould do in person, her or its interest in the Escrow Fund.including:
(gi) The provisions to determine the time and place of this Closing, to determine whether the conditions to effect the Closing set forth in Section 12.20 will be binding upon the heirs, legal representatives, successors and assigns of each Securityholders5 have been satisfied (or to waive such conditions), and any references in to terminate (or not to exercise the right to terminate) this Agreement to a Securityholder or the Securityholders will mean and include the successors to the rights of the Securityholders hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.as provided in Section 8.19;
(hii) Certain Securityholders have entered into a letter agreement with the Representative to provide direction to the Representative in connection with the performance of its services under this Agreement and the Escrow Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative (together with its members, managers, directors, officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Representative Group”) shall be liable for any liability, loss, damage, penalty, fine, cost or expense incurred by the Representative while acting in good faith and in the exercise of its good faith judgment and arising out of or in connection with the acceptance or administration of its duties or the exercise of its rights hereunder (it being understood that any act done or omitted pursuant to the advice of counsel, public accountants or other independent experts experienced in the matter at issue shall be conclusive evidence of such good faith). Each Securityholder shall, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger, indemnify, defend and hold harmless the Representative Group and its successors and assigns from and against take any and all claims, demands, suits, actions, causes action on behalf of action, losses, damages, obligations, liabilities, costs, fees, judgments, amounts paid in settlement such Sellers from time to time as Representative may deem necessary or desirable to fulfill the interests and expenses (including attorneys’ fees and court and other skilled professionals’ costs and in connection with seeking recovery from insurers) (collectively, “Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Representative Group pursuant to the terms of this Agreement, in each case as such Representative Loss is incurred or suffered. The Representative shall be entitled to recover any Representative Losses reasonably incurred by the Representative in connection with actions taken by the Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and other skilled professionals and the incurring of legal fees and costs), without the requirement of any consent or approval by Parent or any other Person. All of the indemnities and immunities granted to the Representative Group under this Agreement shall survive the resignation or removal of Representative or any member of the Advisory Group and the Merger and/or any termination purposes of this Agreement and the Escrow other Transaction Agreements and to engage agents and representatives (including accountants and legal counsel) to assist in connection therewith, including the delivery of the Purchased Interest and membership interest powers to Purchaser as contemplated hereby;
(iii) to deliver all notices required to be delivered by such Sellers or any of them;
(iv) to receive all notices required to be delivered to such Sellers or any of them;
(v) to negotiate, execute and deliver any amendments to and terminations of this Agreement and the other Transaction Agreements and to prepare any modification to the Disclosure Schedule;
(vi) to give such orders and instructions as Representative in his sole discretion shall determine with respect to this Agreement and the other Transaction Agreements and the transactions contemplated hereby and thereby;
(vii) to retain a portion of the Purchaser Price for payment of expenses relating to the transactions or the obligations of the Company, Representative, or any such Seller arising under or in connection with this Agreement and maintain a reserve for a period of time in connection with the payment of such expenses or obligations, and to incur and pay such expenses and obligations out of such reserve as Representative deems appropriate in his sole discretion;
(viii) to take all actions necessary to handle and resolve claims by or against Purchaser for indemnification by such Sellers under this Agreement;
(ix) to take all actions necessary to handle and resolve any adjustment to the Purchase Price under this Agreement;
(x) to retain and to pay legal counsel and other professionals in connection with any and all matters referred to herein or relating hereto or any other Transaction Agreements (which counsel or other professionals may, but need not, be counsel or other professionals engaged by the Company);
(xi) to make, acknowledge, verify and file on behalf of any such Seller applications, consents to service of process and such other documents, undertakings or reports as may be required by Law as determined by Representative in his sole discretion after consultation with counsel; and
(xii) to make, exchange, acknowledge, deliver, amend and terminate all such other contracts, powers of attorney, orders, receipts, notices, requests, instructions, certificates, letters and other writings, and in general to do all things and to take all actions, that Representative in his sole discretion may consider necessary or proper in connection with or to carry out the aforesaid, as fully as could such Sellers if personally present and acting.
(ib) The Securityholders acknowledge Each of such Sellers hereby irrevocably grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that Representative may lawfully do or cause to be done by virtue hereof. Each of such Sellers further agrees not to take any action inconsistent with the terms of this Section 8.22 or with the actions (or decisions not to act) of Representative hereunder, and in any case shall not be required to expend take any action or risk its own funds or otherwise incur any financial liability in other position under this Agreement without the exercise or performance consent of any of its powers, rights, duties or privileges or administration of its dutiesRepresentative. The Representative Losses shall be satisfied (i) from the Representative Expense Account, (ii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i), to To the extent of any amount inconsistency between the actions (or decisions not to act) of Representative and of any such Seller hereunder, the Escrow Fund actions (or decisions not to act) of Representative shall control. EACH SUCH SELLER ACKNOWLEDGES THAT IT IS HIS OR ITS EXPRESS INTENTION TO HEREBY GRANT A DURABLE POWER OF ATTORNEY UNTO REPRESENTATIVE AND THAT THIS DURABLE POWER OF ATTORNEY IS NOT AFFECTED BY SUBSEQUENT INCAPACITY OF SUCH SELLER. Each of such Sellers further acknowledges and agrees that has not been used to satisfy indemnification claims upon execution of this Agreement, any delivery by Representative of any waiver, amendment, agreement, opinion, certificate or other documents executed by Representative pursuant to Article VIII this Section 8.22, such Seller shall be bound by such documents as fully as if such Seller had executed and that is otherwise to be released to the Securityholders under Sections 1.10(c)(i)delivered such documents, 1.10(c)(ii), 1.11(c), and any action (or 1.11(d) and (iii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i) and (ii), from each Securityholder, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount decision not to exceed the proceeds actually received act) taken or otherwise implemented by such Securityholder in the Merger (including, with respect to the Transferring Sellers, the value (based on the Parent Price Per Share) of the shares of Parent Common Stock received pursuant to the Common Stock Purchase Agreement). As soon as practicable after the date on which the final obligation of the Representative under this Agreement and the Escrow Agreement have been discharged, the Representative shall remit any amounts remaining in the Representative Escrow Account to the Paying Agent (or, to the Surviving Corporation or such Person as designated by Parent). The Paying Agent shall promptly distribute such amounts to the Securityholders based on their respective Indemnification Pro Rata Percentages; provided, that, any amount payable to an Employee holder of an In-the-Money-Option shall be distributed to the Surviving Corporation who will disburse such amount, net of applicable Tax withholdings, through the Company’s payrollbinding upon all Sellers.
Appears in 1 contract
Appointment of the Representative. (a) In order to administer efficiently the determination of, amongst other items, the Closing Merger Consideration, the Final Closing Merger Consideration and the Final Adjustment Amount Additional Merger Consideration, and the defense and/or settlement of any claims for Losses for claim or liability in connection with this Agreement or any other Transaction Document to which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereofRepresentative is a party, or the transactions contemplated hereby or thereby, the SecurityholdersEquityholders, by their adoption and approval of this Agreement, as well as, in certain cases, through separate instruments (including the Letters of Transmittal Transmittal, Support Agreements, Option Cancellation Agreements and Option the Warrant Surrender FormsAgreement), irrevocably constitute and appoint the Representative to act as their exclusive the agent, attorney in proxy, attorney-in-fact and representative (with full power of substitution in the premises)) for the Equityholders and their successors for all purposes under this Agreement and any other Transaction Document to which the Representative is a party, and, by its execution hereof, the Representative hereby accepts such appointment.
(b) The Representative is hereby authorized (ix) to take all action necessary in connection with the acceptance, rejection and determination of the Closing Merger Consideration, the Final Closing Merger Consideration and the Final Adjustment Amount Additional Merger Consideration, and the defense and/or settlement of any claims for Losses (including claim or liability in connection with this Agreement or any other Transaction Document to which it is a party, or the power to compromise any indemnity claim on behalf of the Securityholders and to transact matters of litigation) for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereoftransactions contemplated hereby or thereby, (iiy) to give and receive all notices required to be given under this Agreement and the or any other agreements contemplated hereby Transaction Document to which all of the Securityholders are subjectit is a party and to which, and (iiiz) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative will deem necessary or appropriate in connection with the transactions contemplated by this AgreementAgreement and the other Transaction Documents to which it is a party, including the power:
(i) to pay any expenses of the Securityholders or the Representative from the Representative Expense Account;
(ii) to execute and deliver all consents, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this AgreementAgreement and the other Transaction Documents to which it is a party;
(iiiii) to execute and deliver all amendments and waivers to this Agreement and the other Transaction Documents to which it is a party that the Representative deems necessary or appropriate appropriate, whether prior to, at or after the Closing;
(iii) to receive funds, make payments of funds (including from the Representative Reserve Fund, Adjustment Escrow Fund, Indemnity Escrow Fund and Special Indemnity Escrow Fund), and give receipts for funds;
(iv) to receive funds for the payment of expenses of the Equityholders (including the Representative Reserve Fund, Adjustment Escrow Fund, Indemnity Escrow Fund and Special Indemnity Escrow Fund), to deposit such funds in such accounts as the Representative deems appropriate and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Securityholders Equityholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Securityholders Equityholders could do if personally present; and
(vvi) to receive service of process in connection with any claims under this Agreement. Notwithstanding Agreement and the foregoing, the Representative shall have no obligation other Transaction Documents to act on behalf of the Securityholders, except as expressly provided herein and in the Escrow Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement (other than the Escrow Agreement), schedule, exhibit or the Disclosure Scheduleswhich it is a party.
(c) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Shareholders Equityholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the voting power represented by the Company Shares issued and outstanding immediately prior to the Effective Time, on an as-converted to common basis, will select another representative to fill such vacancy and such substituted representative will be deemed to be the Representative for all purposes of this Agreement.
(d) The Representative shall be entitled to: (i) rely upon the Percentage Schedule, (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 Securityholder or other party. All decisions and actions by the Representative, including the defense or settlement of any claims for Losses for which claim or liability in connection with this Agreement or the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereoftransactions contemplated hereby, will be binding upon all of the SecurityholdersEquityholders, and no Securityholder Equityholders will have the right to object, dissent, protest or otherwise contest the same.
(e) Parent Acquiror, the Escrow Agent and the Paying Agent will be able to rely conclusively on the instructions and decisions of the Representative and treat the Representative as the duly appointed representative of the Equityholders and any written decision, act, consent or instruction of the Representative as being the decision, act, consent or instruction of each Equityholder. Acquiror, Merger Sub and, following the Closing, the Surviving Corporation are hereby relieved from any Liability to any Person for any acts done by them in accordance with any such written decision, act, consent or instruction of the Representative. Each Equityholder hereby agrees that for any Action arising under any Transaction Document, such Equityholder may be served legal process as set forth in Section 12.03 for the Representative (or any alternative address designated to the determination parties in writing by the Representative), and that service in such manner shall be adequate and such shall not assert any defense of claim that service in such manner was not adequate or sufficient in any court in any jurisdiction.
(f) All actions, decisions and instructions of the Merger Consideration Representative will be conclusive and binding upon all of the Final Adjustment Amount and the settlement or compromise of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof and any other actions required to be taken by the Representative hereunderEquityholders, and no party hereunder or Shareholder Equityholders will have any cause of action against Parent or Merger Sub the Representative for any action taken or not taken, decision made or instruction given by Parent or Merger Sub in reliance upon the instructions or decisions of Representative under this Agreement, except for Fraud by the Representative.
(fg) The provisions of this Section 12.20 and the powers, immunities and rights to indemnification granted to the Representative and the Advisory Group hereunder: (i) 12.16 are independent and severable, (ii) are irrevocable and coupled with an interest and shall survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder, (iii) will be enforceable notwithstanding any rights or remedies that any Shareholder Equityholder may have in connection with the transactions contemplated by this Agreement and (iv) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow FundAgreement.
(gh) The provisions of this Section 12.20 12.16 will be binding upon the heirs, legal representatives, successors and assigns of each SecurityholdersEquityholder, and any references in this Agreement to a Securityholder an Equityholder or the Securityholders Equityholders will mean and include the successors to the rights of the Securityholders Equityholders hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
(h) Certain Securityholders have entered into a letter agreement with the Representative to provide direction to the Representative in connection with the performance of its services under this Agreement and the Escrow Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative (together with its members, managers, directors, officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Representative Group”) shall be liable for any liability, loss, damage, penalty, fine, cost or expense incurred by the Representative while acting in good faith and in the exercise of its good faith judgment and arising out of or in connection with the acceptance or administration of its duties or the exercise of its rights hereunder (it being understood that any act done or omitted pursuant to the advice of counsel, public accountants or other independent experts experienced in the matter at issue shall be conclusive evidence of such good faith). Each Securityholder shall, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger, indemnify, defend and hold harmless the Representative Group and its successors and assigns from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs, fees, judgments, amounts paid in settlement and expenses (including attorneys’ fees and court and other skilled professionals’ costs and in connection with seeking recovery from insurers) (collectively, “Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Representative Group pursuant to the terms of this Agreement, in each case as such Representative Loss is incurred or suffered. The Representative shall be entitled to recover any Representative Losses reasonably incurred by the Representative in connection with actions taken by the Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and other skilled professionals and the incurring of legal fees and costs), without the requirement of any consent or approval by Parent or any other Person. All of the indemnities and immunities granted to the Representative Group under this Agreement shall survive the resignation or removal of Representative or any member of the Advisory Group and the Merger and/or any termination of this Agreement and the Escrow Agreement.
(i) The Securityholders acknowledge that the Representative 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 administration of its duties. The Representative Losses shall be satisfied (i) from the Representative Expense Account, (ii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i), to the extent of any amount of the Escrow Fund that has not been used to satisfy indemnification claims pursuant to Article VIII and that is otherwise to be released to the Securityholders under Sections 1.10(c)(i), 1.10(c)(ii), 1.11(c), or 1.11(d) and (iii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i) and (ii), from each Securityholder, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger (including, with respect to the Transferring Sellers, the value (based on the Parent Price Per Share) of the shares of Parent Common Stock received pursuant to the Common Stock Purchase Agreement). As soon as practicable after the date on which the final obligation of the Representative under this Agreement and the Escrow Agreement have been discharged, the Representative shall remit any amounts remaining in the Representative Escrow Account to the Paying Agent (or, to the Surviving Corporation or such Person as designated by Parent). The Paying Agent shall promptly distribute such amounts to the Securityholders based on their respective Indemnification Pro Rata Percentages; provided, that, any amount payable to an Employee holder of an In-the-Money-Option shall be distributed to the Surviving Corporation who will disburse such amount, net of applicable Tax withholdings, through the Company’s payroll.
Appears in 1 contract
Sources: Merger Agreement (Phreesia, Inc.)
Appointment of the Representative. (a) In order to administer efficiently The Selling Members and the determination ofAccel Parties hereby appoint and, amongst other itemsin the event that the Merger is approved by the Requisite BRINC Vote, effective upon the Requisite BRINC Vote and without the further act of any Person, the Merger Consideration other Stockholders and Optionholders shall be deemed to have appointed, the Final Adjustment Amount Representative as each Equityholder’s true and lawful attorney-in-fact and agent to execute in the name and on behalf of such Equityholder the Escrow Agreement and to make all decisions with respect to the defense and/or settlement of any claims for Losses for which the Parent a Kenexa Indemnified Parties Party may claim to be entitled to indemnification pursuant indemnity under Article IX or this Article X and with respect to Section 8.02 hereofdisbursements from the Indemnity Escrow Account. The Representative shall not have any duties or responsibilities except those expressly set forth in this Agreement, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or shall otherwise exist against the SecurityholdersRepresentative.
(b) Each Equityholder that accepts payment of any consideration in respect of the Transactions as contemplated herein shall be deemed, by their adoption and such acceptance of payment, or by his, her or its execution of a Letter of Transmittal, or by the approval of this Agreement, as well asthe case may be, in certain cases, through separate instruments (including to have agreed that the Letters provisions of Transmittal and Option Surrender Forms), irrevocably appoint the Representative as their exclusive agent, attorney in fact and representative (with full power of substitution in the premises), and, by its execution hereof, the Representative hereby accepts Article IX or this Article X shall be binding upon such appointment.
(b) The Representative is hereby authorized (i) to take all action necessary in connection with the acceptance, rejection and determination of the Merger Consideration Equityholder and the Final Adjustment Amount successors and the defense and/or settlement assigns of any claims for Losses (including the power to compromise any indemnity claim on behalf of the Securityholders and to transact matters of litigation) for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, (ii) to give and receive all notices required to be given under this Agreement and the other agreements contemplated hereby to which all of the Securityholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative will deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to pay any expenses of the Securityholders or the Representative from the Representative Expense Account;
(ii) to execute and deliver all consents, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate after the Closing;
(iv) to do or refrain from doing any further act or deed on behalf of the Securityholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Securityholders could do if personally present; and
(v) to receive service of process in connection with any claims under this Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Securityholders, except as expressly provided herein and in the Escrow Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement (other than the Escrow Agreement), schedule, exhibit or the Disclosure SchedulesEquityholder.
(c) In addition, each Equityholder that accepts payment of any consideration in respect of the event Transactions as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have acknowledged and agreed that the Representative becomes unable neither he, she or it nor any of his, her or its respective Affiliates will have any claims or rights to perform its responsibilities hereunder contribution or resigns indemnity from such positionParent, Kenexa Technology, Acquisition Sub, BRLLC, BRINC, the Shareholders (or, if applicable, Surviving Corporation or any of their respective heirs, legal representatives, successors and assigns) who held a majority Subsidiaries or any of the voting power represented respective Affiliates of the foregoing Persons with respect to any amounts paid by the Company Shares issued and outstanding immediately prior any Equityholder pursuant to the Effective TimeArticle IX or this Article X or any liabilities that such Equityholder may have for actual fraud, will select another representative to fill such vacancy and such substituted representative will provided, that nothing contained in this Section 10.8(c) shall be deemed to be constitute a waiver or release by any Person of any rights to indemnification from BRLLC, BRINC or the Representative for all purposes Surviving Corporation pursuant to the DGCL, the Delaware Limited Liability Company Act, the Operating Agreement or the Certificate of this AgreementIncorporation or bylaws of BRINC or any applicable policy of director and officer liability insurance.
(d) The Representative shall be entitled to: (i) rely upon the Percentage Scheduleto rely, (ii) rely and shall be fully protected in relying, upon any signature believed statements furnished to it by it any Equityholder, Parent, Kenexa Technology or Acquisition Sub, or any other evidence deemed by the Representative to be genuinereliable. The Representative shall be fully justified in failing or refusing or take any action under this Agreement unless it shall have received such advice or concurrence of the Equityholders as it deems appropriate or unless it shall have been expressly indemnified to its satisfaction by the Equityholders severally against any and all liability and expense that it may incur by reason of taking or continuing to take any such action. The Representative shall in all cases be fully protected in acting, or refraining from acting, under this Agreement in accordance with a request of Equityholders who have a right to receive a majority of the Net Enterprise Value paid to the Equityholders, and (iii) reasonably assume that a signatory has proper authorization such request, and any such action taken or failure to sign on behalf of the applicable Securityholder or other party. All decisions and actions by the Representativeact pursuant thereto, including the defense or settlement of any claims for Losses for which the Parent Indemnified Parties may be entitled to indemnification pursuant to Section 8.02 hereof, will shall be binding upon all of the Securityholders, and no Securityholder will have the right to object, dissent, protest or otherwise contest the sameEquityholders.
(e) Parent will The Representative shall not be able liable for any error of judgment, or any action taken or omitted to rely conclusively on be taken hereunder except in the instructions and decisions case of the its intentional wrongdoing for personal benefit. The Representative as to the determination of the Merger Consideration and the Final Adjustment Amount and the settlement or compromise of any claims for Losses for which the Parent Indemnified Parties may shall be entitled to indemnification pursuant to Section 8.02 hereof consult with counsel of its choosing and shall be fully protected in any other actions required to be taken act taken, suffered, or permitted by it in good faith in accordance with the Representative hereunder, and no party hereunder or Shareholder will have any cause advice of action against Parent or Merger Sub for any action taken by Parent or Merger Sub in reliance upon the instructions or decisions of the Representativecounsel.
(f) The provisions Representative shall not be paid any fee for services to be rendered hereunder. The Representative shall be reimbursed from the Indemnity Escrow Account for up to $35,000 of this Section 12.20 all reasonable fees and the powers, immunities and rights to indemnification granted to expenses incurred by the Representative in performing its duties hereunder (including under Sections 2.14 and 2.17 and Articles IX and X) or under the Advisory Group hereunder: (i) are independent and severable, (ii) are irrevocable and coupled with an interest and shall survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder, (iii) will be enforceable notwithstanding any rights or remedies that any Shareholder may have in connection with the transactions contemplated by this Escrow Agreement and (iv) shall survive thereafter by the delivery Equityholders for all such reasonable fees and expenses in excess of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Fund$35,000.
(g) The provisions of this Section 12.20 will be binding upon Equityholders, jointly and severally, shall indemnify and hold the heirsRepresentative harmless against any and all losses, legal representativesclaims, successors and assigns of each Securityholdersdamages, liabilities, and any references in this Agreement to a Securityholder or the Securityholders will mean expenses, including reasonable costs of investigation, attorneys’ fees, and include the successors to the rights of the Securityholders hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
(h) Certain Securityholders have entered into a letter agreement with disbursements that may be imposed on the Representative to provide direction to or incurred by the Representative in connection with the performance of its services duties under this Agreement and the Escrow Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative (together with its members, managers, directors, officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Representative Group”) shall be liable for any liability, loss, damage, penalty, fine, cost or expense incurred by the Representative while acting in good faith and in the exercise of its good faith judgment and arising out of or in connection with the acceptance or administration of its duties or the exercise of its rights hereunder (it being understood that any act done or omitted pursuant to the advice of counsel, public accountants or other independent experts experienced in the matter at issue shall be conclusive evidence of such good faith). Each Securityholder shall, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger, indemnify, defend and hold harmless the Representative Group and its successors and assigns from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs, fees, judgments, amounts paid in settlement and expenses (including attorneys’ fees and court and other skilled professionals’ costs and in connection with seeking recovery from insurers) (collectively, “Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Representative Group pursuant to the terms of this Agreement, in each case as such Representative Loss is incurred or suffered. The Representative shall be entitled to recover including any Representative Losses reasonably incurred by the Representative in connection with actions taken by the Representative pursuant to the terms of litigation arising from this Agreement or the Escrow Agreement or involving their subject matter, unless such loss, liability, claim or expense shall have been determined by a court of competent jurisdiction to be a result of the Representative’s intentional wrongdoing or for personal benefit. Except in the case of fraud by an Equityholder, such Equityholder’s liability under Article IX or this Article X shall not exceed the portion of the Net Enterprise Value received by such Equityholder pursuant to this Agreement. Anything in this Agreement to the contrary notwithstanding, in no event shall the Representative be liable to the Equityholders for special, indirect or consequential loss or damage of any kind whatsoever (including the hiring of legal counsel and other skilled professionals and the incurring of legal fees and costslost profits), without even if the requirement of any consent or approval by Parent or any other Person. All Representative has been advised of the indemnities likelihood of such damages and immunities granted regardless of the form of action.
(h) The Representative may resign at any time. The Representative may be removed at any time by a writing signed by Equityholders who have the right to receive a majority of the Net Enterprise Value paid or payable to the Representative Group under this Agreement shall survive Equityholders. If the resignation or removal of Representative or any member successor shall resign, be so removed, or become unable to act as the Representative, a replacement shall promptly be appointed by a writing signed by Equityholders who have the right to receive a majority of the Advisory Group and Net Enterprise Value paid or payable to the Merger and/or any termination of this Agreement Equityholders. The Representative shall promptly notify Kenexa Technology and the Escrow AgreementAgent of any such resignation, removal or appointment.
(i) The Securityholders acknowledge Parent, Kenexa Technology, Acquisition Sub, the Surviving Corporation and the Escrow Agent shall be entitled to rely on the actions taken by the Representative, and that each action taken by the Representative shall not be required binding on each of the Equityholders as if such action had been performed by each such Equityholder. The Equityholders, jointly and severally, shall indemnify and hold harmless the Kenexa Indemnified Parties and the Escrow Agent from and against any losses that any Kenexa Indemnified Party or the Escrow Agent may suffer, sustain or become subject to expend or risk its own funds or otherwise incur any financial liability in as the exercise or performance result of any claim by any of its powers, rights, duties or privileges or administration of its duties. The Representative Losses shall be satisfied (i) from the Equityholders that an action taken by the Representative Expense Account, (ii) to the extent the amount purportedly on behalf of the Representative Losses exceeds amounts available to the Representative under (i), to the extent of any amount of the Escrow Fund that has not been used to satisfy indemnification claims pursuant to Article VIII and that is otherwise to be released to the Securityholders under Sections 1.10(c)(i), 1.10(c)(ii), 1.11(c), or 1.11(d) and (iii) to the extent the amount of the Representative Losses exceeds amounts available to the Representative under (i) and (ii), from each Securityholder, severally and not jointly and in proportion to its Indemnification Pro Rata Percentage in an amount not to exceed the proceeds actually received by such Securityholder in the Merger (including, with respect to the Transferring Sellers, the value (based on the Parent Price Per Share) of the shares of Parent Common Stock received Equityholders pursuant to the Common Stock Purchase Agreement). As soon as practicable after the date authorization in Article IX or this Article X is not binding on which the final obligation or enforceable against any of the Representative under this Agreement and the Escrow Agreement have been discharged, the Representative shall remit any amounts remaining in the Representative Escrow Account to the Paying Agent (or, to the Surviving Corporation or such Person as designated by Parent). The Paying Agent shall promptly distribute such amounts to the Securityholders based on their respective Indemnification Pro Rata Percentages; provided, that, any amount payable to an Employee holder of an In-the-Money-Option shall be distributed to the Surviving Corporation who will disburse such amount, net of applicable Tax withholdings, through the Company’s payrollEquityholders.
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