Securityholder Representative. (a) Pursuant to the adoption of this Agreement by Company Common Stockholders representing greater than 50% of the outstanding shares of Company Common Stock, each Equity Holder will be deemed to have irrevocably appointed, authorized and empowered the Securityholder Representative to act as a representative for the benefit of each Equity Holder as the exclusive agent and attorney-in-fact with the power and authority to act on behalf of each Equity Holder in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority to: (i) execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable; (ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative; (iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith; (v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and (vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)). (b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders. (c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements. (d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them. (e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein. (f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacity.
Appears in 2 contracts
Sources: Merger Agreement (DJO Finance LLC), Merger Agreement (Colfax CORP)
Securityholder Representative. (a) Pursuant to By virtue of the adoption approval of the Merger and this Agreement by Company Common Stockholders representing greater than 50% the requisite vote of the outstanding shares of Company Common StockStockholders, each Equity Holder will of the Stockholders shall be deemed to have irrevocably appointed, authorized and empowered the Securityholder Representative agreed to act appoint ▇▇▇▇▇ ▇▇▇ as a representative for the benefit of each Equity Holder as the exclusive its agent and attorney-in-fact with the power and authority to act on behalf of each Equity Holder in connection with the Mergerfact, which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority to:
(i) execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoingHoldback Participants, following the Effective Time, Optionholders and Bonus Recipients to take all actions under this Agreement that are to be taken by the Securityholder Representative may (A) assert Representative, including to amend this Agreement, to waive any claim or institute provision of this Agreement, to negotiate payments due pursuant to this Article VII, to give and receive notices and communications, to authorize payment to any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or Indemnified Party from the Holdback Fund in satisfaction of claims by any Governmental Entity against the Securityholder Representative or any of the Equity HoldersIndemnified Party, (C) receive process on behalf of any or all Equity Holders in any to object to such Action payments, to agree to, negotiate, enter into settlements and compromise or settle on such terms as it shall determine to be appropriatecompromises of, and give receiptscomply with orders of courts with respect to such claims, releases to assert, negotiate, enter into settlements and discharges compromises of, and comply with orders of courts with respect to, any such Actionother claim by any Indemnified Party against any Holdback Participant, (D) file any proofs of debt, claims and petitions as it may deem advisable Optionholder or necessary and (E) file and prosecute appeals from any decision, judgment Bonus Recipient or award rendered in by any such Action (it being understood that the Securityholder Representative shall not have Holdback Participant, Optionholder or Bonus Recipient against any obligation to take Indemnified Party or any dispute between any Indemnified Party and any such actionsHoldback Participant, and shall not have any liability for any failure to take any such actions);
(iii) refrain from enforcing any right of the Equity HoldersOptionholder or Bonus Recipient, arising out of or under or in any manner each case relating to this Agreement or the other documents transactions contemplated hereby; provided, howeverand to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. A vacancy in the position of Securityholder Representative may be filled by the holders of a two-thirds majority in interest of the Holdback Fund. In the event a vacancy in the position of Securityholder Representative exists for fifteen (15) or more days, that no such failure Parent shall have the right to act on the part petition a court of competent jurisdiction to appoint a replacement Securityholder Representative. No bond shall be required of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by and the Securityholder Representative shall not receive any compensation for its services. Notices or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of from the Securityholder Representative in connection with matters related shall constitute notice to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when Holdback Participants, Optionholders and if expressly permitted in accordance with Section 3.6(e) Bonus Recipients. This appointment of agency and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all power of which actions or omissions shall be legally binding upon the Equity Holders.
(c) The grant of authority provided for herein (i) attorney is coupled with an interest and shall be irrevocable and survive shall not be terminated by any Stockholder or by operation of Law, whether by the death or incapacity of any Stockholder that is an individual, termination of any trust or estate, the dissolution, liquidation or bankruptcy or any corporation, partnership or other entity or the occurrence of any other event, and any action taken by the Representative shall be as valid as if such death, incompetencyincapacity, termination, dissolution, liquidation, bankruptcy or liquidation other event had not occurred, regardless of whether or not the Representative shall have received any Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreementsnotice thereof.
(db) All actions taken Until notified in writing by the Securityholder Representative that it has resigned or is otherwise unavailable to serve as Securityholder Representative, Parent and Parent may rely conclusively and act upon the directions, instructions and notices of the Securityholder Representative named above and, thereafter, upon the directions, instructions and notices of any successor named in a writing executed by a two- thirds majority-in-interest of the Holdback Fund filed with Parent.
(c) The Company, the Holdback Participants, Optionholders and Bonus Recipients each hereby authorize the Securityholder Representative to:
(i) Receive all notices or documents given or to be given to the Holdback Participants, Optionholders and Bonus Recipients pursuant hereto or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments transactions contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by as the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders may in its sole discretion deem appropriate; and
(iii) Take such action as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist may in its sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or otherwise be unable to fulfill its responsibilities as representative warranties of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote Parent or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein Sub contained in this Agreement or in any document delivered by Parent or Sub pursuant hereto; (B) taking such other agreement or instrument contemplated hereby to the Securityholder Representative in which action as the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of take under this Agreement; (C) receiving all documents or certificates and making all determinations, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as Securityholder Representative, required under this Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement, including the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article VII and any waiver of any obligation of Parent or the Surviving Corporation.
(d) The Securityholder Representative shall not be liable for any act done or omitted hereunder as Securityholder Representative while acting in good faith and in the exercise of reasonable judgment. The Holdback Participants, Optionholders and Bonus Recipients shall indemnify the Securityholder Representative and that hold the Securityholder Representative shall be under no obligation to take harmless against any action in its capacity as the Securityholder Representativeloss, unless the Securityholder Representative has been provided with funds, security liability or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be expense incurred by the Securityholder Representative in responding to such direction without gross negligence or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance connection with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as acceptance or administration of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Securityholder Representative. A decision, act, consent or instruction of the Equity Holders Securityholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Holdback Participants, Optionholders and that Bonus Recipients and shall be final, binding and conclusive upon the Holdback Participants, Optionholders and Bonus Recipients; and Parent may rely upon any such decision, act, consent or instruction of the Securityholder Representative shall have no personal responsibility as being the decision, act, consent or instruction of the Holdback Participants, Optionholders and Bonus Recipients. The Parent is hereby relieved from any liability to any person for any expensesdecision, costs act, consent or other liabilities incurred by it in such capacityinstruction of the Securityholder Representative.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (FOTV Media Networks Inc.)
Securityholder Representative. (a) Pursuant For purposes of this Agreement, the Securityholders hereby designate ▇▇▇▇▇ ▇▇▇▇▇▇ to serve as the adoption sole and exclusive representative of the Securityholders (the “Securityholder Representative”) with respect to those provisions of this Agreement that contemplate action by Company Common Stockholders representing greater than 50% the Securityholder Representative and with respect to the Escrow Agreement; provided, however, that if ▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Securityholder Representative or resigns as Securityholder Representative, then successive Securityholder Representatives shall be chosen by Securityholders holding a majority of Units outstanding immediately prior to the Closing (including Units issuable upon exercise of Options outstanding as of immediately prior to the Closing). Each successor Securityholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the outstanding shares provisions of Company Common Stockthis Agreement applicable to the Securityholder Representative. Each successor Securityholder Representative shall have all of the power, each Equity Holder will authority, rights and privileges conferred by this Agreement upon the original Securityholder Representative, and the term “Securityholder Representative” as used herein shall be deemed to have irrevocably appointed, authorized and empowered the include any successor Securityholder Representative.
(b) The Securityholder Representative to act is hereby constituted and appointed as a representative for the benefit of each Equity Holder as the exclusive agent and attorney-in-fact with the power for and authority to act on behalf of the other Securityholders with respect to the performance of his or her duties as the Securityholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Securityholder, by operation of Law, whether by such Securityholder’s death, disability, protective supervision or any other event. The Securityholder Representative shall promptly deliver to each Equity Holder in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to Securityholder any notice received by the Securityholder Representative under concerning this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without . Without limiting the generality of the foregoing, the Securityholder Representative shall have the has full power and authority authority, on behalf of each Securityholder and such Securityholder’s successors and assigns, to:
: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Securityholders in connection herewith, including the Escrow Agreement, (ii) execute and deliver on behalf and receive deliveries of the Equity Holders such waivers all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and consents other documents required or permitted to be given in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction AgreementsEscrow Agreement, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(viii) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement or the Escrow Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the other Transaction Agreementsdefense of claims, including service and demand arbitration and comply with orders of process courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in connection with any arbitration; and
the judgment of the Securityholder Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) authorize delivery to Buyer of (A) the Adjustment Escrow Amount or any portion thereof if the Net Adjustment Amount as finally determined in accordance with Section 2.3 is negative and (B) the Indemnity Escrow Amount or any portion thereof in satisfaction of claims brought by Buyer for Losses, (vii) object to such deliveries, (viii) distribute the Adjustment Escrow Amount and the Indemnity Escrow Amount and any earnings and proceeds thereon, (ix) agree to, negotiate, enter into settlements and compromises regarding the Earnout Statements and Earnout payments with respect to any Earnout period, and (x) take all actions necessary or appropriate in the judgment of the Securityholder Representative on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or Securityholders in connection with this Agreement and the Escrow Agreement.
(c) Service by the Securityholder Representative shall be without compensation except for reimbursement out of the Representative Expense Fund and the reimbursement by the Securityholders of out-of-pocket expenses and indemnification, in each case as specifically provided herein.
(d) The Securityholder Representative shall have no duties or the other Transaction Agreements responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Securityholder shall otherwise exist against the Equity Holders, including Securityholder Representative. The Securityholder Representative shall not be liable to satisfy costs, expenses or liabilities any Securityholder relating to the performance of the Securityholder Representative in connection with matters related to Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be not taken by the Securityholder Representative pursuant constituted Fraud or were taken or not taken in bad faith. The Securityholder Representative shall be indemnified and held harmless by the Securityholders against all liabilities, claims, Losses, fees, fines costs amounts paid in settlement, judgments or expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), that the Securityholder Representative may suffer or incur in connection with any action or omission of the Securityholder Representative (collectively, “Representative Expenses”) ; provided, however, that the Securityholder 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 Securityholder Representative constituted Fraud or were taken or not taken in bad faith. The Securityholder Representative shall be protected in acting upon any notice, statement or certificate believed by the Securityholder Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter. Any such Representative Expenses may be recovered, first, from the Representative Expense Fund, second, from funds to be released from the Indemnity Escrow Amount and otherwise distributable to the Securityholders at the time of distribution, and third, directly from the Securityholders.
(e) Buyer shall be entitled to conclusively rely in good faith upon any actions taken by the Securityholder Representative as the duly authorized action of the Securityholder Representative on behalf of each Securityholder with respect to any matters set forth in this Agreement or the Escrow Agreement.
(f) The Representative Expense Amount will be deposited by Buyer in the Representative Expense Fund in accordance with Section 1.6(c). The Representative Expense Fund shall be held by the Securityholder Representative as agent and for the benefit of the Securityholders in a segregated client account and shall be used for the purpose of paying directly, or reimbursing the Securityholder Representative for, any Representative Expenses incurred in connection with this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) Documents. 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed may contribute funds to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for Expense Fund from any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby consideration otherwise distributable to the Securityholder Representative in which the Securityholders. The Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittalnot providing any investment supervision, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements recommendations or advice and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no responsibility or liability to for any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination loss of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part principal of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of Representative Expense Fund other than as a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements result of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders Securityholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Fund, and has no tax reporting or income distribution obligations. The Securityholders will indemnify not receive any interest on the Representative Expense Fund and assign to the Securityholder Representative any such interest. As soon as reasonably determined by the Securityholder Representative that the Representative Expense Fund is no longer required to be withheld, and in accordance with any event not later than the immediately preceding sentence later of (i) the date on a pro rata basis which all funds are released from the Indemnity Escrow Amount fund and (ii) the final determination of any amounts payable in respect of the Earnout, the Securityholder Representative shall distribute the then-remaining amount of the Representative Expense Fund, if any, to the Securityholders based on their respective equity interest Additional Pro Rata Share; provided that amounts payable in respect of any Optionholder may be delivered to the Company for payment through a designated payroll account, subject to all applicable withholdings therefrom as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms hereinby Law.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacity.
Appears in 2 contracts
Sources: Unit Purchase Agreement (LendingTree, Inc.), Unit Purchase Agreement (LendingTree, Inc.)
Securityholder Representative. (a) Pursuant to the adoption of By approving this Agreement and the transactions contemplated hereby or by Company Common Stockholders representing greater than 50% executing and delivering a Letter of the outstanding shares of Company Common StockTransmittal, each Equity Holder will be deemed to Company Securityholder shall have irrevocably appointed, authorized and empowered the appointed Securityholder Representative to act as a such Person’s representative for the benefit of each Equity Holder as the exclusive agent and attorney-in-fact with the power and authority to act on behalf of such Person for all purposes in connection with this Agreement, the Additional Agreements and the agreements ancillary hereto and thereto. The Securityholder Representative shall act as the representative of the Company Securityholders in respect of all matters arising under this Agreement, the Additional Agreements and the agreements ancillary hereto and thereto, and shall be authorized to act, or refrain from acting, with respect to any actions to be taken by or on behalf of the Company Securityholders or the Securityholder Representative, including to enforce any rights granted to the Company Securityholders hereunder and thereunder, in each Equity Holder case as the Securityholder Representative believes is necessary or appropriate under this Agreement, the Additional Agreements and/or the agreements ancillary hereto and thereto, for and on behalf of the Company Securityholders. The Company Securityholders shall be bound by all such actions taken by the Securityholder Representative and the Company Securityholders shall not be permitted to take any such actions.
(b) The Securityholder Representative is serving as the Securityholder Representative solely for purposes of administrative convenience, and is not personally liable for any of the obligations of the Company, any of its Subsidiaries or the Company Securityholders hereunder, and Parent (on behalf of itself and its Affiliates) agrees that it will not look to the Securityholder Representative or the underlying assets of the Securityholder Representative for the satisfaction of any obligations of the Company, any of its Subsidiaries or the Company Securityholders. The Securityholder Representative shall not be liable for any error of judgment, or any action taken, suffered or omitted to be taken, in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to performance by the Securityholder Representative of the Securityholder Representative’s duties or the exercise by the Securityholder Representative of the Securityholder Representative’s rights and remedies under this Agreement; provided, howeverany Additional Agreement or any agreement ancillary hereto or thereto, that except in the case of its intentional fraud or willful misconduct. No bond shall be required of the Securityholder Representative. The Securityholder Representative may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Securityholder Representative shall not have no obligation any duty to ascertain or to inquire as to the Equity Holders to actperformance or observance of any of the terms, except as expressly provided herein, and without covenants or conditions of this Agreement or any Additional Agreement or any agreement ancillary hereto or thereto. Without limiting the generality of the foregoing, the Securityholder Representative shall have the full power and authority to:
(i) execute to interpret all the terms and deliver provisions of this Agreement and the Additional Agreements or any agreement ancillary hereto or thereto, and to consent to any amendment hereof or thereof on behalf of the Equity Holders such waivers Company Securityholders and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;their respective successors.
(iic) enforce Each Company Securityholder, jointly and protect the rights severally, agrees to indemnify and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of hold harmless the Securityholder Representative arising out of or under or in any manner relating to this Agreement against all fees and the other Transaction Agreements expenses (including legal fees and the other agreements contemplated hereby and thereby or the Merger expenses) and other transactions provided for herein amounts payable or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated incurred by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to the performance of any of its duties under this Agreement or the Additional Agreements, including any such fees, expenses, or other Transaction Agreements amounts that may be incurred by the Securityholder Representative in connection with any Action to which the Securityholder Representative is made a party by reason of the fact it is or was acting as the Securityholder Representative pursuant to the terms of this Agreement or the Additional Agreements. Notwithstanding the foregoing in this clause (providedc), that, in no such costs, expenses or liabilities shall event will the indemnity contemplated in this clause (c) be paid from by the Company Securityholders to the Securityholder Representative in the form of Earnout Shares released pursuant to the Earnout Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f))Agreement.
(bd) Parent may shall be entitled to rely upon on all statements, representations, decisions of, and actions taken or omitted to be taken by by, the Securityholder Representative pursuant as being the statements, representations, decisions of, and actions of Company Securityholders with respect to the matters relating to this Agreement and the other Transaction Agreements, all of which actions or omissions any Additional Agreement or any agreement ancillary hereto or thereto. Parent shall be legally binding upon entitled to deal solely with the Equity HoldersSecurityholder Representative (and shall not be required to deal with any Company Securityholder, in his, her or its capacity as such) with respect to the matters relating to this Agreement or any Additional Agreement or any agreement ancillary hereto or thereto.
(ce) The grant Securityholder Representative may resign at any time by giving twenty (20) days’ notice to Parent and the Company Securityholders; provided, however, in the event of authority provided for herein the resignation or removal of the Securityholder Representative, a new Securityholder Representative (iwho shall be reasonably acceptable to Parent) shall be appointed by the vote or written consent of a majority of the shares of Company Common Stock then held by the Company Securityholders as of immediately prior to the Effective Time; provided, further, that if any such vacancy is not so filled within thirty (30) days following the occurrence of such vacancy, the Parent Representative shall be entitled to appoint a successor Securityholder Representative, and the provisions of this Section 11.18 shall apply in all respects to such successor Securityholder Representative
(f) The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy by Company Securityholders in any manner or liquidation of for any Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of themreason. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect This authority granted to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resignnot be affected by the death, dissolveillness, cease dissolution, disability, incapacity or other inability to exist or otherwise be unable act of any principal pursuant to fulfill its responsibilities any applicable Law. T▇▇▇▇▇ ▇. ▇▇▇▇▇ hereby accepts his appointment as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successorinitial Securityholder Representative. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any timedecision, all references herein act, consent or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action instruction taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e11.18 on behalf of Company Securityholders (each, an “Securityholder Representative Authorized”) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge final, binding and conclusive on Company Securityholders as fully as if such Persons had taken such Securityholder Representative Authorized Action. Each Company Securityholder agrees that the Securityholder Representative’s obligations under this Section 10.15 are solely , as a representative of the Equity Holders and that the Securityholder Representative Representative, shall have no personal responsibility or liability to a Company Securityholder for any expenses, costs or other liabilities incurred by it in such capacitySecurity Representative Authorized Action.
Appears in 2 contracts
Sources: Merger Agreement (Revelstone Capital Acquisition Corp.), Merger Agreement (Revelstone Capital Acquisition Corp.)
Securityholder Representative. (a) Pursuant to Each Securityholder hereby appoints ACAS as the adoption of this Agreement by Company Common Stockholders representing greater than 50% of the outstanding shares of Company Common Stock, each Equity Holder will be deemed to have irrevocably appointed, authorized and empowered the “Securityholder Representative Representative” to act as a representative for the benefit agent of each Equity Holder as the exclusive agent and attorney-in-fact Securityholders with the full power and authority to act on behalf of each Equity Holder in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority to:
(i) to resolve all questions, disputes, conflicts and controversies concerning Losses as provided in this Article 11, (ii) to execute and deliver enter into, on behalf of the Equity Holders Securityholders, and to take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Reserve Account (including any increase thereof pursuant to Section 2.04(b)(i)) in connection with Losses as provided herein, (iii) to negotiate and/or settle all claims under this Agreement, (iv) to receive from the Buyer monies payable to the Securityholders in accordance with the provisions of this Agreement, (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers and consents or amendments thereto) on the Securityholders’ behalf in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary deems proper, (vi) to pay, release and/or distribute any or desirable;
(ii) enforce and protect the rights and interests all of the Equity Holders following Reserve Account or otherwise to pay Losses hereunder, each in its sole discretion, (vii) to adjust the Effective Time Securityholder Allocation Percentage of the Reserve Account otherwise payable to any particular Securityholder as a result of the payment of Losses resulting from breaches of such Securityholder’s representations, warranties, covenants or agreements hereunder) and (viii) to enforce and protect perform all of the rights and interests functions of the Securityholder Representative arising out under this Agreement. The Buyer is entitled to rely on the acts and agreements of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are as the acts and agreements of the Securityholders. The Securityholder Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Securityholder Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriateAgreement, and give receipts, releases all such fees and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that expenses incurred by the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest borne pro rata by the Securityholders based upon their respective initial Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f))Allocation Percentages.
(b) Parent may rely upon all actions taken or omitted The Securityholders hereby agree severally to be taken by indemnify the Securityholder Representative (in its capacity as such), on a pro rata basis based upon their respective Securityholder Allocation Percentages, against, and to hold the Securityholder Representative (in its capacity as such) harmless from (and the Securityholder Representative shall have the right to deduct from the Reserve Account or, after the exhaustion thereof, to seek payment directly from the Securityholders for the amount of), any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of whatever kind which may at any time be imposed upon, incurred by or asserted against the Securityholder Representative in such capacity in any way relating to or arising out of its action or failure to take action pursuant to this Agreement and or in connection herewith in such capacity; provided, that none of the other Transaction Agreements, all of which actions or omissions Securityholders shall be legally binding liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Securityholder Representative. The Securityholder Representative may from time to time submit invoices to the Securityholders covering such expenses and/or liabilities and, upon the Equity Holdersrequest of any Securityholder, shall provide such Securityholder with an accounting of all expenses paid. In addition to any other rights or remedies (including Section 11.02(d)), the Securityholder Representative may, upon prior or contemporaneous written notice, offset any amounts determined by it to be owed to the Securityholder Representative against the Reserve Account and against any amounts to be paid to the Securityholders hereunder. The agreements in this Section 11.04 shall survive termination of this Agreement.
(c) The grant Buyer shall be fully protected in dealing with the Securityholder Representative under this Agreement and may rely upon the authority of authority provided for herein (i) the Securityholder Representative to act on behalf of the Securityholders. Any payment by the Buyer to the Securityholder Representative to the extent authorized under this Agreement shall be considered a payment by the Buyer to the Securityholders. The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable and survive by any Securityholder in any manner or for any reason. This power of attorney shall not be affected by the death, incompetencyillness, bankruptcy dissolution, disability, incapacity or liquidation other inability to act of the principal pursuant to any Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreementsapplicable Law.
(d) All actions taken by the The Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns may resign from its capacity as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby time by written notice delivered to the Buyer and the Securityholders. If there is a vacancy at any time in the position of Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders for any reason, such vacancy shall be deemed filled by a Securityholders vote in the form of a writing executed by the Securityholders entitled to refer to the Equity Holders holding a majority of the outstanding shares number of Company Common Stockvotes referred to in the next sentence. Each Equity Holder upon In such event, each Securityholder shall have a number of votes equal to such Securityholder’s Securityholder Allocation Percentage multiplied by 100 and the execution authorization of a Letter majority of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms such number of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, votes shall be fully binding on themall of the Securityholders and shall constitute the authorization of the Securityholders.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the The Securityholder Representative shall have no liability not be liable to any Equity Holder with respect to actions taken the Buyer or omitted to be taken the Securityholders in its capacity as the Securityholder Representative and that for any liability of a Securityholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement except in the case of gross negligence or willful misconduct by it. The Securityholder Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall be under incur no obligation to take any action liability in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security to the Buyer or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, Securityholders and shall be entitled fully protected with respect to indemnification from the Equity Holders against any lossaction taken, liability omitted or expenses arising out of actions taken or omitted to be taken suffered by it in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative good faith in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as opinion of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms hereinsuch counsel.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacity.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Nordson Corp), Stock Purchase Agreement (Nordson Corp)
Securityholder Representative. (a) Pursuant to the adoption of By executing this Agreement (or, with respect to holders of options or warrants, by Company Common Stockholders representing greater than 50% of acknowledging their obligations as Securityholders under this Agreement), the outstanding shares of Company Common StockSecurityholders irrevocably appoint Shareholder Representative Services LLC, each Equity Holder will be deemed to have irrevocably appointed, authorized and empowered the Securityholder Representative to act as a representative for the benefit of each Equity Holder solely in its capacity as the exclusive representative, agent and attorney-in-fact with the power and authority to act on behalf of each Equity Holder in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoingSecurityholders, the Securityholder Representative shall have the power and authority to:
(i) execute and deliver on behalf as of the Equity Holders such waivers and consents Closing for all purposes in connection with this Agreement and the other Transaction Agreements all agreements ancillary hereto and the consummation to execute and deliver this Agreement on their behalf and exercise all or any of the Merger powers, authority and other discretion so conferred under this Agreement, including Section 10 (the “Securityholder Representative”), and Shareholder Representative Services LLC hereby accepts the appointment as the Securityholder Representative for purposes of Section 10.
(b) The Securityholder Representative shall have and may exercise all of the powers conferred upon it pursuant to this Agreement and, the Paying Agent Agreement, which shall include:
(i) The power to execute any agreement or instrument in connection with the transactions contemplated hereby for and therebyon behalf of the Securityholders, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirableAgreement;
(ii) enforce The power to give or receive any notice or instruction permitted or required under this Agreement, the Paying Agent Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, to be given or received by any Securityholder, and protect the rights and interests each of the Equity Holders following the Effective Time and to enforce and protect the rights and interests them (other than notice for service of the Securityholder Representative arising out of or under or in any manner process relating to this Agreement and the any Legal Proceeding before a court or other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or thereintribunal of competent jurisdiction, which notice must be given to each Securityholder individually, as applicable), and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements action for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality Securityholders, and each of the foregoingthem, following the Effective Timeunder this Agreement, the Securityholder Representative may (A) assert any claim or institute any ActionPaying Agent Agreement, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Personsuch agreement, document or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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)instrument;
(iii) The power (subject to the provisions of this Section 10.5(b)(iii)) to contest, negotiate, defend, compromise or settle (or refrain from enforcing doing so) in accordance with and subject to terms of Section 10 any right indemnification claims or Legal Proceedings for which a Securityholder may be entitled to indemnification through counsel selected by the Securityholder Representative and solely at the cost, risk and expense of the Equity HoldersSecurityholders, arising out authorize payment to any Securityholder of any of the Holdback Amounts, or any portion thereof, in satisfaction of any indemnification claims, agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such indemnification claims, resolve any indemnification claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated hereby by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Securityholder or necessary in the judgment of the Securityholder Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement and the Paying Agent Agreement;
(iv) The power to consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Securityholders;
(v) The power to review, negotiate and agree to and authorize, in accordance with and subject to terms of Section 10, any payments from the Holdback Amounts in satisfaction of any payment obligation, in each case, on behalf of the Securityholders, as contemplated thereunder;
(vi) The power to waive any terms and conditions of this Agreement and the Paying Agent Agreement providing rights or benefits to the Securityholders (other than the payment of the Closing Payment in accordance with the terms hereof and in the manner provided herein);
(vii) The power to take any actions contemplated hereunder or under the Paying Agent Agreement and otherwise in regard to such other matters as are reasonably necessary for the consummation of the transactions contemplated hereby or as the Securityholder Representative reasonably believes are in any manner relating the best interests of the Securityholders;
(viii) The power to direct the Paying Agent to disburse amounts paid to the Paying Agent in accordance with this Agreement, and to direct such portions of the Holdback Amounts to be disbursed to the Securityholders in accordance with the provisions hereof in accordance with the Allocation Schedule and in accordance with the terms and conditions of this Agreement; and
(ix) The power to amend this Agreement, the Paying Agent Agreement or any of the other documents contemplated herebyinstruments to be delivered to the Purchaser pursuant hereof and thereof; provided, however, that no notwithstanding the foregoing or anything to the contrary set forth herein, the powers conferred above shall not authorize or empower the Securityholder Representative to do or cause to be done any of the foregoing (i) in a manner that improperly discriminates between or among the Securityholders; or (ii) as to any matter insofar as such failure matter relates solely and exclusively to act a single Securityholder, whereupon the Securityholder who is alleged to be in breach shall handle all matters related to such indemnification claim, and all references to the Securityholder Representative in Section 10.2 in such event shall refer to the Securityholder. Without implying that other actions would constitute an improper discrimination, each of the Securityholders agrees that discrimination between or among Securityholders solely on the part basis of the respective number of Shares held by each Securityholder or their respective pro rata share or any recovery from the Retention Indemnity Holdback Amount and/or the Special Indemnification Holdback Amount on a joint basis (based on any Securityholder’s pro rata share of any Damage covered in Section 10.1) as specified therein shall not be deemed to be improper.
(c) The Securityholder Representative hereby represents and warrants to Purchaser as follows:
(i) The Securityholder Representative has all necessary limited liability company power and authority to execute and deliver this Agreement and to carry out the Securityholder Representative’s obligations hereunder and thereunder, subject to the laws of agency.
(ii) This Agreement has been duly executed and delivered by the Securityholder Representative and, assuming the due authorization, execution and delivery of this Agreement by Purchaser, the Company and the Sellers, constitutes the valid and legally binding obligation of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by enforceable against the Securityholder Representative in accordance with its terms, subject to (i) bankruptcy, insolvency, reorganization or by similar laws of general application affecting the Equity Holders unless such waiver is rights and remedies of creditors, and to general equity principles and to the laws of agency, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(d) Upon receipt or notice of any indemnification claim, the Securityholder Representative shall give prompt notice of the amount and details thereof (to the extent of the information in writing signed by the waiving party or by the Securityholder Representative;
’s possession) to the advisory committee (ivthe “Advisory Committee”) on behalf established pursuant to that certain engagement letter to be entered into by and among Shareholder Representative Services LLC and certain of the Equity HoldersSecurityholders (the “SRS Engagement Letter”). Promptly thereafter, make, execute, acknowledge and deliver all the Securityholder Representative shall notify the Advisory Committee of the proposed action which the Securityholder Representative recommends shall be taken in response to 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 indemnification claim. The Securityholder Representative shall have the discretion to take such action as the Securityholder Representative shall determine to be in the best interest of all of the Securityholders, including authorizing the distribution to any Securityholder of any portion of the Retention Indemnity Holdback Amount and all action the Special Indemnification Holdback Amount, subject to the limitations of Section 10.5(b). Except to the extent that this Agreement requires that a notice be made to a Securityholder, any notice given to the Securityholder Representative that is within the scope of the Securityholder Representative’s authority under Section 10.5(b) will constitute notice to each and all of the Securityholders at the time notice is given to the Securityholder Representative. Any action taken by, or notice or instruction received from, the Securityholder Representative will be deemed to be action by, or notice or instruction from, each and all of the Securityholders. Except as otherwise contained herein or in its sole the Paying Agent Agreement, Purchaser and absolute discretionthe Company may, may consider and the Paying Agent will, disregard any notice or instruction received from any one or more individual Securityholders.
(e) The Securityholder Representative hereby agrees to do such acts, and execute further documents, as shall be necessary or proper or convenient to carry out the provisions of this Agreement.
(f) The Securityholder Representative will incur no liability in connection with the Merger and other transactions contemplated by its services pursuant to this Agreement and any related agreements except to the other Transaction Agreementsextent resulting from its fraud, bad faith, gross negligence or willful misconduct. The Securityholder Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders shall indemnify the Securityholder Representative and all other agreementshold the Securityholder Representative harmless against any claims, documents or instruments referred to herein or therein or executed in connection herewith demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders expenses (including by means attorneys’ fees and court costs) (collectively, “Representative Losses”) arising out of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement and any related agreements, in each case as such Representative Loss is incurred or suffered; provided that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, willful misconduct or bad faith of the Securityholder Representative, the Securityholder Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence, fraud, willful misconduct or bad faith. If not paid directly to the Securityholder Representative by the Securityholders, any such Representative Losses shall be recovered by the Securityholder Representative from (i) the Securityholder Representative Expense Fund (ii) any other Transaction Agreements funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders in accordance with written instructions delivered by the Securityholder Representative to Purchaser; provided that while this Section allows the Securityholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay any such Representative Losses as they are suffered or incurred, nor does it prevent the Securityholder Representative from seeking any remedies available to it at law. In no event will the Shareholder Representative be required to advance its own funds on behalf of the Equity HoldersSecurityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, including any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to satisfy costsbe applicable to the indemnities provided to the Securityholder Representative hereunder. The foregoing indemnities will survive the Closing, expenses the resignation or liabilities removal of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f))termination of this Agreement.
(bg) Parent may rely upon all actions taken or omitted to be taken by Purchaser (including, after the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively withClosing, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and Company) shall be entitled to rely conclusively on the appointment of the Securityholder Representative and treat such Securityholder Representative as the duly appointed attorney-in-fact of each Securityholder having the duties, power and authority provided for in this Agreement (without further evidence of subject to the limitation set forth in Section 10.5(b)). Purchaser (including, after the Closing, the Company) shall not be liable to any kind whatsoever) on Securityholder for any document purported actions taken or omitted by them in reliance upon any instructions, notice or other instruments delivered by the Securityholder Representative for which it was authorized pursuant to have been executed by the provisions of Section 10.5(b) above. No resignation of the Securityholder Representative shall become effective unless at least thirty (30) days prior written notice of the replacement or on behalf resignation of such Securityholder Representative shall be provided to Purchaser. Purchaser (including, after the Closing, the Company) shall be entitled to rely at any time after receipt of any such notice on the most recent notice so received. The former holders of a majority of the Equity Holders as fully binding upon themCompany’s Shares (on an as-converted basis), may remove the Securityholder Representative by a written instrument delivered to the Securityholder Representative, Purchaser and the Company, and, in such event and also if the Securityholder Representative shall be unable or unwilling to serve in such capacity, such person’s successor who shall serve and exercise the powers of the Securityholder Representative hereunder shall be appointed by a written instrument signed by the former holders of a majority of the Company’s Shares (on an as-converted basis), and delivered to Purchaser. If the Securityholder Representative shall resigndie, dissolve, cease to exist become disabled or otherwise be unable to fulfill its the responsibilities as representative agent of the Equity HoldersSecurityholders, then the Equity Holders Securityholders shall, within ten (10) days after the occurrence of such eventdeath or disability, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative agent and, promptly thereafter, shall notify the Equity Holders and Parent Purchaser of the identity of such successor. Any such successor shall succeed to become the rights “Securityholder Representative” for purposes of Section 10 and obligations of the Securityholder Representative as representative of the Equity Holders hereunderthis Section 10.5. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on themSecurityholders.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacity.
Appears in 1 contract
Securityholder Representative. (a) Pursuant By delivering a signature page to the adoption of this Agreement by Company Common Stockholders representing greater than 50% of the outstanding shares of Company Common Stockor otherwise becoming a party hereto, each Equity Holder will be deemed to have irrevocably appointed, authorized designates and empowered appoints the Securityholder Representative to act as a representative for the benefit of each Equity Holder as the exclusive such Holder’s agent and attorney-in-fact with the full power and authority to act on behalf of each Equity Holder in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority to:
(i) execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Timesuch Holder in all matters pertaining to this Agreement. Without limiting the generality of the foregoing, following the Effective Time, Notices and communications sent to the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any shall be deemed notices and communications to each of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine notices and communications sent to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that Parent by the Securityholder Representative shall not have any obligation to take any such actions, be deemed notices and shall not have any liability for any failure to take any such actions);
(iii) refrain from enforcing any right communications by each of the Equity Holders, arising out of or in each case for all purposes under or in any manner relating this Agreement. Any document delivered to the Securityholder Representative pursuant to this Agreement shall be deemed delivered to each Holder. A decision, consent, waiver, instruction or the any other documents contemplated hereby; provided, however, that no such failure act or omission to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement Representative shall constitute an act or omission by each of the other Transaction Agreements, Holders and shall be deemed a waiver final, binding and conclusive upon each of any them. Parent may conclusively rely upon such right act or interest by omission on the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities part of the Securityholder Representative in connection with matters related to this Agreement as being the act or omission of each of the other Transaction Agreements (providedHolders, thatand Parent and each of its directors, no such costsofficers, expenses employees and agents are hereby relieved from any liability for any acts or liabilities shall be paid from the Escrow Account other than when and if expressly permitted omissions on their part taken in accordance with Section 3.6(e) and Section 3.6(f))any such act or omission on the part of the Securityholder Representative. As used in this Agreement, the term “Securityholder Representative” includes any successor Securityholder Representative appointed in accordance with the terms of its engagement.
(b) Parent may rely upon all actions taken or omitted to be taken by The Holders shall indemnify, defend and hold the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice toharmless against, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to the Holders in respect of, any Equity Holder and all losses, liabilities, expenses, damages, claims, penalties, fines, forfeitures, actions, out of pocket fees, costs and expenses (including reasonable and documented fees and expenses of counsel) (collectively, “Representative Losses”) arising out of or in connection with the Securityholder Representative’s execution and performance of the Transaction Documents, in each case as such Representative Loss is suffered or incurred absent the Securityholder Representative’s or its Affiliates’ gross negligence, fraud or willful misconduct. The Securityholder Representative may, in its discretion, direct the disbursement of a portion of any payment payable to the Holders pursuant to the Merger Agreement as reimbursement in respect of any such Representative Loss, prior to disbursing the remaining amount of such payment to the Holders. Notwithstanding anything to the contrary herein, the provisions of Section 6.7 of the Merger Agreement shall be deemed incorporated by reference herein and shall apply with respect to actions taken or omitted the parties hereto mutatis mutandis and to be taken in its capacity as the Securityholder Representative extent that there is any conflict between the provisions of this Section 6.1 and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part Section 6.7 of the Securityholder Representative) Merger Agreement, the provisions of Section 6.7 of the Merger Agreement shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closinggovern. For the avoidance of doubt, the provisions of this Section 10.15(e6.1(b) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are is an agreement solely as a representative of the Equity Holders and that among the Securityholder Representative and the Holders and shall have in no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacityway be binding on Parent.
Appears in 1 contract
Sources: Registration Rights Agreement (HeartWare International, Inc.)
Securityholder Representative. (a) Pursuant to By virtue of the adoption approval of the Merger and this Agreement by Company Common Stockholders representing greater than 50% the Securityholders and without any further action of any of the outstanding shares of Company Common StockSecurityholders or the Company, each Equity Holder will be deemed to have irrevocably appointed, authorized and empowered (i) Fortis Advisors LLC shall serve as the Securityholder Representative to act as a representative for the benefit of each Equity Holder Representative, and in such capacity as the exclusive agent and attorney-in-fact with the power and authority to act on behalf of each Equity Holder in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority to:
(i) execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following Securityholders other than the Effective Time. Without limiting Dissenting Stockholders, if any (the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the “Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv”) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
each Securityholder (dA) All agrees that all actions taken by the Securityholder Representative under this Agreement and or the other Transaction Agreements Escrow Agreement shall be binding upon all Equity Holders such Securityholder and their respective its successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice tosuch Securityholder, and deal exclusively with(B) waives any and all defenses which may be available to contest, negate or disaffirm the action of the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to taken in good faith under this Agreement or the other Transaction Agreements Escrow Agreement. The Securityholder Representative shall, on behalf of the Securityholders:
(i) take all action permitted in connection with the implementation of those provisions of this Agreement and the Escrow Agreement that require or permit action by the Securityholder Representative;
(ii) take all action permitted in connection with the defense and/or settlement of any and all claims for which the Securityholders may be required to provide indemnification pursuant to SECTION 11 (Indemnification) hereof (including rejecting, contesting, negotiating, settling and resolving any such claims) and any claims that may be made against the Escrow Amount;
(iii) comply with Orders of courts and determinations and awards of arbitrators with respect to claims;
(iv) review and take action with respect to Tax Returns or other agreements Tax matters pursuant to SECTION 6;
(v) review and take action pursuant to Sections 1.7(c) (Post-Closing True-Up) and 1.7(d) (Resolution of Disputes) or instruments contemplated hereby any;
(vi) give and receive all notices and service of process required or thereby permitted to be given or received by the Securityholders or the Merger Securityholder Representative under this Agreement or the Escrow Agreement;
(vii) execute and other transactions deliver all amendments and waivers to this Agreement and the Escrow Agreement that the Securityholder Representative deemed necessary or appropriate, whether prior to, at or after the Closing; and
(viii) take any and all such additional action or refrain from doing any further act or deed as is contemplated hereby to be taken by or therebyon behalf of the Securityholders by the terms of this Agreement or of the Escrow Agreement or as may be necessary or appropriate in the judgment of the Securityholder Representative for the accomplishment of the foregoing.
(b) All notices provided to and/or legal process served upon the Securityholder Representative in accordance with this Agreement or the Escrow Agreement shall be deemed to be provided to and/or served upon the Securityholders and shall be conclusive and binding upon the Securityholders. All decisions, actions, agreements, and instructions by the Securityholder Representative, including any consent, waiver, or agreement between the Securityholder Representative and any Buyer Indemnitee relating to the defense or settlement of any claim for which the Securityholders may be required to provide indemnification pursuant to SECTION 11 (Indemnification) hereof, shall be conclusive and binding upon the Securityholders; and the Buyer, each other Buyer Indemnitee and the Escrow Agent shall be entitled to rely conclusively (without further evidence thereon. The Buyer, each other Buyer Indemnitee and the Escrow Agent shall have no duty to inquire into the authority of any kind whatsoever) on any document purported by person reasonably believed to be the Securityholder Representative to and no responsibility or liability for any action or omission thereof, and no party shall have been executed any cause of action against the Buyer, any other Buyer Indemnitee or the Escrow Agent for any action or omission by such party in reliance upon the instructions or on behalf decisions of any of the Equity Holders as fully binding upon them. If person reasonably believed to be the Securityholder Representative Representative.
(c) In the event that more than one Person shall resignat any time serve collectively as the Securityholder Representative, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative decisions of the Equity Holders, the Equity Holders such Persons shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders as between them and Parent of the identity of such successor. Any such successor shall succeed with respect to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or Securityholders in any other agreement or instrument contemplated hereby relation to the Securityholder Representative in which Representative, be made by majority vote; provided, however that they shall designate a single Person as “Securityholder Representative” for all purposes involving the Buyer, any other Buyer Indemnitee, or the Escrow Agent.
(d) The Securityholder Representative is authorized to act on behalf of the Equity Holders Securityholders notwithstanding any dispute or disagreement among the Securityholders. In taking any actions as Securityholder Representative, the Securityholder Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any person he or it reasonably believes to be authorized thereunto. The Securityholder Representative shall be deemed entitled to: (i) rely upon the Allocation Certificate, (ii) rely upon any signature believed by it to refer be genuine, and (iii) reasonably assume that a signatory has proper authorization to the Equity Holders holding a majority sign on behalf of the outstanding shares applicable Securityholder or other party. The Securityholder Representative may, in all questions arising hereunder, rely on the advice of Company Common Stock. Each Equity Holder upon counsel, and the execution of a Letter of TransmittalSecurityholder Representative shall not be liable to any Securityholder for anything done, agrees that any action taken omitted or suffered in good faith by the Securityholder Representative based on its behalf pursuant such advice. The Securityholder Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and/or the terms Escrow Agreement and no implied covenants or obligations shall be read into this Agreement or the Escrow Agreement against the Securityholder Representative and for purposes of this clarity, there are no obligations of the Securityholder Representative in any other Ancillary Agreement, schedule, exhibit or the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on themCompany Disclosure Schedule.
(e) By As of the execution of a Letter of Transmittal each Equity Holder irrevocably Effective Time, Buyer shall agree that cause the Paying Agent to wire to the Securityholder Representative shall have no liability to the Expense Fund, which will be held by the Securityholder Representative as agent and for the benefit of the Securityholders and will be used for the purposes of paying any Equity Holder with respect to actions taken professional fees and expenses of any attorney, accountant or omitted to be taken in its capacity as other advisors retained by the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, other reasonable out-of-pocket expenses and liabilities which may be incurred by the Securityholder Representative in responding connection with the performance of the Securityholder Representative’s duties under this Agreement (“Representative Expenses”). The Securityholder Representative will hold the Expense Fund separate from its corporate funds and will not voluntarily make it available to such direction its creditors in the event of bankruptcy. The Securityholder Representative is not providing any investment supervision, recommendations or taking such actionadvice. By The Securityholder Representative shall have no responsibility or liability for any loss of principal of the execution Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholder Representative is not acting as a Letter of Transmittal each Equity Holder irrevocably shall agree withholding agent or in any similar capacity in connection with the Expense Fund, and has no tax reporting or income distribution obligations hereunder. As soon as reasonably determined by Securityholder Representative that the Expense Fund is no longer required to be withheld, the Securityholder Representative shall be entitled distribute the remaining Expense Fund (if any) to engage such counselthe Escrow Agent (or directly to the Paying Agent, experts and other agents and consultants as it shall deem necessary Buyer or Surviving Corporation, if so instructed) for further distribution to the Securityholders.
(f) Certain Securityholders have entered into a letter agreement with the Securityholder Representative to provide direction to the Securityholder Representative in connection with exercising the performance of its powers services under this Agreement and performing its function hereunder and the Escrow Agreement (in such Securityholders, including their individual representatives, collectively hereinafter referred to as the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons“Advisory Group”). Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that Neither the Securityholder Representative (together with its members, managers, directors, officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Securityholder Representative Group”), shall be entitled have any liability to reimbursement any Securityholder for all expensesany action taken, suffered or omitted by it as Securityholder Representative Group hereunder, under the Escrow Agreement or under any Securityholder Representative engagement agreement without gross negligence or willful misconduct. The Securityholders shall, in accordance with their respective Pro Rata Shares, indemnify, defend and hold the Securityholder Representative Group harmless from and against any loss, claim, damage, Tax, Liability, cost, fee and expense (including fees, disbursements and advances (including fees and disbursements costs of its counsel, experts counsel and other agents skilled professionals and consultants) in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement that may be incurred or paid by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in connection with the acceptance or administration of its capacity as the Securityholder Representative duties (except for those arising out of as caused by the Securityholder Representative’s gross negligence or willful misconduct), including the legal costs and expenses of investigation defending the Securityholder Representative Group against any claim or Liability in connection with the performance of its duties, to the extent such losses, damages, Taxes, Liabilities and defense of claimsexpenses exceed the Expense Fund. The Equity Holders Securityholders will indemnify not receive any interest or earnings on the Expense Fund. The Securityholder Representative shall be entitled to recover from the Stockholders any Representative Expenses reasonably incurred by the Securityholder Representative in connection with actions taken by the Securityholder Representative pursuant to the terms of this Agreement, the Escrow Agreement or under any Securityholder Representative engagement agreement, without the requirement of any consent or approval by Buyer or any other Person. All of the indemnities, immunities and powers granted to the Securityholder Representative under this Agreement shall survive the Merger or any termination of this Agreement.
(g) If not paid directly to the Securityholder Representative by the Securityholders, the Representative Expenses shall be satisfied (i) from the Expense Fund, (ii) to the extent the amount of the Representative Expenses exceeds the amounts then available in the Expense Fund, from any amounts payable to the Stockholders from the Escrow Amount solely to the extent the Securityholders would otherwise then be paid such amounts from the Escrow Amount in accordance with the terms of this Agreement and the Escrow Agreement (as applicable) and (iii) to the extent the amount of the Representative Expenses exceeds amounts immediately preceding sentence available to the Securityholder Representative under (i) and (ii), from each Securityholder, severally and not jointly and in proportion to its Pro Rata Share; provided that while this section allows the Securityholder Representative to be paid from the Expense Fund and the Escrow Amount, this does not relieve the Securityholders from their obligation to promptly pay such Representative Expenses as they are suffered or incurred, nor does it prevent the Securityholder Representative from seeking any remedies available to it at law or otherwise. The Securityholders acknowledge that the Securityholder 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.
(h) The Securityholder Representative shall have the power to designate its successor hereunder. In the event that the Securityholder Representative resigns from such position or is unable to continue in such position without having designated a successor, Securityholders holding among them the rights to receive at least a majority of the amount then remaining in the Escrow Amount to be distributed to the Securityholders (or, if no Escrow Amount remains, representing a majority in interest of the Pro Rata Shares) (the “Majority Holders”) shall promptly appoint another representative to fill such vacancy, and such substituted representative shall be deemed to be the Securityholder Representative for all purposes of this Agreement; provided that a resigning Securityholder Representative shall continue to perform its duties and obligations until its successor is appointed and has become a party to this Agreement and the Escrow Agreement. In the absence of such appointment, the Securityholder Representative or the Buyer may apply to a court of competent jurisdiction for the appointment of a successor Securityholder Representative, and the costs, expenses and reasonable attorneys’ fees incurred in connection with such proceeding shall be paid from the Expense Fund or, to the extent exhausted, the Securityholders. The Securityholder Representative may be removed at any time upon the written consent of the Majority Holders with not less than thirty (30) days’ prior written notice to the Buyer; provided however, that a successor Securityholder Representative must be concurrently appointed and become a party to this Agreement and the Escrow Agreement. The immunities and rights to indemnification shall survive the resignation or removal of Securityholder Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(i) The provisions of this Section 13.15 (including the powers, immunities and rights to indemnification granted to the Securityholder Representative and the Advisory Group hereunder: (i) are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the Transactions, (ii) shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Securityholder and shall be binding on a pro rata basis based on their respective equity any successor thereto, and (iii) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Company as Escrow Amount. Remedies available at Law for any breach of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in 13.15 may be inadequate; therefore, the determination of the Base Merger Consideration Buyer and the Equity Holders agree that no additional consideration each other Buyer Indemnitee shall be required for entitled to seek temporary and permanent injunctive relief without the enforceability necessity of proving damages or posting any bond if such person brings an action or proceeding to enforce the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under provisions of this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacity13.15.
Appears in 1 contract
Securityholder Representative. (a) Pursuant to the adoption of this Agreement by Company Common Stockholders representing greater than 50% of the outstanding shares of Company Common Stock, each Equity Holder Company Stockholder will be deemed to have irrevocably designated, appointed, authorized and empowered the Securityholder Representative to act as a representative for the benefit of each Equity Holder Company Stockholder as the exclusive agent and attorney-in-fact attorney‑in‑fact with the power and authority to act on behalf of each Equity Holder Company Stockholder in connection with and to facilitate the consummation of the Transactions (including the Merger), which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Agreement; 86 provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders Company Stockholders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority toauthority:
(i) to execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case thereby as the Securityholder Representative, in its sole discretion, may deem necessary or desirable, including any amendments or modifications to this Agreement or the other Transaction Agreements;
(ii) to enforce and protect the rights and interests of the Equity Holders following the Effective Time Company Stockholders and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective TimeCompany Stockholders. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent Parent, R1 or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity HoldersCompany Stockholders, (C) receive process on behalf of any or all Equity Holders Company Stockholders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary necessary, and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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 Equity HoldersCompany Stockholders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders Company Stockholders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writingswritings (including, without limitation, the EMS Stockholders Agreement and any joinders thereto), and, in general, to do any and all things and to take any and all action that the Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the Merger and other transactions contemplated by this Agreement and the other Transaction 87 Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) to terminate this Agreement if the Company is entitled to do so;
(vi) to give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration;
(vii) to determine whether to deliver a Notice of Disagreement and to resolve any disputes regarding the Closing Statement; and
(viviii) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), to make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity HoldersCompany Stockholders, including by using the Securityholder Representative Expense Amount (and any interest or earnings thereon) to satisfy costs, expenses or and/or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (providedAgreements, thatwith any balance of the Securityholder Representative Expense Amount not used for such purposes to be disbursed and paid, at such time as the Securityholder Representative determines, in its sole discretion, that no additional such costs, expenses or liabilities shall be paid from become due and payable, to the Escrow Account other than when and if expressly permitted Company Stockholders in accordance with Section 3.6(e) and Section 3.6(f3.06(f)), which, for the avoidance of doubt, shall not be prior to the determination of the Final Cash Merger Consideration.
(b) Parent and R1 may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity HoldersCompany Stockholders.
(c) 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 Equity Holder Company Stockholder and (ii) shall survive the consummation of the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders Company Stockholders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders Company Stockholders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, unless otherwise instructed by the Securityholder Representative, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders Company Stockholders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity HoldersCompany Stockholders, the Equity Holders Company Stockholders shall, within ten 10 days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders Company Stockholders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders Company Stockholders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders Company Stockholders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common StockStockholders. Each Equity Holder Company Stockholder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.310.15, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder Company Stockholder irrevocably shall agree and acknowledge that the Securityholder Representative shall have no liability to any Equity Holder Company Stockholder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder Company Stockholder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by By the execution of a Letter of Transmittal each Equity Holder Company Stockholder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders Company Stockholders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders Company Stockholders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders Company Stockholders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacity.
Appears in 1 contract
Sources: Merger Agreement (R1 RCM Inc.)
Securityholder Representative. (a) Pursuant to the adoption of By approving this Agreement and the transactions contemplated hereby or by Company Common Stockholders representing greater than 50% executing and delivering a Letter of the outstanding shares of Company Common StockTransmittal, each Equity Holder will be deemed to Company Securityholder shall have irrevocably appointed, authorized and empowered the appointed Securityholder Representative to act as a such Person’s representative for the benefit of each Equity Holder as the exclusive agent and attorney-in-fact with the power and authority to act on behalf of such Person for all purposes in connection with this Agreement, the Additional Agreements and the agreements ancillary hereto and thereto. The Securityholder Representative shall act as the representative of the Company Securityholders in respect of all matters arising under this Agreement, the Additional Agreements and the agreements ancillary hereto and thereto, and shall be authorized to act, or refrain from acting, with respect to any actions to be taken by or on behalf of the Company Securityholders or the Securityholder Representative, including to enforce any rights granted to the Company Securityholders hereunder and thereunder, in each Equity Holder case as the Securityholder Representative believes is necessary or appropriate under this Agreement, the Additional Agreements and/or the agreements ancillary hereto and thereto, for and on behalf of the Company Securityholders. The Company Securityholders shall be bound by all such actions taken by the Securityholder Representative and the Company Securityholders shall not be permitted to take any such actions.
(b) The Securityholder Representative is serving as the Securityholder Representative solely for purposes of administrative convenience, and is not personally liable for any of the obligations of the Company, any of its Subsidiaries or the Company Securityholders hereunder, and Parent (on behalf of itself and its Affiliates) agrees that it will not look to the Securityholder Representative or the underlying assets of the Securityholder Representative for the satisfaction of any obligations of the Company, any of its Subsidiaries or the Company Securityholders. The Securityholder Representative shall not be liable for any error of judgment, or any action taken, suffered or omitted to be taken, in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to performance by the Securityholder Representative of the Securityholder Representative’s duties or the exercise by the Securityholder Representative of the Securityholder Representative’s rights and remedies under this Agreement; provided, howeverany Additional Agreement or any agreement ancillary hereto or thereto, that except in the case of its intentional fraud or willful misconduct. No bond shall be required of the Securityholder Representative. The Securityholder Representative may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Securityholder Representative shall not have no obligation any duty to ascertain or to inquire as to the Equity Holders to actperformance or observance of any of the terms, except as expressly provided herein, and without covenants or conditions of this Agreement or any Additional Agreement or any agreement ancillary hereto or thereto. Without limiting the generality of the foregoing, the Securityholder Representative shall have the full power and authority to:
(i) execute to interpret all the terms and deliver provisions of this Agreement and the Additional Agreements or any agreement ancillary hereto or thereto, and to consent to any amendment hereof or thereof on behalf of the Equity Holders such waivers Company Securityholders and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;their respective successors.
(iic) enforce Each Company Securityholder, jointly and protect the rights severally, agrees to indemnify and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of hold harmless the Securityholder Representative arising out of or under or in any manner relating to this Agreement against all fees and the other Transaction Agreements expenses (including legal fees and the other agreements contemplated hereby and thereby or the Merger expenses) and other transactions provided for herein amounts payable or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated incurred by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to the performance of any of its duties under this Agreement or the Additional Agreements, including any such fees, expenses, or other Transaction Agreements amounts that may be incurred by the Securityholder Representative in connection with any Action to which the Securityholder Representative is made a party by reason of the fact it is or was acting as the Securityholder Representative pursuant to the terms of this Agreement or the Additional Agreements. Notwithstanding the foregoing in this clause (providedc), that, in no such costs, expenses or liabilities shall event will the indemnity contemplated in this clause (c) be paid from by the Company Securityholders to the Securityholder Representative in the form of Earnout Shares released pursuant to the Earnout Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f))Agreement.
(bd) Parent may shall be entitled to rely upon on all statements, representations, decisions of, and actions taken or omitted to be taken by by, the Securityholder Representative pursuant as being the statements, representations, decisions of, and actions of Company Securityholders with respect to the matters relating to this Agreement and the other Transaction Agreements, all of which actions or omissions any Additional Agreement or any agreement ancillary hereto or thereto. Parent shall be legally binding upon entitled to deal solely with the Equity HoldersSecurityholder Representative (and shall not be required to deal with any Company Securityholder, in his, her or its capacity as such) with respect to the matters relating to this Agreement or any Additional Agreement or any agreement ancillary hereto or thereto.
(ce) The grant Securityholder Representative may resign at any time by giving twenty (20) days’ notice to Parent and the Company Securityholders; provided, however, in the event of authority provided for herein the resignation or removal of the Securityholder Representative, a new Securityholder Representative (iwho shall be reasonably acceptable to Parent) shall be appointed by the vote or written consent of a majority of the shares of Company Common Stock then held by the Company Securityholders as of immediately prior to the Effective Time; provided, further, that if any such vacancy is not so filled within thirty (30) days following the occurrence of such vacancy, the Parent Representative shall be entitled to appoint a successor Securityholder Representative, and the provisions of this Section 11.18 shall apply in all respects to such successor Securityholder Representative
(f) The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy by Company Securityholders in any manner or liquidation of for any Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of themreason. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect This authority granted to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resignnot be affected by the death, dissolveillness, cease dissolution, disability, incapacity or other inability to exist or otherwise be unable act of any principal pursuant to fulfill its responsibilities any applicable Law. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ hereby accepts his appointment as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successorinitial Securityholder Representative. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any timedecision, all references herein act, consent or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action instruction taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e11.18 on behalf of Company Securityholders (each, an “Securityholder Representative Authorized”) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge final, binding and conclusive on Company Securityholders as fully as if such Persons had taken such Securityholder Representative Authorized Action. Each Company Securityholder agrees that the Securityholder Representative’s obligations under this Section 10.15 are solely , as a representative of the Equity Holders and that the Securityholder Representative Representative, shall have no personal responsibility or liability to a Company Securityholder for any expenses, costs or other liabilities incurred by it in such capacitySecurity Representative Authorized Action.
Appears in 1 contract
Sources: Merger Agreement (Revelstone Capital Acquisition Corp.)
Securityholder Representative. (a) Pursuant to By voting in favor of the adoption of this Agreement by Company Common Stockholders representing greater than 50% Agreement, the approval of the outstanding shares principal terms of Company Common Stockthe Mergers, and the consummation of the Mergers, executing a Joinder Agreement or participating in the Mergers and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Mergers, each Equity Holder will Company Indemnitor shall be deemed to have irrevocably appointedapproved the designation of, authorized and empowered the Securityholder hereby designates, Shareholder Representative to act as a representative for the benefit of each Equity Holder Services LLC as the exclusive representative, agent and attorney-in-fact with the power and authority to act on behalf of each Equity Holder in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority to:
(i) execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality Company Indemnitors as of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or Closing for all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or purposes in connection with this Agreement, the Paying Agent Agreement or and the Escrow Agreement, and any other Transaction Agreements or on behalf of the Equity Holdersagreements ancillary hereto, including to satisfy costsgive and receive notices and communications, expenses to authorize satisfaction of claims by Parent, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all other actions that are either (i) necessary or liabilities appropriate in the judgment of the Securityholder Representative in connection with matters related to this Agreement for the accomplishment of the foregoing or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and permitted by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and Paying Agent Agreement or the other agreements and instruments contemplated hereby and therebyEscrow Agreement. The Securityholder Representative may resign at any time upon at least ten (10) days prior written notice to the Company Indemnitors. Such agency may be changed by the Company Indemnitors from time to time upon not less than ten (10) days prior written notice to Parent; provided, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative may not be removed unless the former holders of a majority of Company Capital Stock agree to such removal and to the identity of the substituted agent. A vacancy in the position of Securityholder Representative may be filled by the former holders of a majority of Company Capital Stock. No bond shall have no liability be required of the Securityholder Representative. After the Closing, notices or communications to or from the Securityholder Representative shall constitute notice to or from the Company Indemnitors.
(b) Neither the Securityholder Representative nor any Equity Holder with respect to actions taken or omitted to be taken member of the Advisory Committee (as defined in its capacity as that certain engagement letter entered into between the Securityholder Representative and that certain of the Securityholder Representative Company Indemnitors in connection with the transactions contemplated hereby (the “Engagement Letter”)) shall be under no obligation incur liability of any kind with respect to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred omission by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary Advisory Committee in connection with exercising its powers and performing its function hereunder and (in their services pursuant to this Agreement, the absence of bad faith on Engagement Letter, the part of Paying Agent Agreement, the Securityholder Representative) shall be entitled Escrow Agreement or any other agreement ancillary hereto, except to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification extent resulting from the Equity Holders against any lossbad faith, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses misconduct of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with or such member of the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company Advisory Committee, as of immediately prior to the Closingapplicable. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration preceding sentence shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that not prejudice the Securityholder Representative’s obligations right to indemnification from the members of the Advisory Committee (in their capacity as Company Indemnitors) pursuant to the following sentence. The Company Indemnitors shall, on a several and not joint basis and based on their respective Pro Rata Shares, indemnify, defend and hold harmless the Securityholder Representative and each member of the Advisory Committee from and against any and all losses, liabilities, damages, penalties, fines, forfeitures, actions, fees, and out-of-pocket costs and expenses (including the reasonable out-of-pocket fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) to the extent arising out of or in connection with the Securityholder Representative’s or the Advisory Committee’s execution and performance of this Agreement, the Paying Agent Agreement, the Escrow Agreement and any other agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Securityholder Representative or such member of the Advisory Committee, as applicable, the Securityholder Representative or such member of the Advisory Committee, as applicable, shall promptly reimburse the Company Indemnitors the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. If not paid directly to the Securityholder Representative by the Company Indemnitors, any such Representative Losses may be recovered by the Securityholder Representative from (i) the funds in the Expense Fund Account and (ii) any other funds that become payable to the Company Indemnitors under this Section 10.15 Agreement at such time as such amounts would otherwise be distributable to the Company Indemnitors; provided, that while this section allows the Securityholder Representative to be paid from the aforementioned source of funds, this does not relieve the Company Indemnitors from their obligation to promptly pay, in accordance with their respective Pro Rata Shares, such Representative Losses as they are solely suffered or incurred, nor does it prevent the Securityholder Representative from seeking any remedies available to it at law or otherwise. In no event shall the Securityholder Representative be required to advance its own funds on behalf of the Company Indemnitors or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Indemnitors set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Securityholder Representative under this section. The Company Indemnitors acknowledge and agree that the foregoing indemnities shall survive the resignation or removal of the Securityholder Representative or the termination of this Agreement.
(c) Upon the Closing, Parent shall wire to an account of Securityholder Representative as set forth on the Allocation Schedule (the “Expense Fund Account”) an amount of $200,000 in cash (the “Expense Fund”), which shall be used for the purposes of paying directly, or reimbursing the Securityholder Representative for, any third party expenses pursuant to this Agreement, Escrow Agreement and any other agreements ancillary hereto. The Company Indemnitors shall not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Securityholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Securityholder Representative shall not be liable for any loss of principal of the Expense Fund other than as a representative result of its bad faith, gross negligence or willful misconduct. The Securityholder Representative shall hold these funds separate from its corporate funds, shall not use these funds for its operating expenses or any other corporate purposes and shall not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable after the completion of the Equity Holders and that Securityholder Representative’s responsibilities, the Securityholder Representative shall have no personal responsibility deliver the balance of the Expense Fund to the Paying Agent for further distribution to the Company Securityholders the portion of such balance payable pursuant to Section 1.7(a), Section 1.7(b)(i) and Section 1.7(c), as applicable; provided, that as a condition to Parent’s and Paying Agent’s obligation to make such payments, the Securityholder Representative shall first deliver to Parent an updated Allocation Schedule setting forth the portion of such Expense Fund distribution payable to each Company Indemnitor. For tax purposes, the Expense Fund shall be treated as having been received and voluntarily set aside by the Company Indemnitors at the time of Closing. Any tax required to be withheld with respect to the deemed payment to a Company Indemnitor of its portion of the Expense Fund shall reduce the amount of cash to such Person at Closing in respect of Company Capital Stock and shall not reduce the Expense Fund.
(d) A decision, act, consent or liability instruction of the Securityholder Representative, including but not limited to an amendment, of this Agreement pursuant to Section 9.7 hereof, in accordance with the authority granted to the Securityholder Representative hereunder shall constitute a decision of the Company Indemnitors and shall be final, binding and conclusive upon the Company Indemnitors. Parent may rely upon any such decision, act, consent or instruction of the Securityholder Representative as being the decision, act, consent or instruction of the Company Indemnitors. Parent is hereby relieved from any Liability to any Person for any expensesacts done by them in accordance with such decision, costs act, consent or other liabilities incurred by it in such capacityinstruction of the Securityholder Representative.
Appears in 1 contract
Sources: Merger Agreement (PagerDuty, Inc.)
Securityholder Representative. (a) Pursuant to the adoption of this Agreement by Company Common Stockholders representing greater than 50% of the outstanding shares of Company Common Stock, each Equity Holder will be deemed to have irrevocably appointed, authorized and empowered the Securityholder Representative to act as a representative for the benefit of each Equity Holder as the exclusive agent and attorney-in-fact with the power and authority to act on behalf of each Equity Holder in connection with and to facilitate the consummation of the Transactions (including the Initial Merger and the Follow-On Merger), which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, act except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority toauthority:
(i) to execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Initial Merger and the Follow-On Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case thereby as the Securityholder Representative, in its sole discretion, may deem necessary or desirable, including any amendments or modifications to this Agreement or the other Transaction Agreements;
(ii) to enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger Mergers and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective TimeHolders. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary necessary, and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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 Equity Holders, Holders arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the Initial Merger and the Follow-On Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) to give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration;
(vi) to determine whether to deliver a Notice of Disagreement and to resolve any disputes regarding the Closing Statement; and
(vivii) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), to make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including by using the Securityholder Representative Expense Amount (and any interest or earnings thereon) to satisfy costs, expenses or and/or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (providedAgreements, thatwith any balance of the Securityholder Representative Expense Amount not used for such purposes to be disbursed and paid, at such time as the Securityholder Representative determines, in its sole discretion, that no additional such costs, expenses or liabilities shall be paid from become due and payable, to the Escrow Account other than when and if expressly permitted Equity Holders in accordance with Section 3.6(e) and Section 3.6(f3.06(e)), which, for the avoidance of doubt, shall not be prior to the determination of the Final Merger Consideration.
(b) Parent and the Merger Subs may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction AgreementsAgreements (including any instructions with respect to the allocation or payment of any consideration payable to the Equity Holders or former Equity Holders hereunder), all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of the Mergers and other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger Mergers and other transactions contemplated hereby or thereby, unless otherwise instructed by the Securityholder Representative, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten 10 days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common StockHolders. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.310.15, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal Transmittal, each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal Transmittal, each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by By the execution of a Letter of Transmittal Transmittal, each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacity.
Appears in 1 contract
Securityholder Representative. (a) Pursuant to the adoption of this Agreement by Company Common Stockholders representing greater than 50% Immediately upon receipt of the outstanding shares of Company Common StockRequired Stockholder Approvals, each Equity Holder will Company Securityholder shall be deemed to have irrevocably appointedconsented to the appointment of United States Trust Company, authorized and empowered N.A., as Trustee of the Securityholder Representative to act Memorial Drive Trust, as a such Company Securityholder’s representative for the benefit of each Equity Holder as the exclusive agent and attorney-in-fact (the “Securityholder Representative”), with the full power and authority of substitution, to act on behalf of each Equity Holder the Company Securityholders to the extent and in connection with the Merger, which shall include manner set forth in this Agreement and the power Escrow Agreement. The powers and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that of the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority toinclude:
(i) The power and authority to execute and deliver on behalf of the Equity Holders such waivers and consents in connection with as Securityholder Representative this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirableEscrow Agreement;
(ii) enforce The power and protect authority to give or receive any notice or instruction permitted or required under this Agreement or the rights Escrow Agreement, to be given or received by any Company Securityholder, and interests each of the Equity Holders following the Effective Time and to enforce and protect the rights and interests them (other than notice for service of the Securityholder Representative arising out of or under or in any manner process relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or thereinany Legal Proceeding, which notice must be given to each Company Securityholder individually, as applicable), and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements action for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriateCompany Securityholders, and give receiptseach of them, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable under this Agreement or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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)Escrow Agreement;
(iii) refrain from enforcing The power and authority to contest, negotiate, defend, compromise or settle any right of the Equity Holders, arising out of actual or under or in any manner relating threatened Legal Proceedings for which a Parent Indemnified Party may be entitled to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest indemnification through counsel selected by the Securityholder Representative and solely at the cost, risk and expense of the Company Securityholders, authorize payment to any Parent Indemnified Party of any of the Escrow Funds, or any portion thereof, in satisfaction of any Parent Claims, agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such Parent Claims, resolve any Parent Claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated hereby by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Securityholder or necessary in the Equity Holders unless such waiver is in writing signed by the waiving party or by judgment of the Securityholder RepresentativeRepresentative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement and the Escrow Agreement;
(iv) on behalf The power and authority to consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewithCompany Securityholders;
(v) give The power and receive all notices authority to review, negotiate and communications agree to be given or received by and authorize any payments from the Equity Holders under Escrow Funds in satisfaction of any payment obligation, in each case, on behalf of the Company Securityholders, as contemplated in the Escrow Agreement;
(vi) The power and authority to waive any terms and conditions of this Agreement or the Escrow Agreement providing rights or benefits to the Company Securityholders (other than the payment to Company Securityholders of the Per Share Merger Consideration, the Option Consideration and to receive service of process Warrant Consideration in connection accordance with any claims under this Agreement the terms hereof and in the other Transaction Agreements, including service of process in connection with any arbitrationmanner provided herein); and
(vivii) on behalf The power and authority to take any actions in regard to such other matters as are reasonably necessary for the consummation of the Equity Holders (including by means of establishing an escrow account transactions contemplated hereby or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of as the Securityholder Representative reasonably believes are in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from best interests of the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f))Company Securityholders.
(b) Parent may rely upon all actions taken or omitted to be taken All decisions, actions, consents and instructions by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, shall be binding upon all of which actions the Company Securityholders, and no Company Securityholder shall have the right to object to, dissent from, protest or omissions otherwise contest the same. Parent and Merger Sub shall be legally binding upon entitled to rely on any decision, action, consent or instruction of the Equity HoldersSecurityholder Representative as being the decision, action, consent or instruction of the Company Securityholders, and Parent and Merger Sub are hereby relieved from any liability to any Person for acts done by them in accordance with any such decision, act, consent or instruction.
(c) The grant Securityholder Representative may resign at any time, and may be removed for any reason or no reason by the vote or written consent of authority provided for herein Company Securityholders holding a majority interest (idetermined with respect to each Company Securityholder’s Proportionate Percentage) is coupled with an interest and shall be irrevocable and survive in the Escrow Fund at the time of such vote or written consent (the “Majority Holders”). In the event of the death, incompetencyincapacity, bankruptcy resignation or liquidation removal of any Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice toRepresentative, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the a new Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of appointed by the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders Majority Holders. Notice of shares such vote or a copy of Company Common Stock) a successor representative the written consent appointing such new Securityholder Representative shall be sent to Parent and, promptly thereafterafter the Effective Time, to the Surviving Corporation, such appointment to be effective upon the later of the date indicated in such consent or the date such consent is received by Parent and, after the Effective Time, the Surviving Corporation; provided that until such notice is received, Parent, Merger Sub and the Surviving Corporation, as applicable, shall notify be entitled to rely on the Equity Holders decisions, actions, consents and Parent instructions of the identity of such successor. Any such successor prior Securityholder Representative as described in Section 1.12(b).
(d) The Securityholder Representative shall succeed not be liable to the rights Company Securityholders for actions taken pursuant to this Agreement or the Escrow Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted willful misconduct or fraud. Except in cases where a court of competent jurisdiction has made such a finding, the Company Securityholders shall severally (in accordance with their respective Proportionate Percentages) indemnify and obligations of hold harmless the Securityholder Representative from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any timeunder this Agreement, all references herein the Escrow Agreement or in any other agreement or instrument contemplated hereby to the otherwise. The Securityholder Representative in which the may engage attorneys, accountants and other professionals and experts. The Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder may rely conclusively upon the execution of a Letter of Transmittalinformation, agrees that reports, statements and opinions prepared or presented by such professionals, and any action taken by the Securityholder Representative based on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, such reliance shall be fully binding on themdeemed conclusively to have been taken in good faith and in the exercise of reasonable judgment.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the The Securityholder Representative shall have no liability to will serve without compensation but will be reimbursed on a current basis from the Escrow Funds for any Equity Holder with respect to actions taken expenses incurred or omitted anticipated to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security incurred without gross negligence or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative and arising out of or in connection with the acceptance or administration of the Securityholder Representative) shall ’s duties hereunder, including the reasonable fees and expenses of any legal counsel, accountants and other professionals and experts retained by the Securityholder Representative, and will also be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification receive from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted Escrow Funds amounts payable to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with subsection (d) above. In addition, and without limitation of the immediately preceding sentence on a pro rata basis based on their respective equity interest foregoing, each Company Securityholder agrees that such Company Securityholders’ Proportionate Percentage of such reasonable expenses (and any amounts payable to the Securityholder Representative in accordance with Subsection (d) above) may be deducted by the Securityholder Representative from amounts distributed to the Company as of immediately Securityholders from the Escrow Funds prior to delivery of such Escrow Funds to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms hereinCompany Securityholders.
(f) The parties acknowledge that Required Stockholder Approvals shall also be deemed to constitute approval of all arrangements relating to the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative transactions contemplated hereby and to the provisions hereof binding upon the Company Securityholders, including Article VII and the provisions of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacityEscrow Agreement.
Appears in 1 contract
Sources: Merger Agreement (Green Mountain Coffee Roasters Inc)
Securityholder Representative. (a) Pursuant to the adoption and approval of this Agreement by Company Common Stockholders representing greater than 50% members of the outstanding shares of Company Common Stockrepresenting a “Unitholder Super Majority” and a “Preferred Unitholder Majority” (as each such term is defined in the LLC Agreement), each Equity Holder will be deemed irrevocably appoints Honeyrep, LLC as the “Securityholder Representative”. In accordance with and subject to have irrevocably appointedthe terms of the Honeyrep, authorized and empowered LLC Operating Agreement attached to this Agreement as Exhibit M (the “SR Operating Agreement”), the Securityholder Representative to act as a representative for the benefit of each Equity Holder as the exclusive agent is and will be such Holders’ representative, attorney-in-fact and agent, with full substitution to act in the name, place and stead of such Holder, solely with respect to this Agreement and the Escrow Agreement with the power power, authority and authority discretion to act act, pursuant to the terms of the SR Operating Agreement, on behalf of each Equity Holder all Holders in connection any amendment of or litigation or arbitration involving this Agreement and the Escrow Agreement and to do or refrain from doing all such further acts and things, and, pursuant to the terms of the SR Operating Agreement, to execute all such documents, as such Securityholder Representative shall, pursuant to the terms of the SR Operating Agreement, deem necessary or advisable in conjunction with any of the transactions contemplated by the Merger, which shall include this Agreement and the power and authority as is necessary to carry out Escrow Agreement, including the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority topower:
(i) execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem take all action necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other waiver of any condition to the obligations of the Holders to consummate the transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewithEscrow Agreement;
(vii) to negotiate, execute and deliver all ancillary agreements, statements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Escrow Agreement);
(iii) to give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with the any claims under this Agreement and the other Transaction Agreements, including service of process Escrow Agreement;
(iv) to receive and make payments under this Agreement or the Escrow Agreement to the Holders to the extent not otherwise provided in connection with any arbitrationthis Agreement or the Escrow Agreement; and
(viv) to take all actions which under this Agreement and the Escrow Agreement may be taken by the Holders and to do or refrain from doing any further act or deed on behalf of the Equity Holders (including by means Holder which Securityholder Representative deems necessary or advisable in its good faith discretion relating to the subject matter of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from and the Escrow Account other than when Agreement as fully and completely as such Holder could do if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f))personally present.
(b) Parent may rely upon all actions taken or omitted Subject to be taken by the terms of the SR Operating Agreement, the Securityholder Representative pursuant to may not amend this Agreement or any other Transaction Agreement (i) to create any personal liability of any Holder hereunder or thereunder, (ii) to increase the maximum aggregate indemnification obligation of the Holders beyond their respective Percentage Shares of the amount of the Escrow Amount, the Deferred Premium Payments and the other Transaction AgreementsEarn-Out Payments, all if any, or (iii) take any action pursuant hereto that could disproportionately affect any Holder or group of which actions Holders without the prior consent of such affected Holder or omissions shall group of Holders. The operation of the Securityholder Representative will be legally binding upon governed by the Equity HoldersSR Operating Agreement.
(c) The grant If Honeyrep, LLC resigns or becomes unable to serve as Securityholder Representative, such other Person or Persons as may be designated in accordance with the terms of authority provided for herein (i) is coupled with an interest and the SR Operating Agreement shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreementssucceed as Securityholder Representative.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 10.4 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities expenses incurred by it in such capacitycapacity and that all payments to Buyer as a result of any indemnification obligations shall be made solely from, and to the extent of, the Indemnification Sources.
(e) Out-of-pocket expenses incurred by, or reasonably anticipated to be incurred by, the Securityholder Representative for attorneys’ and accountants’ fees and other costs may, at the written direction of the Securityholder Representative, be withheld, and paid to the Securityholder Representative, in connection with the distribution to Holders, Performance Unitholders or EPP Unitholders of any Deferred Premium Payment or Earn-Out Payment or the release of any portion of the Escrow Fund to Holders, Performance Unitholders or EPP Unitholders in accordance with the Escrow Agreement. In addition, in the event the Securityholder Representative, in its sole discretion, determines that the Securityholder Representative Defense Fund is not adequately funded in light of the Securityholder Representative’s election to assume the defense of any Third-Party Claim(s) or potential future Third-Party Claims that have not been asserted, the Securityholder Representative shall be entitled to deduct from any distribution to Holders, Performance Unitholders or EPP Unitholders of any Deferred Premium Payment or Earn-Out Payment or the release of any portion of the Escrow Fund to Holders, Performance Unitholders or EPP Unitholders in accordance with the Escrow Agreement, amounts the Securityholder Representative reasonably and in good faith determines are necessary or appropriate to cover expected costs related to such Third-Party Claim(s). In the event the Securityholder Representative elects to withhold amounts from any distribution to Holders, Performance Unitholders or EPP Unitholders of any Deferred Premium Payment or Earn-Out Payment or the release of any portion of the Escrow Fund to Holders, Performance Unitholders or EPP Unitholders in accordance with the Escrow Agreement in accordance with this Section 10.4(e), the Securityholder Representative shall deliver a form of joint written direction to Buyer in advance of such distribution or release stating the amounts to be withheld and the reasons therefor, and Buyer agrees to execute such joint written direction to the Escrow Agent or Paying Agent, as applicable. Upon the resolution of all Third-Party Claims, any remaining amounts in the Securityholder Representative Defense Fund shall be distributed in accordance with the terms of the SR Operating Agreement.
Appears in 1 contract
Securityholder Representative. (a) Pursuant to the adoption For purposes of this Agreement by Company Common Stockholders representing greater than 50% Agreement, the Escrowed Stockholders, without any further action on the part of the outstanding shares of Company Common Stockany such Escrowed Stockholder, each Equity Holder will shall be deemed to have irrevocably appointedconsented to the appointment of Hope ▇▇▇▇▇▇▇ ▇▇ the representative of such Escrowed Stockholders (the "Securityholder Representative"), authorized and empowered the Securityholder Representative to act as a representative for the benefit of each Equity Holder as the exclusive agent and attorney-in-fact with for and on behalf of each such Escrowed Stockholder, and the taking by the Securityholder Representative of any and all actions and the making of any decisions required or permitted to be taken by her under this Agreement, including the exercise of the power to (i) execute this Agreement, (ii) vote Parent Shares held in the Escrow Fund, but only in accordance with each Escrowed Stockholder's written instructions; (iii) authorize delivery to Parent of the Escrow Amount, or any portion thereof, in satisfaction of Indemnification Claims, (iv) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to such Indemnification Claims, (v) resolve any Indemnification Claims and (vi) take all actions necessary in the judgment of the Securityholder Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement. Accordingly, the Securityholder Representative has unlimited authority and power to act on behalf of each Equity Holder in connection Escrowed Stockholder with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority to:
(i) execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating respect to this Agreement and the disposition, settlement or other Transaction Agreements handling of all Indemnification Claims, rights or obligations arising from and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and taken pursuant to take any and this Agreement. The Escrowed Stockholders will be bound by all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated taken by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice toAgreement, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and Parent shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by action or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part decision of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the The Securityholder Representative shall be entitled will incur no liability with respect to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions action taken or omitted to be taken suffered by her in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct)reliance upon any notice, including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubtdirection, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expensesinstruction, costs consent, statement or other liabilities incurred by it in such capacity.document believed
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Peoplesoft Inc)
Securityholder Representative. (a) Pursuant to the adoption of By approving this Agreement and the transactions contemplated hereby or by Company Common Stockholders representing greater than 50% executing and delivering a Letter of the outstanding shares of Company Common StockTransmittal, each Equity Holder will be deemed to Company Stockholder shall have irrevocably appointed, authorized and empowered the appointed Securityholder Representative to act as a such Person’s representative for the benefit of each Equity Holder as the exclusive agent and attorney-in-fact with the power and authority to act on behalf of such Person for all purposes in connection with this Agreement, the Additional Agreements and the agreements ancillary hereto and thereto. The Securityholder Representative shall act as the representative of the Company Stockholders in respect of all matters arising under this Agreement, the Additional Agreements and the agreements ancillary hereto and thereto, and shall be authorized to act, or refrain from acting, with respect to any actions to be taken by or on behalf of the Company Stockholders or the Securityholder Representative, including to enforce any rights granted to the Company Stockholders hereunder and thereunder, in each Equity Holder case as the Securityholder Representative believes is necessary or appropriate under this Agreement, the Additional Agreements and/or the agreements ancillary hereto and thereto, for and on behalf of the Company Stockholders. The Company Stockholders shall be bound by all such actions taken by the Securityholder Representative and the Company Stockholders shall not be permitted to take any such actions.
(b) The Securityholder Representative is serving as the Securityholder Representative solely for purposes of administrative convenience, and is not personally liable for any of the obligations of the Company, any of its Subsidiaries or the Company Stockholders hereunder, and Parent (on behalf of itself and its Affiliates) agrees that it will not look to the Securityholder Representative or the underlying assets of the Securityholder Representative for the satisfaction of any obligations of the Company, any of its Subsidiaries or the Company Stockholders. The Securityholder Representative shall not be liable for any error of judgment, or any action taken, suffered or omitted to be taken, in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to performance by the Securityholder Representative of the Securityholder Representative’s duties or the exercise by the Securityholder Representative of the Securityholder Representative’s rights and remedies under this Agreement; provided, howeverany Additional Agreement or any agreement ancillary hereto or thereto, that except in the case of its intentional fraud or willful misconduct. No bond shall be required of the Securityholder Representative. The Securityholder Representative may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Securityholder Representative shall not have no obligation any duty to ascertain or to inquire as to the Equity Holders to actperformance or observance of any of the terms, except as expressly provided herein, and without covenants or conditions of this Agreement or any Additional Agreement or any agreement ancillary hereto or thereto. Without limiting the generality of the foregoing, the Securityholder Representative shall have the full power and authority to:
(i) execute to interpret all the terms and deliver provisions of this Agreement and the Additional Agreements or any agreement ancillary hereto or thereto, and to consent to any amendment hereof or thereof on behalf of the Equity Holders such waivers Company Stockholders and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holderstheir respective successors.
(c) The grant Securityholder Representative may resign at any time by giving twenty (20) days’ notice to Parent and the Company Stockholders; provided, however, in the event of authority provided for herein the resignation or removal of the Securityholder Representative, a new Securityholder Representative (iwho shall be reasonably acceptable to Parent) shall be appointed by the vote or written consent of a majority of the shares of Parent Common Stock, voting together as a single class (with each such share entitled to one vote), then held by the Company Stockholders as of immediately prior to the Effective Time.
(d) The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy by Company Stockholders in any manner or liquidation of for any Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of themreason. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect This authority granted to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resignnot be affected by the death, dissolveillness, cease dissolution, disability, incapacity or other inability to exist or otherwise be unable act of any principal pursuant to fulfill its responsibilities any applicable Law. S▇▇▇▇ ▇▇▇▇▇▇▇ hereby accepts his appointment as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successorinitial Securityholder Representative. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any timedecision, all references herein act, consent or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action instruction taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e11.18 on behalf of Company Stockholders (each, an “Securityholder Representative Authorized Action”) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely final, binding and conclusive on Company Stockholders as a representative of the Equity Holders and that the fully as if such Persons had taken such Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacityAuthorized Action.
Appears in 1 contract
Securityholder Representative. (a) Pursuant to By virtue of the adoption approval of the Acquisition and this Agreement by Company Common Stockholders representing greater than 50% each of the outstanding shares of Company Common StockSecurityholders, each Equity Holder will of the Securityholders shall be deemed to have irrevocably appointedagreed to appoint Lars Sunnanväder as his, authorized and empowered the Securityholder Representative to act her or its, as a representative for the benefit of each Equity Holder as the exclusive applicable, agent and attorney-in-fact fact, as the Securityholder Representative for and on behalf of the Securityholders to take all actions under this Agreement that are to be taken by the Securityholder Representative, including to amend this Agreement, to waive any provision of this Agreement, to negotiate payments due pursuant to this Article IX, to give and receive notices and communications, to authorize payment to any Buyer Indemnified Person from the Indemnity Escrow Fund in satisfaction of claims by any Buyer Indemnified Person, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Buyer Indemnified Person against any of the Securityholders or by any of the Securityholders against any Buyer Indemnified Person or any dispute between any Buyer Indemnified Person and any of the Securityholders, in each case relating to this Agreement or the transactions contemplated in this Agreement, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Securityholders from time to time upon not less than thirty (30) days prior written notice to CryoLife, Parent and Buyer; provided, however, that the Securityholder Representative may not be removed unless Securityholders representing the holders of at least a two-thirds interest of the Indemnity Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Securityholder Representative may be filled by the Securityholders representing the holders of a majority in interest of the Indemnity Escrow Fund. In the event a vacancy in the position of Securityholder Representative exists for thirty (30) or more days or Securityholder Representative breaches or fails to perform its obligations under this Agreement (after a 30 calendar day advance notice period to cure, which period shall not apply in exigent circumstances), CryoLife, Parent and Buyer shall have the right to petition a court of competent jurisdiction to appoint a replacement Securityholder Representative, and Securityholder Representative shall not receive any compensation for its services from CryoLife, Parent, Buyer or the Company. No bond shall be required of the Securityholder Representative. Notices or communications to or from the Securityholder Representative shall constitute notice to or from the Securityholders.
(b) Each of the Securityholders represents and warrants to CryoLife, Parent and Buyer that the Securityholder Representative has the irrevocable right, power and authority (i) to enter into and perform this Agreement and to bind each of the Securityholders to its terms, (ii) to give and receive directions and notices hereunder and (iii) to make all determinations that may be required or that it deems appropriate under this Agreement.
(c) Until notified in writing by the Securityholder Representative that it has resigned, or that it has been removed by at least two-thirds in interest of the Indemnity Escrow Fund, CryoLife, Parent, Buyer and the Escrow Agent may rely conclusively and act upon the directions, instructions and notices of the Securityholder Representative named above and, thereafter, upon the directions, instructions and notices of any successor named in a writing executed by a majority-in-interest of the Indemnity Escrow Fund filed with the Escrow Agent or a successor appointed by a court of competent jurisdiction.
(d) The Securityholders each hereby authorize the Securityholder Representative to:
(i) Receive all notices or documents given or to be given to the Securityholders pursuant hereto or in connection herewith and to receive and accept service of legal process and file pleadings on behalf of each Equity Holder the Securityholders in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative any suit or proceeding arising under this Agreement; provided, however, that the Securityholders acknowledge and agree that even if Securityholder Representative is unable, unwilling, refuses, resists or objects to receiving notice or receiving or accepting service of process, notice to and service of process with respect to each of the Securityholders shall have no obligation be effective if made pursuant to the Equity Holders to act, except as expressly provided hereinSection 11.1;
(ii) Engage counsel, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power such accountants and authority to:
(i) execute other advisors and deliver on behalf of the Equity Holders incur such waivers and consents other expenses in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and therebyin this Agreement as the Securityholder Representative may in its sole discretion deem appropriate; and
(iii) Take such action as the Securityholder Representative may in its sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of CryoLife, including any amendments Parent or modifications to Buyer contained in this Agreement or in any document delivered by Buyer pursuant hereto; (B) taking such other action as the other Transaction AgreementsSecurityholder Representative is authorized to take under this Agreement; (C) receiving all documents or certificates and making all determinations, in each case its capacity as Securityholder Representative, required under this Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated in this Agreement, including the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article IX and any waiver of any obligation of Buyer.
(e) A decision, act, consent or instruction of the Securityholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Securityholders and shall be final, binding and conclusive upon the Securityholders; and the Escrow Agent and CryoLife, Parent and Buyer may rely upon any such decision, act, consent or instruction of the Securityholder Representative as being the decision, act, consent or instruction of the Securityholders. The Escrow Agent and CryoLife, Parent and Buyer are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Securityholder Representative.
(f) The Securityholders shall indemnify, defend and hold harmless the Securityholder Representative and its directors, officers, agents and employees from and against any and all Losses arising out of or in connection with the Securityholder Representative’s execution and performance of this Agreement, or otherwise in connection with acting as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes each case as such Losses are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Timeincurred. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any Any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, Losses shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) The grant of authority provided for herein recovered (i) is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of first from any Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any distribution of the Equity Holders arising out of or related Indemnity Escrow Fund, but only if and when required to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed distributed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any timeSecurityholders, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, Agreement at the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution time of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder distribution in accordance with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred written instructions delivered by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that Escrow Agent (the Securityholder Representative shall be entitled to engage such counsel“Distributable Funds”), experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representativeii) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi)secondly, by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification directly from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs Securityholders severally and expenses of investigation not jointly and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms hereinPro Rata Portion.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacity.
Appears in 1 contract
Securityholder Representative. (a) Pursuant to the adoption of this Agreement by Company Common Stockholders representing greater than 50% Each of the outstanding shares of Company Common StockIndemnifying Persons hereby appoints Saran Saund, each Equity Holder will be deemed to have irrevocably appointed, authorized and empowered the Securityholder Representative to act as a representative for the benefit of each Equity Holder as the exclusive its agent and attorney-in-fact with the power and authority to act on behalf of each Equity Holder in connection with the Mergerfact, which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority to:
(i) execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following Indemnifying Persons to give and receive notices and communications, to authorize settlements from the First Tranche Closing Share Amount and Second Tranche Closing Share Amount in satisfaction of Losses incurred by Parent Indemnified Parties, to provide the Notice of Disagreement with respect to the calculation of Working Capital and to resolve disputes with respect thereto, to object to claims for indemnification, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholder Representative for the accomplishment of the foregoing or (ii) specifically mandated or allowed by the terms of this Agreement. Such agency may be changed by the holders of a majority of the shares of Common Stock at the Effective Time, from time to time upon not less than five days’ prior written notice to Parent. A vacancy in the position of Securityholder Representative may be filled by the holders of a majority of the shares of Common Stock at the Effective Time. Without limiting the generality No bond shall be required of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriateRepresentative, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder Representative shall not have receive any obligation compensation for its services. Notices or communications to take any such actions, and shall not have any liability for any failure to take any such actions);
(iii) refrain or from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement Representatives’ shall constitute notice to or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f))Securityholders.
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist not be liable for any act done or otherwise be unable to fulfill its responsibilities omitted hereunder as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative while acting in good faith and in the exercise of the Equity Holders hereunderreasonable judgment. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders The Indemnifying Persons shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as indemnify the Securityholder Representative and that hold the Securityholder Representative shall be under no obligation to take harmless against any action in its capacity as the Securityholder Representativeloss, unless the Securityholder Representative has been provided with funds, security liability or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be expense incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of without bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance connection with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as acceptance or administration of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Securityholder Representative.
(c) A decision, act, consent or instruction of the Equity Holders Securityholder Representative, shall constitute a decision of the Indemnifying Persons and that shall be final, binding and conclusive upon the Indemnifying Persons and Parent may rely upon any such decision, act, consent or instruction of the Securityholder Representative shall have no personal responsibility as being the decision, act, consent or instruction of the Indemnifying Persons. Parent is hereby relieved from any liability to any person for any expensesacts done by them in accordance with such decision, costs act, consent or other liabilities incurred by it in such capacityinstruction of the Securityholder Representative.
Appears in 1 contract
Securityholder Representative. (a) Pursuant to Immediately upon the adoption approval of this Agreement by the Company Common Stockholders representing greater than 50% of the outstanding shares of Company Common StockHolder Approval, each Equity Holder will shall be deemed to have irrevocably appointed, authorized and empowered consented to the Securityholder appointment of Shareholder Representative to act as a representative for the benefit of each Equity Holder Services LLC as the exclusive agent Holders’, Optionholders’ and Warrantholder’s representative and attorney-in-fact (the “Securityholder Representative”), with the full power and authority of substitution to act on behalf of each Equity Holder in connection with the MergerHolders, which shall include the power Optionholders and authority as is necessary to carry out the functions assigned Warrantholder to the Securityholder Representative under extent and in the manner set forth in this Agreement and the Escrow Agreement; provided. All decisions, howeveractions, that consents and instructions by the Securityholder Representative shall be binding upon all of the Holders, Optionholders and Warrantholder and no such Person shall have no obligation the right to object to, dissent from, protest or otherwise contest any such decision, action, consent or instruction. The Parent and Merger Sub shall be entitled to rely on any decision, action, consent or instruction of the Securityholder Representative as being the decision, action, consent or instruction of the Holders, Optionholders and Warrantholder, and the Parent and Merger Sub are hereby relieved from any liability to any Person for acts done by them in accordance with any such decision, act, consent or instruction. Notwithstanding anything in this Section 2.15 to the Equity Holders to actcontrary, except as expressly provided hereinunless Holders, Optionholders and without limiting the generality Warrantholder holding a majority of the foregoingaggregate Fully Diluted Share Number as of the Effective Time (the “Majority Holders”) shall have notified Parent and the Securityholder Representative in writing to the contrary, the Securityholder Representative shall have not be empowered or authorized to act as the power Holders’, Optionholders’ or Warrantholder’s agent or attorney-in-fact with respect to any claim for indemnification made pursuant to Article VIII to the extent such claim seeks recovery from the Holders, Optionholders and authority to:Warrantholder directly.
(ib) execute The Securityholder Representative may resign at any time, and deliver on behalf may be removed for any reason or no reason by the vote or written consent of the Equity Holders such waivers and consents in connection with this Agreement and Majority Holders. In the other Transaction Agreements and the consummation event of the Merger and other transactions contemplated hereby and therebydeath, including any amendments incapacity, resignation or modifications to this Agreement or the other Transaction Agreements, in each case as removal of the Securityholder Representative, in its sole discretion, may deem necessary a new Securityholder Representative shall be appointed by the vote or desirable;
(ii) enforce and protect the rights and interests written consent of the Equity Holders following the Effective Time and to enforce and protect the rights and interests Majority Holders. Notice of such vote or a copy of the written consent appointing such new Securityholder Representative arising out of or under or in any manner relating shall be sent to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or thereinParent and, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following after the Effective Time. Without limiting , to the generality Surviving Corporation, such appointment to be effective upon the later of the foregoingdate indicated in such consent or the date such consent is received by the Parent and, following after the Effective Time, the Surviving Corporation; provided that until such notice is received, the Parent, Merger Sub and the Surviving Corporation, as applicable, shall be entitled to rely on the decisions, actions, consents and instructions of the prior Securityholder Representative as described in Section 2.15(a). The Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated charge a reasonable fee for its services; provided that all fees and expenses incurred by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or in performing its duties hereunder (including legal fees and expenses related thereto) (other than the Securityholder Representative’s engagement fee) and any indemnification in favor of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder Representative shall not have any obligation to take any such actionsbe borne by the Holders, Optionholders and Warrantholder.
(c) The Securityholder Representative shall not have any liability for any failure be liable to take any such actions);
(iii) refrain from enforcing any right of the Equity Holders, arising out of Optionholders and Warrantholder for actions taken or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or omitted in connection with this Agreement or the other Transaction Agreements Escrow Agreement, except to the extent such actions shall have been finally determined by a court of competent jurisdiction to have constituted willful misconduct or on behalf fraud. Except in cases where a court of competent jurisdiction has made such a finding, the Equity Holders, including to satisfy costsOptionholders and Warrantholder shall jointly and severally indemnify, expenses or liabilities of defend and hold harmless the Securityholder Representative from and against any and all losses, liabilities, claims, penalties, fines, forfeitures, actions, damages, costs and expenses, including reasonable attorneys’ fees (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) and disbursements (collectively, “Representative Losses”), arising out of and in connection with matters related to its activities as Securityholder Representative under this Agreement, the Escrow Agreement or otherwise, in each case as such Representative Losses are suffered or incurred. If not paid directly to the other Transaction Agreements Securityholder Representative by the Holders, Optionholders and Warrantholder, any such Representative Losses may be recovered by the Securityholder Representative (providedi) first by distribution of the Expense Fund pursuant to the terms and conditions of the Escrow Agreement and (ii) after the exhaustion of the amounts in the Expense Fund, thatfrom the amounts in the Escrow Fund, no but only at such coststime as such amounts in the Escrow Fund are otherwise distributable to the Holders, expenses or liabilities shall Optionholders and Warrantholder pursuant to the terms hereof and the Escrow Agreement because all claims for indemnification hereunder against such amounts have been fully resolved, in accordance with written instructions delivered by the Securityholder Representative to the Escrow Agent; provided that while this Section 2.15(c) allows the Securityholder Representative to be paid from the Expense Fund and the Escrow Account other than when Fund, this does not relieve the Holders, Optionholders and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken Warrantholder from their obligation to promptly pay such Representative Losses as such Representative Losses are suffered or omitted to be taken by incurred, nor does it prevent the Securityholder Representative pursuant from seeking any remedies available to this Agreement and the other Transaction Agreements, all of which actions it at law or omissions shall be legally binding upon the Equity Holders.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreementsotherwise.
(d) All actions taken by the The Securityholder Representative under this Agreement shall have reasonable access to information about the Surviving Corporation and the other Transaction Agreements shall be binding upon all Equity Holders reasonable assistance of the Company’s former officers and their respective successors employees for purposes of performing its duties and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice toexercising its rights hereunder; provided, and deal exclusively withthat, the Securityholder Representative with respect to any shall treat confidentially and all matters concerning any of the Equity Holders arising out of not use or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to disclose the terms of this AgreementAgreement or any nonpublic information from or about the Surviving Corporation to anyone (except to the Holders, Optionholders or Warrantholder or the other Transaction Agreements and Securityholder Representative’s employees, attorneys, accountants, advisors or authorized representatives on a need to know basis, in each case who agree to treat such information confidentially); provided, however, that neither Parent nor the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, Surviving Corporation shall be fully binding on themobligated to provide such access or information if it determines, in its reasonable judgment, that doing so would jeopardize the protection of attorney-client privilege. The Securityholder Representative shall enter into a separate customary confidentiality agreement (which shall contain the exceptions listed in the preceding parenthetical) prior to being provided access to such information if reasonably requested by Parent.
(e) By the execution The approval of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred this Agreement by the Securityholder Representative in responding Company Holder Approval shall also be deemed to such direction or taking such action. By constitute approval of all arrangements relating to the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that transactions contemplated hereby and to the Securityholder Representative shall be entitled to engage such counselprovisions hereof binding upon the Holders, experts Optionholders and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct)Warrantholder, including the costs representations and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative warranties included in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration 3.24 and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms hereincovenants and agreements included in Section 5.15 and Section 8.2.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacity.
Appears in 1 contract
Sources: Merger Agreement (AOL Inc.)
Securityholder Representative. (a) Pursuant to the adoption of this Agreement by Company Common Stockholders representing greater than 50% Fortis Advisors LLC is hereby appointed as of the outstanding shares of Company Common Stock, each Equity Holder will be deemed to have irrevocably appointed, authorized and empowered the Securityholder Representative to act as a representative for the benefit of each Equity Holder date hereof as the exclusive agent and attorney-in-attorney in fact with of the power Company Securityholders as the Securityholder Representative for and authority to act on behalf of each Equity Holder the Company Securityholders to give and receive notices and communications in connection with this Agreement and related matters, including in connection with claims for indemnification under this Article IX and to agree to, negotiate, and enter into settlements, adjustments and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims, and to take all other actions that are either (i) necessary or appropriate in the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to judgment of the Securityholder Representative under for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement; provided. Notwithstanding the foregoing, however, that the Securityholder Representative shall have no obligation to act on behalf of the Equity Holders to actCompany Securityholders, except as expressly provided hereinherein and in the Escrow Agreement, and without limiting the generality for purposes of clarity, there are no obligations of the foregoingSecurityholder Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedule. Such agency may be changed by the Company Securityholders from time to time upon not less than ten (10) days prior written notice to Parent; provided, that the Securityholder Representative may not be removed unless a majority of the Company Securityholders (as determined by the respective Indemnity Pro Rata Shares) agree in writing to such removal and to the identity of the substituted agent. A vacancy in the position of the Securityholder Representative may be filled by a majority of the Company Securityholders (as determined by the respective Indemnity Pro Rata Shares). The immunities and rights to indemnification shall survive the resignation or removal of Securityholder Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required of the Securityholder Representative. Notices or communications to or from the Securityholder Representative shall have constitute notice to or from the power and authority to:Company Securityholders.
(ib) execute and deliver on behalf of Certain Company Securityholders have entered into a letter agreement with the Equity Holders such waivers and consents Securityholder Representative to provide direction to the Securityholder Representative in connection with the performance of its services under this Agreement and the other Transaction Agreements Escrow Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholder Representative (together with its members, managers, directors, officers, contractors, agents and the consummation employees) nor any member of the Merger Advisory Group (collectively, the “Securityholder Representative Group”), shall be liable for any act done or omitted hereunder, under the Escrow Agreement or under any Securityholder Representative engagement agreement as the Securityholder Representative while acting in good faith and other transactions contemplated hereby in the exercise of reasonable judgment. The Company Securityholders shall indemnify and therebydefend the Securityholder Representative Group and hold the Securityholder Representative Group harmless against any Liability, losses, claims, damages, fees, costs, expenses (including fees, disbursements and costs of any skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement incurred without negligence, willful misconduct or bad faith on the part of the Securityholder Representative Group and arising out of or in connection with the acceptance or administration of the Securityholder Representative Group’s duties hereunder under the Escrow Agreement or under any Securityholder Representative engagement agreement, including the reasonable fees and expenses of any amendments or modifications to this Agreement or legal counsel retained by the other Transaction Agreements, in each case as Securityholder Representative (“Securityholder Representative Expense”). Any such Securityholder Representative Expenses may be recovered at the election of the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
at any time from: (i) the Expense Fund; (ii) enforce and protect the rights and interests of Escrow Fund, at such time as remaining amounts would otherwise be distributable to the Equity Indemnifying Holders following the Effective Time and to enforce and protect the rights and interests extent any funds remain in such fund; or (iii) from the Indemnifying Holders directly according to the Indemnity Pro Rata Share of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Timeeach Indemnifying Holder. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood The Company Securityholders acknowledge that the Securityholder Representative shall not have be required to expend or risk its own funds or otherwise incur any obligation to take financial liability in the exercise or performance of any such actionsof its powers, and shall not have any liability for any failure to take any such actions);rights, duties or privileges or administration of its duties.
(iiic) refrain from enforcing any right By virtue of the Equity Holdersapproval of the Merger and this Agreement by the Company Securityholders and without any further action of any of the Company Securityholders or the Company, arising out of or each Company Securityholder: (i) agrees that all actions taken by the Securityholder Representative under or in any manner relating to this Agreement or the other documents contemplated hereby; providedEscrow Agreement shall be binding upon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, howeverand (ii) waives any and all defenses which may be available to contest, that no such failure to act on negate or disaffirm the part action of the Securityholder Representative taken in good faith under this Agreement or the Escrow Agreement. A decision, act, consent or instruction of the Securityholder Representative, except as otherwise provided in including an amendment, extension or waiver of this Agreement or the other Transaction Agreementspursuant to Sections 10.3 and 10.4 hereof, shall constitute a decision of all the Company Securityholders and shall be deemed a waiver of any such right or interest by final, binding and conclusive upon the Indemnifying Parties. The powers, immunities and rights to indemnification granted to the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) The grant of authority provided for herein Advisory Group hereunder: (i) is are coupled with an interest and shall be irrevocable and survive the death, incompetencyincompetence, bankruptcy or liquidation of the respective Company Securityholder and shall be binding on any Equity Holder successor thereto, and (ii) shall survive the Merger and delivery of an assignment by any Company Securityholder of the consummation whole or any fraction of other transactions contemplated hereby and by his, her or its interest in the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of themEscrow Fund. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be is entitled to rely conclusively (without further evidence of upon any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by such decision, act, consent or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations instruction of the Securityholder Representative as representative being the decision, act, consent or instruction of all the Equity Holders hereunderCompany Securityholders. If Parent is hereby relieved from any Liability to any Person for any reason there is no Securityholder Representative at any timeacts done by it in accordance with such decision, all references herein act, consent or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf instruction of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the The Securityholder Representative shall be entitled to: (i) rely upon the Spreadsheet, (ii) rely upon any signature believed by it to engage such counselbe genuine, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith iii) reasonably assume that a signatory has proper authorization to sign on the part behalf of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the applicable Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs Securityholders or other liabilities incurred by it in such capacityparty.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Millennial Media Inc.)
Securityholder Representative. (a) Pursuant to Shareholder Representative Services LLC has been designated as the adoption of this Agreement by Company Common Stockholders representing greater than 50% representative of the outstanding shares of Company Common Stock, each Equity Holder will be deemed to have irrevocably appointed, authorized Securityholders and empowered the Securityholder Representative to act as a representative for the benefit of each Equity Holder as the exclusive agent and their attorney-in-fact (the “Securityholder Representative”), with the full power and authority of substitution to act on behalf of each Equity Holder the Securityholders (only with respect to their interests as Securityholders) to the extent and in connection the manner set forth in this Agreement and the Escrow Agreement but not with respect to any amendments to this Agreement or the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to Escrow Agreement. The Company has designated the Securityholder Representative under as the representative of the Securityholders for purposes of this Agreement and the Escrow Agreement; provided, howeverand approval of this Agreement and the Merger by such holders shall constitute ratification and approval of such designation on the terms set forth herein. All decisions, that actions, consents and instructions by the Securityholder Representative with respect to this Agreement and the Escrow Agreement (but not with respect to any amendments hereto or thereto) shall be binding upon all of the Securityholders with respect to their interests as Securityholders, and no such Securityholder shall have no obligation the right to object to, dissent from, protest or otherwise contest the Equity Holders same. The Surviving Corporation and the Acquiror shall be entitled to conclusively rely upon, without independent inquiry, verification or investigation, any such decision, action, consent or instruction of the Securityholder Representative as being the decision, action, consent or instruction of the Securityholders, and the Acquiror and Merger Sub are hereby relieved from any liability to any Person for acts done by them in accordance with any such decision, act, except consent or instruction.
(b) By way of amplification and not limitation, as expressly provided herein, and without limiting the generality of the foregoingSecurityholder Representative, the Securityholder Representative shall have the power be authorized and authority to:
empowered, as agent of and on behalf of all Securityholders (only with respect to their interests as Securityholders): (i) execute to give and deliver receive notices and communications as provided herein, to object to any Acquiror Indemnification Claims; (ii) to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims or Losses; (iii) to waive after the Effective Time any breach or default of the Acquiror or Merger Sub of any obligation to be performed by it under this Agreement; (iv) to receive service of process on behalf of the Equity Holders each Securityholder in connection with any claims against such waivers and consents Securityholders arising under or in connection with this Agreement and the other Transaction Agreements and the consummation Agreement, any document or instrument provided for hereby or any of the Merger and other transactions contemplated hereby or under the Escrow Agreement; and thereby(v) to take all other actions that are either (A) necessary or appropriate in the judgment of the Securityholder Representative for the accomplishment of the foregoing or (B) specifically mandated by the terms of this Agreement. Notices or communications to or from the Securityholder Representative shall constitute notice to or from the Securityholders.
(c) The Securityholder Representative may resign at any time, including any amendments or modifications to this Agreement or and in the other Transaction Agreements, in each case as event of the resignation of the Securityholder Representative, in its sole discretion, may deem necessary a new Securityholder Representative shall be appointed by the vote or desirable;
(ii) enforce and protect the rights and interests written consent of the Equity Holders following the Effective Time and to enforce and protect the rights and interests holders of at least seventy-three percent (73%) of the Securityholder Representative arising out Senior Preferred Stock outstanding as of or under or in any manner relating immediately prior to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time, voting together on an as-converted basis (a “Senior Preferred Supermajority”). Without limiting the generality Notice of such vote or a copy of the foregoingwritten consent appointing such new Securityholder Representative shall be sent to the Acquiror and, following after the Effective Time, to the Surviving Corporation, such appointment to be effective upon the later of the date indicated in such consent and the date such consent is received by the Acquiror and, after the Effective Time, the Surviving Corporation; provided that until such notice is received, the Acquiror, Merger Sub and the Surviving Corporation, as applicable, shall be entitled to rely on the decisions, actions, consents and instructions of the prior Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated as described in Section 2.12(a). All fees and expenses incurred by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative in performing its duties hereunder (including legal fees and expenses related thereto) and any indemnification in favor of the Securityholder Representative shall be borne by the Securityholders (other than holders of Dissenting Shares) pro rata in accordance with their respective Escrow Percentages.
(d) In dealing with this Agreement and any notice, instrument, agreement or document relating thereto, and in exercising or failing to exercise all or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that powers conferred upon the Securityholder Representative hereunder or thereunder, (i) the Securityholder Representative and its agents, counsel, accountants and other representatives shall not have any obligation to take any such actionsassume any, and shall not have incur any, responsibility or liability whatsoever (in each case, to the extent permitted by applicable Law), to any liability for any failure to take any such actions);
(iii) refrain from enforcing any right of Securityholder, the Equity HoldersAcquiror, arising out of or under or in any manner relating to this Agreement the Company, Merger Sub or the other documents contemplated hereby; providedSurviving Corporation, howeverincluding, that no such failure to act on the part of the Securityholder Representativewithout limitation, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver by reason of any such right error in judgment or interest by the Securityholder Representative other act or by the Equity Holders unless such waiver is in writing signed by the waiving party omission performed or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under omitted hereunder or in connection with this Agreement or any such other agreement, instrument or document, except to the other Transaction Agreements extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence, willful misconduct or on behalf of the Equity Holdersfraud, including to satisfy costs, expenses or liabilities of and (ii) the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from entitled to rely in good faith on the Escrow Account advice of counsel, public accountants or other than when independent experts experienced in the matter at issue, and if expressly permitted any error in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken judgment or omitted to be taken by other act or omission of the Securityholder Representative pursuant to such advice shall in no event subject the Securityholder Representative to liability to any Securityholder of the Company, the Acquiror, the Company, Merger Sub or the Surviving Corporation. The Securityholders shall, on a pro rata basis (based on each such Securityholder’s Escrow Percentage), indemnify and hold harmless the Securityholder Representative from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements (collectively, “Representative Losses”), arising out of and in connection with its activities as the Securityholder Representative under this Agreement, the Escrow Agreement or otherwise, in each case, as such Representative Loss is incurred or suffered; provided, that to the extent it is finally adjudicated that a Representative Loss or any portion thereof was caused by the gross negligence, willful misconduct or fraud of the Securityholder Representative, the Securityholders will not be required to so indemnify the Securityholder Representative with respect to such Representative Loss or portion thereof and the other Transaction AgreementsSecurityholder Representative will reimburse the Securityholders the amount of such Representative Loss to the extent already indemnified. If not paid directly to the Securityholder Representative by the Securityholders, all any such Representative Losses may be recovered by the Securityholder Representative from (x) the funds in the Securityholders’ Expense Amount and (y) if (and only if) the Securityholders’ Expense Amount has been exhausted, the amounts in the Escrow Fund otherwise distributable to the Securityholders pursuant to the terms hereof and the Escrow Agreement at the time of which actions distribution in accordance with written instructions delivered by the Securityholder Representative to the Escrow Agent; provided, that while this Section 2.12 allows the Securityholder Representative to be paid from the Securityholders’ Expense Amount and the Escrow Fund, the Securityholders shall not be relieved from their obligation to promptly pay such Representative Losses as such Representative Losses are suffered or omissions incurred, nor shall the Securityholder Representative be legally binding upon the Equity Holdersprevented from seeking any remedies available to it at law or otherwise.
(ce) The grant of authority provided for herein in this Section 2.12 (i) is coupled with an interest and is being granted, in part, as an inducement to the Acquiror and Merger Sub to enter into this Agreement and the Escrow Agreement, and shall be irrevocable and survive the dissolution, liquidation or bankruptcy of the Company or the death, incompetency, liquidation or bankruptcy or liquidation of any Equity Holder Securityholders, shall be binding on any successor thereto and (ii) shall survive the Merger and assignment by any Securityholders of the consummation whole or any portion of other transactions contemplated hereby and by his interest in the other Transaction AgreementsEscrow Fund.
(df) In connection with the performance of its obligations hereunder, the Securityholder Representative shall have the right, at any time and from time to time to select and engage, at the cost and expense of the Securityholders (as contemplated by Section 2.12(c)), attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as it may deem necessary or desirable and incur other out-of-pocket expenses related to performing its services hereunder.
(g) All actions taken by of the rights, immunities and powers granted to the Securityholder Representative under this Agreement with respect to this Agreement and the other Transaction Agreements Escrow Agreement shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each survive the Closing and/or any termination of them. Parent shall serve this Agreement.
(h) Following the delivery of a notice to, and deal exclusively withof an Acquiror Indemnification Claim (a “Claim Notice”), the Securityholder Representative with respect and its representatives and agents shall be given all such access (including electronic access, to the extent available) as they may reasonably require to the books and records of the Surviving Corporation and access to such personnel or representatives of the Surviving Corporation and Acquiror, including but not limited to the individuals responsible for the matters that are the subject of the Claim Notice, as they may reasonably require for the purposes of investigating or resolving any disputes or responding to any and all matters concerning any of or inquiries raised in the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities whichClaim Notice, in the sole determination of Securityholder Representativeeach case, are sufficient during regular business hours and subject to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately reasonable prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms hereinnotice.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacity.
Appears in 1 contract
Sources: Merger Agreement (Kenexa Corp)
Securityholder Representative. (a) Pursuant to the adoption of By approving this Agreement and the transactions contemplated hereby or by Company Common Stockholders representing greater than 50% executing and delivering a Letter of the outstanding shares of Company Common StockTransmittal, each Equity Holder will be deemed to Company Securityholder shall have irrevocably appointed, authorized and empowered the appointed Securityholder Representative to act as a such Person's representative for the benefit of each Equity Holder as the exclusive agent and attorney-in-fact with the power and authority to act on behalf of such Person for all purposes in connection with this Agreement, the Ancillary Agreements and the agreements ancillary hereto and thereto. The Securityholder Representative shall act as the representative of the Company Securityholders in respect of all matters arising under this Agreement, the Ancillary Agreements and the agreements ancillary hereto and thereto, and shall be authorized to act, or refrain from acting, with respect to any actions to be taken by or on behalf of the Company Securityholders or the Securityholder Representative, including to enforce any rights granted to the Company Securityholders hereunder and thereunder, in each Equity Holder case as the Securityholder Representative believes is necessary or appropriate under this Agreement, the Ancillary Agreements and/or the agreements ancillary hereto and thereto, for and on behalf of the Company Securityholders. The Company Securityholders shall be bound by all such actions taken by the Securityholder Representative and the Company Securityholders shall not be permitted to take any such actions.
(b) The Securityholder Representative is serving as the Securityholder Representative solely for purposes of administrative convenience, and is not personally liable for any of the obligations of the Company, any of its Subsidiaries or the Company Securityholders hereunder, and Goldenstone (on behalf of itself and its Affiliates) agrees that it will not look to the Securityholder Representative or the underlying assets of the Securityholder Representative for the satisfaction of any obligations of the Company, any of its Subsidiaries or the Company Securityholders. The Securityholder Representative shall not be liable for any error of judgment, or any action taken, suffered or omitted to be taken, in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to performance by the Securityholder Representative of the Securityholder Representative’s duties or the exercise by the Securityholder Representative of the Securityholder Representative’s rights and remedies under this Agreement; provided, howeverany Ancillary Agreement or any agreement ancillary hereto or thereto, that except in the case of its intentional fraud or willful misconduct. No bond shall be required of the Securityholder Representative. The Securityholder Representative may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Securityholder Representative shall not have no obligation any duty to ascertain or to inquire as to the Equity Holders to actperformance or observance of any of the terms, except as expressly provided herein, and without covenants or conditions of this Agreement or any Ancillary Agreement or any agreement ancillary hereto or thereto. Without limiting the generality of the foregoing, the Securityholder Representative shall have the full power and authority to:
(i) execute to interpret all the terms and deliver provisions of this Agreement and the Ancillary Agreements or any agreement ancillary hereto or thereto, and to consent to any amendment hereof or thereof on behalf of the Equity Holders such waivers Company Securityholders and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holderstheir respective successors.
(c) The grant Securityholder Representative may resign at any time by giving twenty (20) days’ notice to Goldenstone and the Company Securityholders; provided, however, in the event of authority provided for herein the resignation or removal of the Securityholder Representative, a new Securityholder Representative (iwho shall be reasonably acceptable to Goldenstone) shall be appointed by the vote or written consent of a majority of the shares of Goldenstone Common Stock, voting together as a single class (with each such share entitled to one vote), then held by the Company Securityholders as of immediately prior to the Effective Time.
(d) The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy by Company Securityholders in any manner or liquidation of for any Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of themreason. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect This authority granted to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resignnot be affected by the death, dissolveillness, cease dissolution, disability, incapacity or other inability to exist or otherwise be unable act of any principal pursuant to fulfill its responsibilities any applicable Law. ▇▇▇ (▇▇▇▇▇) ▇▇▇▇ hereby accepts his appointment as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successorinitial Securityholder Representative. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any timedecision, all references herein act, consent or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action instruction taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e10.11 on behalf of Company Securityholders (each, an “Securityholder Representative Authorized Action”) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) final, binding and conclusive on Company Securityholders as fully as if such Persons had taken such Securityholder Representative Authorized Action. The parties acknowledge Indemnified Party agrees that the Securityholder Representative’s obligations under this Section 10.15 are solely , as a representative of the Equity Holders and that the Securityholder Representative Representative, shall have no personal responsibility or liability to the Indemnified Party for any expenses, costs or other liabilities incurred by it in such capacityAuthorized Action.
Appears in 1 contract
Sources: Business Combination Agreement (Goldenstone Acquisition Ltd.)
Securityholder Representative. (a) Pursuant to the adoption For purposes of this Agreement by Company Common Stockholders representing greater than 50% of the outstanding shares of Company Common Stock, each Equity Holder will be deemed to have irrevocably appointed, authorized and empowered the Securityholder Representative to act as a representative for the benefit of each Equity Holder as the exclusive agent and attorney-in-fact with the power and authority to act on behalf of each Equity Holder in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority to:
(i) execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and Escrow Agreement, each Company Securityholder shall, without any further action on the consummation part of any such Company Securityholder, be deemed (by virtue of the Merger adoption and other transactions contemplated hereby and thereby, including any amendments or modifications to approval of this Agreement or and approval of the other Transaction AgreementsIntegrated Mergers) to have consented to the appointment of AHR Holdings, in each case LLC as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect as the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements attorney‑in‑fact for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any each such Action and compromise or settle on such terms as it shall determine to be appropriateCompany Securityholder, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest taking by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 actions and the making of any decisions required or permitted to take any and all action that the Securityholder Representative, in its sole and absolute discretion, may consider necessary be taken by them under or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction AgreementsDocuments, including the exercise of the power to (i) execute this Agreement, the Escrow Agreement, the other Transaction Documents and all other agreements, documents and certificates pursuant to such Contracts, including all amendments to such Contracts, and take all actions required or instruments referred permitted to herein be taken under such Contracts (provided, that the Securityholder Representative, on behalf of itself and all other Company Securityholders, may not enter into any amendment that has a disproportionate adverse impact on any Company Securityholder compared to any other Company Securityholder), (ii) authorize delivery to Parent of all or therein any portion of the Escrow Fund, in satisfaction of indemnification or executed other claims contemplated by this Agreement or as provided in connection herewith the Escrow Agreement, (iii) agree to, negotiate, enter into settlements and therewith;
compromises of and comply with Orders with respect to such indemnification or other claims, (iv) resolve any indemnification or other claims, (v) give receive and receive all forward notices and communications pursuant to be given or received by this Agreement, the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Escrow Agreement and the other Transaction AgreementsDocuments, including service of process in connection with any arbitration; and
and (vi) on behalf of take all actions necessary in the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities judgment of the Securityholder Representative in connection with matters related to for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement or Agreement, the Escrow Agreement, the other Transaction Agreements (providedDocuments and any other agreements, thatdocuments and certificates thereto. The Company Securityholders shall cooperate with the Securityholder Representative and any accountants, no such costsattorneys or other agents whom the Securityholder Representative may retain to assist in carrying out the Securityholder Representative’s duties hereunder. AHR Holdings, expenses or liabilities shall be paid from LLC hereby accepts its appointment as the Securityholder Representative. The Securityholder Representative is authorized by each Company Securityholder by virtue of the adoption and approval of this Agreement and approval of the Integrated Mergers to act on its behalf as required hereunder under the Escrow Account Agreement and the other than when Transaction Documents. At any time during the term of the Escrow Agreement, the Company Securityholders entitled to a majority in interest of the Escrow Fund can appoint a new Securityholder Representative by written consent by sending notice and if expressly permitted a copy of the duly executed written consent appointing such new Securityholder Representative to Parent and the Escrow Agent. Such appointment will be effective upon the later of the date indicated in accordance with Section 3.6(e) the consent or the date such consent is received by Parent and Section 3.6(f))the Escrow Agent.
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties Parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 Article VIII are solely as a representative of the Equity Holders Company Securityholders with respect to the obligations to indemnify the Parent Indemnified Persons under this Article VIII and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities expenses incurred by it in such capacitycapacity and that all payments to the Parent Indemnified Persons as a result of such indemnification obligations shall be made solely in accordance with this Article VIII.
(c) All decisions, actions, consents and instructions of the Securityholder Representative shall be final and binding upon all the Company Securityholders and no Company Securityholder shall have any right to object, dissent, protest or otherwise contest the same, except for fraud, bad faith or willful misconduct. Neither the Securityholder Representative nor any agent employed by the Securityholder Representative shall incur any Liability to any Company Securityholder relating to the performance of its duties hereunder except for actions or omissions constituting fraud, bad faith or willful misconduct. The Securityholder Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Securityholder, except in respect of amounts actually received on behalf of such Company Securityholder. The Securityholder Representative, in its capacity as such, shall not be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement.
(d) The provisions of this Section 8.11 shall in no way impose any obligations on Parent, Merger Sub, Successor Sub or the Surviving Entity. In particular, notwithstanding any notice received by Parent, Merger Sub, Successor Sub, or the Surviving Entity to the contrary, Parent, Merger Sub, Successor Sub and the Surviving Entity (i) shall be fully protected in relying upon and shall be entitled to rely upon, shall have no Liability to the Company Securityholders with respect to, actions, omissions to act, decisions and determinations of the Securityholder Representative, (ii) shall be entitled to assume that all actions, omissions to act, decisions and determinations of the Securityholder Representative are fully authorized by all of the Company Securityholders and (iii) shall be entitled to deal exclusively with the Securityholder Representative 65 on all matters relating to this Agreement, the Escrow Agreement and the other Transaction Documents. Each Letter of Transmittal will contain a provision authorizing the Securityholder Representative to act on behalf of the Company Securityholder signing such Letter of Transmittal for all matters arising under this Agreement, the Escrow Agreement and the other Transaction Documents and will contain the provisions set forth in this Section 8.11. All deliveries made by Parent, Merger Sub, Successor Sub or the Surviving Entity to the Securityholder Representative or at the direction of the Securityholder Representative shall be made on behalf of the Company Securityholders and shall constitute full performance of the delivery obligations of Parent, Merger Sub, Successor Sub or Surviving Entity hereunder under the Escrow Agreement or the other Transaction Documents. None of Parent, Merger Sub, Successor Sub or the Surviving Entity shall be liable for allocation of particular deliveries and payments of such amounts at the direction of the Securityholder Representative.
(e) The Representative Expense Fund will be delivered at the Closing to the Securityholder Representative to be held in trust as a source of reimbursement as provided in this Agreement and for costs and out‑of‑pocket expenses (including Taxes and costs of professional advisers) incurred by the Securityholder Representative for its obligations in connection with this Agreement and the Escrow Agreement, with any balance of the Representative Expense Fund not incurred for such purposes, to be distributed to the Company Securityholders in accordance with their respective Pro Rata Shares.
Appears in 1 contract
Securityholder Representative. (a) Pursuant to By voting in favor of the adoption of this Agreement by Company Common Stockholders representing greater than 50% Agreement, the approval of the outstanding shares principal terms of Company Common Stockthe Mergers, and the consummation of the Mergers or participating in the Mergers and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Mergers, each Equity Holder will Securityholder shall be deemed to have irrevocably appointedapproved the designation of, authorized and empowered hereby designates, the Securityholder Representative to act as a representative for the benefit of each Equity Holder as the exclusive representative, agent and attorney-in-fact with the power for and authority to act on behalf of each Equity Holder in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority to:
(i) execute and deliver on behalf of the Equity Holders such waivers Securityholders and consents each Securityholder for all purposes in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or thereinancillary hereto, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) The grant of authority provided for herein foregoing (i) is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All agrees that all actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements or any Ancillary Agreement shall be binding upon all Equity Holders such Securityholder and their respective its successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice tosuch Securityholder, and deal exclusively with(ii) waives any and all defenses which may be available to contest, negate or disaffirm the action of the Securityholder Representative under this Agreement or the Ancillary Agreements. Without limiting the foregoing, the Securityholder Representative shall, on behalf of the Securityholders, have the authority to:
(i) take all action permitted in connection with the implementation of those provisions of this Agreement and the Ancillary Agreements that require or permit action by the Securityholder Representative;
(ii) take all action permitted in connection with the defense and/or settlement of any and all claims for which the Securityholders may be required to provide indemnification pursuant to SECTION 9 (Indemnification) hereof (including rejecting, contesting, negotiating, settling and resolving any such claims) and any claims that may be made against the Escrow Fund;
(iii) comply with Orders of courts and determinations and awards of arbitrators with respect to any claims;
(iv) review and take action with respect to Tax Returns or other Tax matters pursuant to SECTION 5;
(v) review and take action pursuant to Section 1.7(b) (Post-Closing True-Up) and 1.7(c) (Resolution of Disputes);
(vi) give and receive all matters concerning any notices and service of process required or permitted to be given or received by the Equity Holders arising out of Securityholders or related to the Securityholder Representative under this Agreement or the other Transaction Ancillary Agreements;
(vii) execute and deliver all amendments and waivers to this Agreement and the Ancillary Agreements that the Securityholder Representative deemed necessary or appropriate, whether prior to, at or after the Closing; and
(viii) take any and all other agreements such additional action or instruments refrain from doing any further act or deed as is contemplated hereby to be taken by or thereby on behalf of the Securityholders by the terms of this Agreement or of the Ancillary Agreements or as may be necessary or appropriate in the judgment of the Securityholder Representative for the accomplishment of the foregoing.
(b) After the Closing, all notices provided to and/or legal process served upon the Securityholder Representative in accordance with this Agreement or the Merger Ancillary Agreements shall be deemed to be provided to and/or served upon the Securityholders and other transactions contemplated hereby or therebyshall be conclusive and binding upon the Securityholders. All decisions, actions, agreements, and instructions by the Securityholder Representative, including any consent, waiver, or agreement between the Securityholder Representative and any Buyer Indemnitee relating to the defense or settlement of any claim for which the Securityholders may be required to provide indemnification pursuant to SECTION 9 (Indemnification) hereof, shall be conclusive and binding upon the Securityholders; and the Buyer, each other Buyer Indemnitee and the Escrow Agent shall be entitled to rely conclusively (without further evidence thereon. The Buyer, each other Buyer Indemnitee and the Escrow Agent shall have no duty to inquire into the authority of any kind whatsoever) on any document purported by person reasonably believed to be the Securityholder Representative to and no responsibility or liability for any action or omission thereof, and no party shall have been executed any cause of action against the Buyer, any other Buyer Indemnitee or the Escrow Agent for any action or omission by such party in reliance upon the instructions or on behalf decisions of any of the Equity Holders as fully binding upon them. If person reasonably believed to be the Securityholder Representative Representative.
(c) In the event that more than one Person shall resignat any time serve collectively as the Securityholder Representative, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative decisions of the Equity Holders, the Equity Holders such Persons shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders as between them and Parent of the identity of such successor. Any such successor shall succeed with respect to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or Securityholders in any other agreement or instrument contemplated hereby relation to the Securityholder Representative in which Representative, be made by majority vote; provided, however that they shall designate a single Person as “Securityholder Representative” for all purposes involving the Buyer, any other Buyer Indemnitee, or the Escrow Agent.
(d) The Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to Securityholders notwithstanding any dispute or disagreement among the Equity Holders holding a majority of the outstanding shares of Company Common StockSecurityholders. Each Equity Holder upon the execution of a Letter of TransmittalIn taking any actions as Securityholder Representative, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreementmay rely conclusively, the other Transaction Agreements and the other agreements and instruments contemplated hereby and therebywithout any further inquiry or investigation, including all actions and inactions permitted upon any certification or confirmation, oral or written, given by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken person he or omitted it reasonably believes to be taken in its capacity as the Securityholder Representative and that the authorized thereunto. The Securityholder Representative shall be under entitled to: (i) rely upon the Allocation Certificate, (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. The Securityholder Representative will incur no obligation liability of any kind with respect to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred omission by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled ’s services pursuant to conclusively rely on this Agreement and any agreements ancillary hereto, except in the opinions and advice event of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification liability directly resulting from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct). The Securityholder Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, including defend and hold harmless the Securityholder Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of investigation counsel and defense experts and their staffs and all expense of claims. The Equity Holders will indemnify document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Securityholder Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Securityholder Representative, the Securityholder Representative in accordance with will reimburse the immediately preceding sentence on a pro rata basis based on their respective equity interest Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Securityholder Representative by the Securityholders, any such Representative Losses may be recovered by the Securityholder Representative from (i) the funds in the Company as of immediately prior Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as any remaining amounts would otherwise be distributable to the Securityholders; provided, that while this section allows the Securityholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Securityholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Securityholder Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Securityholder Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Securityholder Representative or the termination of this Agreement. The Securityholder Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and/or any Ancillary Agreement to which the Securityholder Representative is a party and no implied covenants or obligations shall be read into this Agreement or any Ancillary Agreements against the Securityholder Representative.
(e) As of the Effective Time, Buyer shall cause the Paying Agent to wire to the Securityholder Representative the Expense Fund, which will be used for the purposes of paying directly, or reimbursing the Securityholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Securityholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Securityholder Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Securityholder Representative’s responsibilities, the Securityholder Representative will deliver any remaining balance of the Expense Fund to the Paying Agent for further distribution to the Securityholders. For the avoidance of doubttax purposes, the provisions Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms hereinClosing.
(f) The parties acknowledge that Securityholder Representative may resign at any time. In the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and event that the Securityholder Representative resigns from such position or is unable to continue in such position, Securityholders holding among them the rights to receive at least a majority of the Parent Common Shares then remaining in the Escrow Fund to be distributed to the Securityholders (or, if no Escrow Fund remains, representing a majority in interest of the Pro Rata Shares) (the “Majority Holders”) shall promptly appoint another representative to fill such vacancy, and such substituted representative shall be deemed to be the Securityholder Representative for all purposes of this Agreement. In the absence of such appointment, the Buyer may apply to a court of competent jurisdiction for the appointment of a successor Securityholder Representative, and the costs, expenses and reasonable attorneys’ fees incurred in connection with such proceeding shall be paid from the Expense Fund or, to the extent exhausted, the Securityholders. The Securityholder Representative may be removed at any time upon the written consent of the Majority Holders with not less than thirty (30) days’ prior written notice to the Buyer; provided, however, that a successor Securityholder Representative must be concurrently appointed and become a party to this Agreement and the Escrow Agreement. The immunities and rights to indemnification shall survive the resignation or removal of Securityholder Representative and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(g) The provisions of this Section 11.14 (including the powers, immunities and rights to indemnification granted to the Securityholder Representative hereunder): (i) are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have no personal responsibility in connection with the Transactions, (ii) shall be irrevocable and survive the death, incompetence, bankruptcy or liability liquidation of the respective Securityholder and shall be binding on any successor thereto, and (iii) 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. Remedies available at Law for any expensesbreach of the provisions of this Section 11.14 may be inadequate; therefore, costs the Buyer and each other Buyer Indemnitee shall be entitled to seek temporary and permanent injunctive relief without the necessity of proving damages or other liabilities incurred by it in posting any bond if such capacityperson brings an action or proceeding to enforce the provisions of this Section 11.14.
Appears in 1 contract
Securityholder Representative. (a) Pursuant to By virtue of the adoption of this Agreement by Company Common Stockholders representing greater than 50% and the approval of the outstanding shares Merger and the other Transactions by the Requisite Stockholder Approval and without any further action of Company Common Stockany of the Securityholders or the Company, each Equity Holder will be deemed to of the Securityholders shall have irrevocably constituted and appointed, authorized upon the Effective Time (and empowered the by its execution of this Agreement as Securityholder Representative to act as a representative for the benefit of each Equity Holder Representative, Fortis Advisors LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Securityholder Representative”), of the Securityholders receiving consideration hereunder to act in the name, place and stead of the Securityholders in connection with the power Transactions, in accordance with the terms and authority provisions of this Agreement, and to act on behalf of each Equity Holder the Securityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Securityholder Representative shall deem necessary or appropriate in connection with the Merger, which shall include the power Transactions and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Engagement Agreement; provided, however, that including the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority topower:
(i) execute and deliver to specifically bring (or decide not to bring) actions on behalf of Securityholders and Permitted Transferees to specifically enforce the Equity Holders such waivers and consents in connection with terms of this Agreement and any agreements ancillary hereto or for damages for breaches hereof or thereof, including, but not limited to, the other Transaction Agreements and the consummation provisions of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirableSection 6.03;
(ii) enforce and protect to act for the rights and interests of Securityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the Equity Holders following the Effective Time and power to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in compromise any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and indemnity claim on behalf of the Equity Holders following the Effective Time. Without limiting the generality Securityholders and to transact matters of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim litigation or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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)Proceedings;
(iii) refrain from enforcing any right of the Equity Holdersto execute and deliver all amendments, arising out of or under or in any manner relating to this Agreement or the other waivers, ancillary agreements, stock powers, certificates and documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative deems necessary or by appropriate in connection with the Equity Holders unless such waiver is in writing signed by consummation of the waiving party or by the Securityholder RepresentativeTransactions;
(iv) on behalf of the Equity Holders, make, execute, acknowledge to execute and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters amendments and other writings, and, in general, waivers to do any and all things and to take any and all action this Agreement that the Securityholder Representative, in its sole and absolute discretion, may consider Representative deems necessary or proper appropriate, whether prior to, at or convenient in connection with after the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewithClosing;
(v) give to receive the Securityholder Expense Fund for the payment of expenses of the Securityholders and receive all notices and communications apply such funds in payment for such expenses;
(vi) to be given do or received by refrain from doing any further act or deed on behalf of the Equity Holders under Securityholders that the Securityholder 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
(vii) to receive service of process in connection with any claims under this Agreement and Agreement. Notwithstanding the other Transaction Agreementsforegoing, including service of process in connection with any arbitration; and
(vi) the Securityholder Representative shall have no obligation to act on behalf of the Equity Holders (including by means Securityholders, except as expressly provided herein and in the Securityholder Representative Engagement Agreement, and for purposes of establishing an escrow account or similar account funded by the Equity Holders)clarity, make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities there are no obligations of the Securityholder Representative in connection with matters related to this Agreement any ancillary agreement, schedule, exhibit or the other Transaction Agreements (providedDisclosure Schedule. The powers, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when immunities and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted rights to be taken by indemnification granted to the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) The grant of authority provided for herein Group hereunder: (i) is are coupled with an interest and shall be irrevocable and survive the death, incompetencyincompetence, bankruptcy or liquidation of any Equity Holder Securityholder and shall be binding on any successor thereto, and (ii) shall survive the Merger and delivery of an assignment by any Securityholder of the consummation whole or any fraction of other transactions contemplated hereby and by his, her or its interest in the other Transaction Agreements.
(d) Holdback Amount. All actions taken by the Securityholder Representative under this Agreement and or the other Transaction Agreements Securityholder Representative Engagement Agreement shall be binding upon all Equity Holders each Securityholder and their respective such Securityholder’s successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice tosuch Securityholder, and deal exclusively withall defenses which may be available to any Securityholder to contest, negate or disaffirm the action of the Securityholder Representative taken in good faith under this Agreement or the Securityholder Representative Engagement Agreement are waived.
(b) The Securityholder Representative may resign at any time and may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Securityholders holding at least a majority of outstanding shares of Company Common Stock (on an as-converted to Company Common Stock basis) as of immediately prior to the Effective Time. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholder Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Securityholder Representative in all matters referred to herein. The Securityholder Representative shall be entitled to: (i) rely upon the Consideration Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Securityholder or other party. Certain Securityholders have entered into an engagement agreement (the “Securityholder Representative Engagement Agreement”) with the Securityholder Representative to provide direction to the Securityholder Representative in connection with its services under this Agreement and the Securityholder Representative Engagement Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Securityholder Representative shall act for the Securityholders on all of the matters set forth in this Agreement in the manner the Securityholder Representative believes to be in the best interest of the Securityholders and consistent with the obligations under this Agreement, but neither the Securityholder Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholder Representative Group”), shall be responsible to the Securityholders for any Damages the Securityholders may suffer by the performance of its duties under this Agreement or the Securityholder Representative Engagement Agreement, other than Damages arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Securityholders shall indemnify, defend and hold harmless the Securityholder Representative Group from and against any and all losses, claims, damages, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Securityholder Representative Expenses”) incurred without gross negligence or willful misconduct on the part of the Securityholder Representative and arising out of or in connection with the acceptance or administration of its duties hereunder or under the Securityholder Representative Engagement Agreement. Such Securityholder Representative Expenses may be recovered first, from the Securityholder Expense Fund, second, from any distribution of the Holdback Amount otherwise distributable to the Securityholders at the time of distribution, and third, directly from the Securityholders. The Securityholders acknowledge that the Securityholder 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 pursuant to this Agreement, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Engagement Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby. Furthermore, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise not be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation required to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representativeits determination, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to performing such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the actions.
(c) The Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of use the Securityholder RepresentativeExpense Fund: (i) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the pay any Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) Expenses incurred by the Securityholder Representative in such capacityfulfilling its obligations hereunder or under the Securityholder Representative Engagement Agreement, or (ii) as otherwise determined by the Advisory Group, and shall be entitled distribute any remaining balance of the Securityholder Expense Fund to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted Exchange Agent for further distribution to be taken in its capacity as the Securityholders upon completion by the Securityholder Representative (except of its duties hereunder. Any such distributions from the Securityholder Expense Fund shall be paid to the Indemnitors in accordance with such Securityholder’s Pro Rata Share of the Securityholder Expense Fund. The Securityholders will not receive any interest or earnings on the Securityholder Expense Fund and irrevocably transfer and assign to the Securityholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Securityholder Representative is not providing any investment supervision, recommendations or advice and will not be liable for those arising out any loss of principal of the Securityholder Representative’s Expense Fund other than as a result of its gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify Securityholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior Fund and has no tax reporting or income distribution obligations. Subject to the Closing. For the avoidance of doubtAdvisory Group approval, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for may contribute funds to the Securityholder Representative Fund from any expensesconsideration otherwise distributable to the Securityholders. For tax purposes, costs or other liabilities incurred the Securityholder Expense Fund will be treated as having been received and voluntarily set aside by it in such capacitythe Securityholders at the time of Closing.
Appears in 1 contract
Sources: Merger Agreement (Okta, Inc.)
Securityholder Representative. (a) Pursuant to The Securityholders, by virtue of the approval and adoption of this Agreement by Company Common Stockholders representing greater than 50% of the outstanding shares of Company Common StockStockholders, each Equity Holder will be deemed to have irrevocably appointed, authorized constitute and empowered appoint the Securityholder Representative to act (and Securityholder Representative hereby accepts such appointment) as a representative for the benefit of each Equity Holder as the exclusive their agent and attorney-in-fact with the power and authority to act on behalf of each Equity Holder in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority to:
(i) execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of each Securityholder, with full power of substitution, to act in the Equity Holders following the Effective Time. Without limiting the generality name, place and stead of the foregoingeach Securityholder, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, to any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner matter relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction AgreementsEscrow Agreement, including service (i) taking such actions and making such decisions as may be necessary or appropriate in connection with the determination of process the amounts payable hereunder; (ii) taking such actions and making such decisions as may be necessary or appropriate in connection with any arbitrationdispute arising pursuant to Section 1.9, including reviewing, disputing, agreeing to, negotiating, entering into settlements or compromises of any such disputes; and
(viiii) enforcing this Agreement and the Escrow Agreement on behalf of the Equity Holders Securityholders; (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when iv) giving and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon receiving all actions taken or omitted notices required to be taken by the Securityholder Representative pursuant to given under this Agreement and the other Transaction Agreements, Escrow Agreement; (v) taking any and all of which actions and making any and all decisions required or omissions shall permitted to be legally binding upon the Equity Holders.
(c) The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy taken or liquidation of any Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken made by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon Escrow Agreement; and (vi) taking any and all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified actions necessary or appropriate in writing furtherance of or for the accomplishment of the foregoing. The power of attorney granted in this Section 7.3 by each of them. Parent shall serve notice to, and deal exclusively with, Securityholder to the Securityholder Representative is coupled with respect to any an interest and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or therebyis irrevocable, and shall may be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported delegated by the Securityholder Representative to have been executed by and shall survive the death or on behalf incapacity of any of the Equity Holders as fully binding upon themSecurityholder. If the Securityholder Representative No bond shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations required of the Securityholder Representative as representative of the Equity Holders hereunderRepresentative. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the The Securityholder Representative shall be entitled to engage such outside legal counsel, accountants, consultants, experts and or other agents and consultants advisors as it shall deem the Securityholder Representative deemed necessary or appropriate in connection with performing its duties or exercising its powers rights under this Agreement and performing its function hereunder the Escrow Agreement.
(b) All decisions, consents, instructions and (actions by the Securityholder Representative made or taken in accordance with this Agreement or the absence Escrow Agreement shall be final and binding on all of the Securityholders, and no Securityholders shall have any cause of action against the Securityholder Representative for any decision made, consent or instruction given, or action taken by the Securityholder Representative under this Agreement or the Escrow Agreement, except for any such decision, consent, instruction or action that constitutes fraud, gross negligence, bad faith or willful misconduct by or on the part behalf of the Securityholder Representative) . Parent shall be entitled to rely conclusively rely on any decisions, consents, instructions and actions by the opinions Securityholder Representative made or taken in connection with this Agreement or the Escrow Agreement in writing, and no party hereto shall have any cause of action against Parent for any action taken by Parent in reliance upon any such decision, consent, instruction or action.
(c) The Securityholder Representative shall not have any liability to any of the parties hereto or to the Securityholders for any act done or omitted hereunder as Securityholder Representative while acting in good faith exercise of reasonable judgment, and any act done or omitted pursuant to the advice of outside legal counsel shall be conclusive evidence of such personsgood faith. Without limiting Section 10.15(a)(vi)The Securityholders shall severally but not jointly, based on their respective Pro Rata Portions, indemnify and hold harmless the Securityholder Representative, from and against any loss, liability or expense incurred by the execution Securityholder Representative arising out of a Letter or in connection with the acceptance, performance or administration of Transmittal each Equity Holder irrevocably shall agree that its duties under this Agreement and the Escrow Agreement, except for any such loss, liability or expense based upon or arising out of any fraud, gross negligence, bad faith or willful misconduct by or on behalf Securityholder Representative. The Securityholder Representative shall be entitled to reimbursement recover any such losses, liabilities or expenses which are indemnifiable hereunder (i) first by recourse to any amounts available in the Expense Fund, (ii) second by recourse to any amounts in the Escrow Fund that are otherwise available for distribution to the Securityholders pursuant to this Agreement and the Escrow Agreement (but solely, following the final determination of the Negative Adjustment pursuant to Section 1.9), and (iii) third by recourse directly to the Securityholders, pro rata, based on the respective portion of the Merger Consideration received by them.
(d) The Securityholder Representative may retain copies, reproductions, summaries, analyses or extracts (whether in hard-copy form or on intangible media, such as electronic mail or computer files) of the contents of any virtual data room maintained by in connection with the transactions contemplated hereby, the Company’s books and records and all expenses, disbursements and advances of the Company’s historical written communications (including fees electronic mail) prior to the Effective Time solely for record retention purposes or in connection with performing its duties or exercising its rights under this Agreement and disbursements the Escrow Agreement.
(e) The identity of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacityand the terms of the agency may be changed, and a successor Securityholder Representative may be appointed, from time to time (including in the event of the resignation, death, disability or other incapacity of the Securityholder Representative) by consent of the Securityholders representing a majority-in-interest (based on the respective Pro Rata Portions) of the Securityholders. Each successor Securityholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Securityholder Representative, and the term “Securityholder Representative” as used herein shall be entitled deemed to indemnification from the Equity Holders against include any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the such successor Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms hereinRepresentatives.
(f) The parties acknowledge that Securityholder Representative shall, in its sole discretion, determine when the unused portion, if any, of the Expense Fund shall be released for further distribution to the Securityholders in accordance with their Pro Rata Portions. Upon such determination by the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that , the Securityholder Representative shall, at its sole discretion, either (i) directly release such unused portion of the Expense Fund to the Securityholders or (ii) along with Parent, deliver to the Escrow Agent or the Paying Agent a written notice executed by each such party instructing the Escrow Agent or the Paying Agent, as applicable, to promptly (and in no event later than one (1) Business Day after the date of such written notice) deliver to each Securityholder his, her or its Pro Rata Portion of the aggregate amount of such funds.
(g) This Section 7.3 shall have no be binding upon the executors, heirs, legal representatives, personal responsibility representatives, successor trustees and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to the rights of the Securityholders hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or liability for any expenses, costs or other liabilities incurred by it in such capacityotherwise.
Appears in 1 contract
Securityholder Representative. (a) Pursuant to By virtue of the adoption of this Agreement by Company Common Stockholders representing greater than 50% and the approval of the outstanding shares of Company Common StockMergers and the other Transactions by the Requisite Stockholder Approval, and by receiving the benefits thereof, including any consideration payable hereunder, each Equity Holder will be deemed to of the Securityholders shall have irrevocably appointedconstituted and appointed Shareholder Representative Services LLC, authorized upon the Effective Time (and empowered the by its execution of this Agreement as Securityholder Representative, Shareholder Representative to act as a representative for the benefit of each Equity Holder Services LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Securityholder Representative”), of the Securityholders receiving consideration hereunder to act in the name, place and stead of the Securityholders for all purposes in connection with the power Transactions, in accordance with the terms and authority provisions of this Agreement and the agreements ancillary hereto, and to act on behalf of each Equity Holder the Securityholders in any Proceeding involving this Agreement and the agreements ancillary hereto, to do or refrain from doing all such further acts and things, and to execute all such documents as the Securityholder Representative shall deem necessary or appropriate in connection with the MergerTransactions, which shall include including the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority topower:
(i) execute and deliver to act for the Securityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Equity Holders Company Stockholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents after the Closing that the Securityholder Representative deems necessary or appropriate in connection with the consummation of the Transactions;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Securityholder Representative deems necessary or appropriate after the Closing;
(iv) to receive the Securityholder Expense Fund for the payment of expenses of the Securityholders and apply such waivers funds in payment for such expenses;
(v) to engage attorneys, accountants and consents other agents on behalf of the Securityholders in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including pay any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests fees related thereto out of the Securityholder Representative arising out of Expense Fund; |US-DOCS\123754940.16||
(vi) to do or under refrain from doing any further act or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and deed on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood Securityholders that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of deems necessary or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, appropriate in its sole and absolute discretion, may consider necessary or proper or convenient in connection with discretion relating to the Merger and other transactions contemplated by subject matter of this Agreement as fully and completely as the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;Securityholders could do if personally present; and
(vvii) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement. and to receive and forward notices and other communications pursuant to this Agreement
(b) The Securityholder Representative may resign at any time. The Securityholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Company or Surviving Corporation by the Company Stockholders holding at least a majority of outstanding shares of Company Preferred Stock as of immediately prior to the Effective Time. Parent, the Surviving Company, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Securityholder Representative in all matters referred to herein. The Securityholder Representative shall act for the Securityholders on all of the matters set forth in this Agreement in the manner the Securityholder Representative believes to be in the best interest of the Securityholders and consistent with the other Transaction Agreements, including service of process obligations under this Agreement.
(c) The Securityholder Representative will incur no liability in connection with its services pursuant to this Agreement and any arbitration; and
related agreements except to the extent resulting from its gross negligence or willful misconduct. The Securityholder Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders shall indemnify the Securityholder Representative against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (vi“Representative Losses”) on behalf arising out of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the gross negligence or willful misconduct of the Securityholder Representative, the Securityholder Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. Representative Losses may be recovered by the Securityholder Representative from (i) the funds in the Securityholder Expense Fund and (ii) any other Transaction Agreements funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Securityholder Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Securityholder Representative be required to advance its own funds on behalf of the Equity HoldersSecurityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, including any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to satisfy costsbe applicable to the indemnities provided to the Securityholder Representative hereunder. The foregoing indemnities will survive the Closing, expenses the resignation or liabilities removal of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to termination of this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction AgreementsAgreement.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the The Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of use the Securityholder Representative as representative of the Equity Holders hereunder. If for Expense Fund to pay any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising fulfilling its powers and performing its function obligations hereunder and (in the absence of bad faith on the part agreements ancillary hereto and shall distribute any remaining balance of the Securityholder Representative) shall be entitled Expense Fund to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by Exchange Agent for further distribution to the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred Securityholders upon completion by the Securityholder Representative in of its duties hereunder. Any such capacity, and distributions from the Securityholder Expense Fund shall be entitled paid to indemnification from the Equity Holders against Indemnitors that are Accredited Investors, with equal priority and pro rata based on each such Securityholder’s Pro Rata Escrow Share of the Securityholder Expense Fund. |US-DOCS\123754940.16|| The Securityholders will not receive any loss, liability interest or expenses arising out of actions taken or omitted earnings on the Securityholder Expense Fund and irrevocably transfer and assign to be taken in its capacity as the Securityholder Representative (except any ownership right that they may otherwise have had in any such interest or earnings. The Securityholder Representative will not be liable for those arising out any loss of principal of the Securityholder Representative’s Expense Fund other than as a result of its gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders Shareholder Representative will indemnify hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Securityholder Representative in accordance with Expense Fund will be treated as having been received and voluntarily set aside by the immediately preceding sentence on a pro rata basis based on their respective equity interest in Securityholders at the Company as time of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacity.
Appears in 1 contract
Sources: Merger Agreement (Skillz Inc.)
Securityholder Representative. (a) Pursuant to the adoption of this Agreement by Company Common Stockholders representing greater than 50% As of the outstanding shares of Company Common StockEffective Date, each Equity Holder will be deemed to have Securityholder irrevocably appointed, authorized and empowered appointed the Securityholder Representative to act as a representative for the benefit of each Equity Holder as the exclusive agent and such Securityholder’s representative, attorney-in-fact and exclusive agent, with full power of substitution to act in the power name, place and authority stead to act on behalf of each Equity Holder such Securityholder in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under any amendment of or litigation or arbitration involving this Agreement; provided, howeverincluding defending, that the negotiating, settling or otherwise dealing with claims under Article X hereof, and to do or refrain from doing all such further acts and things, and to execute all such documents, as such Securityholder Representative shall have no obligation deem necessary or appropriate in conjunction with any of the transactions contemplated by this Agreement and each Ancillary Agreement (subject to the Equity Holders to actforegoing limitation), except as expressly provided herein, and without limiting including the generality of the foregoing, the Securityholder Representative shall have the power and authority topower:
(i) execute and deliver on behalf of the Equity Holders such waivers and consents to take all action necessary or desirable in connection with the waiver of any condition to the obligations of the Securityholders to consummate the transactions contemplated by this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirableAncillary Agreement;
(ii) enforce to negotiate, execute and protect deliver each Ancillary Agreement, statements, certificates, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to given in connection with the rights and interests consummation of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to transactions contemplated by this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this each Ancillary Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that such Securityholder shall execute and deliver any such documents which the Securityholder Representative shall not have any obligation agrees to take any such actions, and shall not have any liability for any failure to take any such actionsexecute);
(iii) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitrationtransactions contemplated hereby; and
(viiv) to take all actions which under this Agreement and the transactions contemplated hereby may be taken by the Securityholders and to do or refrain from doing any further act or deed on behalf of the Equity Holders (including by means Securityholder which the Securityholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or and the other Transaction Agreements or transactions contemplated hereby as fully and completely as such Securityholder could do if personally present. Notwithstanding the foregoing, the Securityholder Representative shall have no obligation to act on behalf of the Equity HoldersSecurityholder, including except as expressly provided herein and in each Ancillary Agreement, and for purposes of clarity, there are no obligations of the Securityholder Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule.
(b) Certain Securityholders have entered into a Security Representative Letter Agreement to satisfy costs, expenses or liabilities of provide direction to the Securityholder Representative in connection with matters related to the performance of its services under this Agreement or and each Ancillary Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the other Transaction Agreements “Advisory Group”). Neither the Securityholder Representative (providedtogether with its members, thatmanagers, no such costsdirectors, expenses or liabilities shall officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Securityholder Representative Group”) will be paid from liable to the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions Securityholders for any action taken or omitted to be taken by the Securityholder Representative pursuant to it as permitted under this Agreement and each Ancillary Agreement and the other Transaction Agreementstransactions contemplated hereby and thereby, all of which actions except if such action is taken or omissions omitted in bad faith, by willful misconduct or due to gross negligence. The Securityholder Representative will also be fully protected against the Securityholders in relying upon any signature, written notice, demand, certificate or document that he in good faith believes to be genuine (including facsimiles thereof) and shall be legally binding upon entitled to reasonably assume that a signatory has proper authorization to sign on behalf of the Equity Holdersapplicable Securityholder or other party.
(c) The grant Securityholders agree, in accordance with their respective Transaction Percentage, to indemnify and defend the Securityholder Representative Group for, and to hold the Securityholder Representative Group harmless against, any loss, liability, cost, fee, claim, damage, judgment, amount in settlement or expense (including fees, disbursements and costs of authority provided counsel and other skilled professionals and in connection with seeking recovery from insurers) incurred without willful misconduct, bad faith, or gross negligence or material breach of the Securityholder Representative Agreement on the part of the Securityholder Representative Group, arising out of or in connection with the Securityholder Representative Group’s carrying out its duties under this Agreement and each Ancillary Agreement and the transactions contemplated hereby and thereby, including costs and expenses (which may be funded first, from the Expense Fund, second, from any amount payable to the Securityholders pursuant to Section 3.7 or any portion of the Escrow Fund payable to the Securityholders pursuant to the terms of this Agreement and each Ancillary Agreement, if any, in either case, solely if and to the extent not subject to any claims for herein indemnification by any Buyer Indemnified Party, and third, directly from the Securityholders based on their respective Transaction Percentage) of successfully defending the Securityholder Representative against any claim of liability with respect thereto. The Securityholders acknowledge that the Securityholder 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 Securityholder Representative may consult with counsel of its own choice and will have full and complete authorization and protection for any action taken and suffered by it in good faith and in accordance with the opinion of such counsel. The powers, immunities and rights to indemnification granted to the Securityholder Representative and the Advisory Group hereunder: (i) is are coupled with an interest and shall be irrevocable and survive the death, incompetencyincompetence, bankruptcy or liquidation of the respective Securityholder and shall be binding on any Equity Holder successor thereto, and (ii) shall survive the Merger and delivery of an assignment by any Securityholder of the consummation whole or any fraction of other transactions contemplated hereby and by his, her or its interest in the other Transaction AgreementsEscrow Fund.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively withIn acting hereunder, the Securityholder Representative with respect to any shall act on behalf of all Securityholders and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or not on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on themone Securityholder.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that If the Securityholder Representative becomes unable to serve as Securityholder Representative, such other Person or Persons as may be designated by a majority of the Securityholders, based on each Securityholder’s Transaction Percentage, and shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity succeed as the Securityholder Representative, unless . The immunities and rights to indemnification shall survive the resignation or removal of the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part any member of the Securityholder Representative) shall be entitled to conclusively rely on Advisory Group and the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against Closing and/or any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions termination of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration Agreement and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms hereinAncillary Agreements.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacity.
Appears in 1 contract
Sources: Acquisition Agreement and Plan of Merger (Envestnet, Inc.)
Securityholder Representative. (a) Pursuant to By virtue of the approval and adoption of this Agreement by Company Common Stockholders representing greater than 50% and the approval of the outstanding shares transactions contemplated hereby, including the Merger, by the Company Stockholders, the acceptance of Company Common Stockconsideration under this Agreement and/or the completion, execution and delivery of the letters of transmittal contemplated by Section 1.9, each Equity Holder will of the Participating Securityholders shall be deemed to have irrevocably appointed(i) designated Shareholder Representative Services LLC as the representative of the Participating Securityholders (the “Securityholder Representative”), authorized and empowered (ii) agreed that the Securityholder Representative to act as a representative for is hereby appointed and constituted the benefit of each Equity Holder as the exclusive agent true and lawful attorney-in-fact with the power and authority to act on behalf of each Equity Holder Participating Securityholder, with full power in connection his, her or its name and on his, her or its behalf to give and receive notices and communications in respect of indemnification claims under this Agreement to be recovered against the Escrow Fund, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of any indemnification claims hereunder by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to any such indemnification claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any such indemnification claim by any Indemnified Party hereunder against any Participating Securityholder or by any such Participating Securityholder against any Indemnified Party or any dispute between any Indemnified Party and any such Participating Securityholder, in each case relating to this Agreement or the Mergertransactions contemplated hereby, which shall include and to take all other actions that are either (i) necessary or appropriate in the power and authority as is necessary to carry out the functions assigned to judgment of the Securityholder Representative under for the accomplishment of the foregoing or (ii) specifically mandated or permitted by the terms of this Agreement. Such agency may be changed by the Participating Securityholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Securityholder Representative shall have no obligation may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the Equity Holders identity of the substituted agent. Notwithstanding the foregoing, in the event of a resignation of the Securityholder Representative or other vacancy in the position of Securityholder Representative, such vacancy may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Securityholder Representative. After the Closing, notices or communications to act, except or from the Securityholder Representative shall constitute notice to or from the Participating Securityholders.
(b) The Securityholder Representative shall not be liable for any act done or omitted hereunder as expressly provided herein, Securityholder Representative while acting in good faith and without limiting gross negligence. The Participating Securityholders on whose behalf the generality Escrow Amount was contributed to the Escrow Fund shall indemnify the Securityholder Representative and hold the Securityholder Representative harmless against any and all Losses arising out of or in connection with the acceptance or administration of the foregoingSecurityholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Securityholder Representative and any amounts required to be paid by the Securityholder Representative to the Escrow Agent pursuant to the Escrow Agreement (“Representative Expenses”), in each case, as such Representative Expense is incurred or suffered; provided, that in the event that any such Representative Expense is finally adjudicated to have arisen from the bad faith, gross negligence or willful misconduct of the Securityholder Representative, the Securityholder Representative will reimburse the Participating Securityholders the amount of such Representative Expense attributable to such bad faith, gross negligence or willful misconduct. The Representative Expense Amount shall be available to reimburse the Securityholder Representative for any Representative Expenses. Following the Expiration Date, the Securityholder Representative shall have the power and authority to:
(i) execute and deliver on behalf of right to recover Representative Expenses not previously recovered from the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid Expense Fund from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
Fund prior to any distribution to the Participating Securityholders (b) Parent may rely upon all actions taken or omitted solely from any funds that are not subject to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative pending indemnification claims made under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice toAgreement), and deal exclusively with, the Securityholder Representative with respect prior to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafterdistribution, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed deliver to the rights Escrow Agent a certificate setting forth the Representative Expenses actually incurred and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closingnot previously recovered. For the avoidance of doubt, while this section allows the provisions of Securityholder Representative to be paid from the Representative Expense Fund and Escrow Fund, this Section 10.15(e7.6(b) shall not limit the obligation of any Participating Securityholder to promptly pay such Representative Expenses as they are contemplated in incurred. Following the determination Expiration Date, the resolution of the Base Merger Consideration all indemnification claims made under this Agreement and the Equity Holders agree that no additional consideration shall be required for the enforceability satisfaction of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that all such indemnification claims, the Securityholder Representative shall have no personal responsibility distribute such portion of the Representative Expense Amount that has not been used to reimburse the Securityholder Representative for Representative Expenses, if any, to the Escrow Agent, who will promptly distribute such funds to the Participating Securityholders in accordance with their respective Pro Rata Fractions. A decision, act, consent or instruction of the Securityholder Representative shall constitute a decision of the Participating Securityholders and shall be final, conclusive and binding upon the Participating Securityholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Securityholder Representative as being the decision, act, consent or instruction of the Participating Securityholders. The Escrow Agent and Parent are hereby relieved from any liability to any person for any expensesacts done by them in accordance with such decision, costs act, consent or other liabilities instruction of the Securityholder Representative.
(c) Certain Participating Securityholders (the “Advisory Group”) have entered or will enter into a letter agreement with the Securityholder Representative regarding direction to be provided by the Advisory Group to the Securityholder Representative. The Advisory Group shall incur no liability to the Participating Securityholders for any liability incurred by the members of the Advisory Group while acting in good faith and arising out of or in connection with the acceptance or administration of their duties (it in being understood that any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such capacitygood faith), even if such act or omission constitutes negligence on the part of the Advisory Group or one of its members. This exculpation from liability shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Lifelock, Inc.)
Securityholder Representative. (a) Pursuant The parties have agreed that it is desirable to designate a representative to act on behalf of Blocker Holder and the Company Unitholders (the “Securityholders”). By voting in favor of the adoption of this Agreement by Company Common Stockholders representing greater than 50% of the outstanding shares of Company Common StockTransactions or participating therein and receiving the benefits thereof, including the right to receive the consideration payable in connection herewith, each Equity Holder will Securityholder shall be deemed to have irrevocably appointedapproved the designation of, authorized and empowered the Securityholder hereby designates, Shareholder Representative to act Services LLC as a representative for the benefit of each Equity Holder as the exclusive its representative, agent and attorney-in-fact with the power and authority to act on behalf of each Equity Holder for all purposes in connection with this Agreement and the Mergeragreements ancillary hereto (the “Securityholder Representative”). The Securityholders hereby designate Shareholder Representative Services LLC as the initial Securityholder Representative. The Securityholder Representative may resign at any time, and the Securityholder Representative may be removed by the affirmative vote of the Blocker Holder and persons which collectively owned more than fifty percent (50%) membership interests of the Company as of immediately prior to the Second Effective Time, voting together as a single class (the “Majority Holders”). In the event that a Securityholder Representative has resigned or been removed, a new Securityholder Representative shall include be appointed by a vote of the power Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Securityholder Representative. The Securityholder Representative shall have such powers and authority as is are necessary to carry out the functions assigned to the Securityholder Representative it under this AgreementAgreement and the agreements ancillary hereto; provided, however, that the Securityholder Representative shall have no obligation to act on behalf of the Equity Holders to act, Securityholders except as expressly provided herein, and without . Without limiting the generality of the foregoing, the Securityholder Representative shall have full power, authority and discretion to, after the power and authority to:
Second Effective Time (i) execute negotiate and deliver enter into amendments to this Agreement for and on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and therebySecurityholders, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce give and protect the rights receive notices and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner other communications relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and Transactions on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoingSecurityholder, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) take or refrain from enforcing taking any right of the Equity Holdersactions (whether by negotiation, arising out of settlement, litigation or under otherwise) to resolve or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and settle all matters concerning any of the Equity Holders and disputes arising out of or related to this Agreement and the Transactions and (iv) take all actions necessary or appropriate in the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations judgment of the Securityholder Representative as representative for the accomplishment of the Equity Holders hereunder. If for foregoing, including with respect to any reason there is no Securityholder Representative at any time, all references herein determination or in any other agreement or instrument contemplated hereby dispute related to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common StockContingency Consideration. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the The Securityholder Representative shall have no liability to NAC, ParentCo, Blocker, Merger Sub Corp, Merger Sub LLC, the Company or the Surviving Company or any Equity Holder Securityholder with respect to actions taken or omitted to be taken in its capacity as taken, except to the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as extent directly arising out of the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security ’s gross negligence or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such actionwillful misconduct. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the The Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such personspersons and shall have no liability for such reliance. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the The Securityholder Representative shall be entitled to reimbursement solely from the Securityholders (pro rata in proportion to Cash Consideration and ParentCo Common Shares issuable to such Securityholder at the Closing as set forth on the Payment Spreadsheet) for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative. The Securityholders will (pro rata in proportion to Cash Consideration and ParentCo Common Shares issuable to such Securityholder at the Closing as set forth on the Payment Spreadsheet) indemnify, defend and hold harmless the Securityholder Representative in such capacity, from and shall be entitled to indemnification from the Equity Holders against any lossand all losses, liability or liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of actions taken or omitted in connection with the Securityholder Representative’s execution and performance of this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to be taken in its capacity as have been directly caused by the gross negligence or willful misconduct of the Securityholder Representative, the Securityholder Representative will reimburse each Securityholder (except for those arising out pro rata in proportion to Cash Consideration and ParentCo Common Shares issuable to such Securityholder at the Closing as set forth on the Payment Spreadsheet) the amount of Securityholder Representative’s such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify If not paid directly to the Securityholder Representative in accordance with by the immediately preceding sentence on a pro rata basis based on their respective equity interest Securityholders, any such Representative Losses may be recovered by the Securityholder Representative from the funds in the Company Expense Fund; provided, that while this section allows the Securityholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Securityholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Securityholder Representative be required to advance its own funds on behalf of immediately prior the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Securityholder Representative under this section. The Securityholders acknowledge and agree that the foregoing indemnities will survive the Closing. For the avoidance of doubt, the provisions resignation or removal of the Securityholder Representative or the termination of this Section 10.15(eAgreement. Upon the Closing, the Company will wire an amount of $200,000 (the “Expense Fund”) are contemplated to the Securityholder Representative, which will be used for the purposes of paying directly, or reimbursing the Securityholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Securityholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Securityholder Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the determination event of bankruptcy. As soon as practicable following the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability completion of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that responsibilities, the Securityholder Representative shall have no personal responsibility or liability will deliver any remaining balance of the Expense Fund to the Exchange Agent for any expensesfurther distribution to the Securityholders. For tax purposes, costs or other liabilities incurred the Expense Fund will be treated as having been received and voluntarily set aside by it in such capacitythe Securityholders at the time of Closing.
Appears in 1 contract
Sources: Business Combination Agreement (Nebula Acquisition Corp)
Securityholder Representative. (a) Pursuant to The Securityholder Representative shall act as the adoption representative of the Securityholders in respect of all matters arising under this Agreement by Company Common Stockholders representing greater than 50% or any of the outstanding shares Ancillary Documents, and shall be authorized to act, or refrain from acting, with respect to any actions to be taken by or on behalf of Company Common Stockany Securityholder or the Securityholder Representative, including to enforce any rights granted to any Securityholder hereunder, in each Equity Holder will be deemed to have irrevocably appointed, authorized and empowered case as the Securityholder Representative to act as a representative believes is necessary or appropriate under this Agreement and the Ancillary Documents, for the benefit of each Equity Holder as the exclusive agent and attorney-in-fact with the power and authority to act on behalf of each Equity Holder the Securityholders, including taking any and all actions that may be necessary or desirable, as determined by the Securityholder Representative, in its sole discretion, in connection with negotiating or entering into settlements and compromises of any claim for indemnification pursuant to Article VII hereof. The Securityholders shall be bound by all such actions taken by the Securityholder Representative and no Securityholder shall be permitted to take any such actions. The Securityholder Representative is serving as the Securityholder Representative solely for purposes of administrative convenience, and is not personally liable (except in its capacity as a Securityholder hereunder) for any of the obligations of the Company, Newco, any of their Subsidiaries or any of Securityholders hereunder, and Parent (on behalf of itself and its Affiliates) agrees that it will not look to the Securityholder Representative or the underlying assets of the Securityholder Representative for the satisfaction of any obligations of the Company, Newco, any of their respective Subsidiaries or any of the Securityholders. The Securityholder Representative shall not be liable for any error of judgment, or any action taken, suffered or omitted to be taken, in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to performance by the Securityholder Representative under this Agreement; provided, however, that of the Securityholder Representative’s duties or the exercise by the Securityholder Representative of the Securityholder Representative’s rights and remedies under this Agreement or any Ancillary Document, except in the case of its bad faith or willful misconduct. No bond shall be required of the Securityholder Representative. The Securityholder Representative may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Securityholder Representative shall not have no obligation any duty to ascertain or to inquire as to the Equity Holders to actperformance or observance of any of the terms, except as expressly provided herein, and without covenants or conditions of this Agreement or any Ancillary Document. Without limiting the generality of the foregoing, the Securityholder Representative shall have the full power and authority to:
(i) execute to interpret all the terms and deliver on behalf provisions of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or thereinAncillary Documents, and to take consent to any and all actions which the Securityholder Representative believes are necessary amendment hereof or appropriate under this Agreement or the other Transaction Agreements for and thereof on behalf of the Equity Holders following the Effective Timeall Securityholders and their respective successors. Without limiting the generality of the foregoingParent shall be entitled to rely on all statements, following the Effective Timerepresentations, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriatedecisions of, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be taken by by, the Securityholder Representative pursuant relating to this Agreement or any Ancillary Document.
(b) The Securityholders will indemnify and hold harmless the Securityholder Representative from and against any and all Losses arising out of or in connection with the Securityholder Representative’s execution and performance of this Agreement and the other Transaction AgreementsAncillary Document, all in each case as such Loss is suffered or incurred; provided, that in the event that any such Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of which actions the Securityholder Representative, the Securityholder Representative will reimburse the Securityholders the amount of such indemnified Loss to the extent attributable to such gross negligence or omissions shall willful misconduct. In no event will the Securityholder Representative be legally binding upon required to advance its own funds on behalf of the Equity HoldersSecurityholders or otherwise. The Securityholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Securityholder Representative or the termination of this Agreement.
(c) The grant of authority provided for herein Securityholder Representative may resign by giving 30 days’ notice to Parent and the Securityholders; provided, that (i) is coupled with an interest and in no event shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation Securityholder Representative resign without the prior written consent of any Equity Holder Parent and (ii) in the event of the resignation or removal of the Securityholder Representative, a new Securityholder Representative (who shall survive the Merger and the consummation of other transactions contemplated hereby and be reasonably acceptable to Parent) shall be appointed by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent majority-in-interest of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of Securityholders immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms hereinEffective Time.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacity.
Appears in 1 contract
Sources: Agreement and Plan of Merger (B. Riley Principal Merger Corp. II)
Securityholder Representative. (a) Pursuant to By virtue of the adoption of this Agreement by Company Common Stockholders representing greater than 50% and the approval of the outstanding shares of Company Common StockMergers and the other Transactions by the Requisite Stockholder Approval, each Equity Holder will be deemed to of the Securityholders shall have irrevocably constituted and appointed, authorized upon the Effective Time (and empowered the by its execution of this Agreement as Securityholder Representative, Shareholder Representative to act as a representative for the benefit of each Equity Holder Services LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Securityholder Representative”), of the Securityholders receiving consideration hereunder to act in the name, place and stead of the Securityholders in connection with the power Transactions, in accordance with the terms and authority provisions of this Agreement, and to act on behalf of each Equity Holder the Securityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Securityholder Representative shall deem necessary or appropriate in connection with the MergerTransactions, which shall include including the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority topower:
(i) execute and deliver to act for the Securityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Equity Holders such waivers Securityholders and consents in connection to transact matters of litigation or other Proceedings, with this Agreement and respect to any funds to be released from the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and therebyIndemnity Escrow Fund (but, for clarity, not including any amendments or modifications to this Agreement or Damages in excess of funds then remaining in the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirableIndemnity Escrow Fund);
(ii) enforce to execute and protect the rights deliver all amendments, waivers, ancillary agreements, stock powers, certificates and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood documents that the Securityholder 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)deems necessary or appropriate in connection with the consummation of the Transactions;
(iii) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to execute and deliver all amendments and waivers to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative deems necessary or by appropriate, whether prior to, at or after the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder RepresentativeClosing;
(iv) on behalf to receive funds for the payment of expenses of the Equity Holders, make, execute, acknowledge Securityholders and deliver all apply such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, funds in general, to do any and all things and to take any and all action that the Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewithpayment for such expenses;
(v) give and receive all notices and communications to be given do or received by refrain from doing any further act or deed on behalf of the Equity Holders under Securityholders that the Securityholder 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
(vi) to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; andAgreement.
(vib) on behalf The Securityholder Representative may be removed or replaced only upon delivery of written notice to the Equity Holders (including by means of establishing an escrow account or similar account funded Surviving Company by the Equity Holders)Company Stockholders holding at least a majority of outstanding shares of Company Common Stock (on an as-converted to Company Common Stock basis) as of immediately prior to the Effective Time. Parent, make or receive the Surviving Company and any payments or to pay other Person may conclusively and absolutely rely, without inquiry, upon any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities action of the Securityholder Representative in all matters referred to herein. The Securityholder Representative shall act for the Securityholders on all of the matters set forth in this Agreement in the manner the Securityholder Representative believes to be in the best interest of the Securityholders and consistent with the obligations under this Agreement, but neither the Securityholder Representative nor any member of the Securityholder Representative’s Advisory Committee (the “Advisory Committee”) shall be responsible to the Securityholders for any Damages the Securityholders may suffer by the performance of its duties under this Agreement, other than Damages arising from willful violation of the law or gross negligence in the performance of the duties of the Stockholder Representative or such member of the Advisory Committee, as applicable, under this Agreement. The Indemnitors will indemnify, defend and hold harmless the Securityholder Representative and each member of the Advisory Committee from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the reasonable, documented out-of-pocket fees and expenses of counsel and experts and their staffs and relating to document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with matters related to the Securityholder Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided that in the other Transaction Agreements (event that any such Representative Loss is finally adjudicated to have been directly caused by the fraud, gross negligence or willful misconduct of the Securityholder Representative or any member of the Advisory Committee, the Securityholder Representative or such member of the Advisory Committee will reimburse the Indemnitors the amount of such indemnified Representative Loss to the extent attributable to such fraud, gross negligence or willful misconduct. If not paid directly to the Securityholder Representative or such member of the Advisory Committee, as applicable, by the Indemnitors, any such Representative Losses may be recovered by the Securityholder Representative or such member of the Advisory Committee, as applicable, from the funds in the Securityholder Expense Fund at such time as remaining amounts would otherwise be distributable to the Indemnitors; provided, thatthat while this section allows the Securityholder Representative or any member of the Advisory Committee, no such costsas applicable, expenses or liabilities shall to be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken aforementioned sources of funds, this does not relieve the Indemnitors from their obligation to promptly pay such Representative Losses as they are suffered or omitted to be taken by incurred, nor does it prevent the Securityholder Representative pursuant or any member of the Advisory Committee, as applicable from seeking any remedies available to it at law or otherwise. In no event will the Securityholder Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement and to the other Transaction Agreementscontrary, all any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Securityholder Representative under this Section 11.01(b). The foregoing indemnities will survive the Closing or the resignation or removal of which actions the Securityholder Representative or omissions shall be legally binding upon the Equity Holderstermination of this Agreement.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of use the Securityholder Representative as representative of the Equity Holders hereunder. If for Expense Fund to pay any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising fulfilling its powers and performing its function obligations hereunder and (in the absence of bad faith on the part shall distribute any remaining balance of the Securityholder Representative) shall be entitled Expense Fund to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by Exchange Agent for further distribution to the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred Securityholders upon completion by the Securityholder Representative in of its duties hereunder. Any such capacity, and distributions from the Securityholder Expense Fund shall be entitled paid to indemnification from the Equity Holders against Exchange Agent for further distribution to the Indemnitors, with equal priority and pro rata based on each such Securityholder’s Pro Rata Share. The Securityholders will not receive any loss, liability interest or expenses arising out of actions taken or omitted earnings on the Securityholder Expense Fund and irrevocably transfer and assign to be taken in its capacity as the Securityholder Representative (except any ownership right that they may otherwise have had in any such interest or earnings. The Securityholder Representative will not be liable for those arising out any loss of principal of the Securityholder Representative’s Expense Fund other than as a result of its gross negligence or willful misconduct). For tax purposes, including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with Expense Fund will be treated as having been received and voluntarily set aside by the immediately preceding sentence on a pro rata basis based on their respective equity interest in Securityholders at the Company as time of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacity.
Appears in 1 contract
Sources: Merger Agreement (Intuit Inc)
Securityholder Representative. (a) Pursuant to the adoption For purposes of this Agreement by Company Common Stockholders representing greater than 50% Agreement, the Escrow Securityholders, without any further action on the part of the outstanding shares of Company Common Stockany such Escrow Securityholder, each Equity Holder will shall be deemed to have irrevocably appointedconsented to the appointment of a committee consisting of ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, authorized and empowered the Securityholder Representative to act as a representative for the benefit of each Equity Holder acting only jointly, as the exclusive agent and representative of such Escrow Securityholders (the "Securityholder Representative"), as the attorney-in-fact with for and on behalf of each such Escrow Securityholder, and the taking by the Securityholder Representative of any and all actions and the making of any decisions required or permitted to be taken by them under this Agreement, including the exercise of the power to (i) execute the Escrow Agreement, (ii) authorize delivery to Parent and Acquisition of the Escrow Amount, or any portion thereof, in satisfaction of Indemnification Claims, (iii) authorize the use of up to an aggregate of Five Hundred Thousand Dollars ($500,000) of the Escrow Amount to defend any claims, (iv) agree to, negotiate, enter Into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to such Indemnification Claims, (v) resolve any Indemnification Claims and (vi) take all actions necessary in the judgment of the Securityholder Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement and the Escrow Agreement. Accordingly, the Securityholder Representative has unlimited authority and power to act on behalf of each Equity Holder in connection Escrow Securityholder with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority to:
(i) execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating respect to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Escrow Agreement and the disposition, settlement or other Transaction Agreementshandling of all Indemnification Claims, rights or obligations arising from and taken pursuant to this Agreement. The Escrow Securityholders will be bound by all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received actions taken by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice toAgreement, and deal exclusively with, the Securityholder Representative with respect to any Parent and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and Acquisition shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any action or decision of the Securityholder Representative. The Securityholder Representative will incur no liability with respect to any action taken or suffered by them in reliance upon any notice, direction, instruction, consent, statement or other document purported believed by them to be genuine and to have been signed by the proper person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except their own willful misconduct or gross negligence. In all questions arising under this Agreement or the Escrow Agreement, the Securityholder Representative may rely on the advice of counsel, and the Securityholder Representative will not be liable to anyone for anything done, omitted or suffered in good faith by the Securityholder Representative based on such advice. The Securityholder Representative will not be required to have been executed by take any action involving any expense unless the payment of such expense is made or on behalf of any of the Equity Holders as fully binding upon provided for in a manner satisfactory to them. If So long as the Securityholder Representative shall resignat all times be comprised of at least one (1) and no more than three (3) individuals, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative at any time during the term of the Equity HoldersEscrow Agreement, holders of a majority in interest of the Equity Holders shall, within ten days after Escrow Amount can remove and replace one or all of the occurrence of such event, appoint (individuals serving as the Securityholder Representatives by majority vote or written consent by sending notice and a copy of the written consent appointing such new individual or individuals signed by holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent majority in interest of the identity Escrow Amount to Parent and the Escrow Agent. Such appointment will be effective upon the later of the date indicated in the consent or the date such successorconsent is received by Parent and the Escrow Agent. Any such successor new individual shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or serve in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant such capacity subject to the terms and conditions of this the Escrow Agreement and provide notice to the Escrow Agent of its identity and notice information for purposes of Section 21 of the Escrow Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity . If more than one individual is serving as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which such individuals may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of only take actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms hereinjointly.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacity.
Appears in 1 contract
Securityholder Representative. (a) Pursuant to The Company Securityholders, by the approval and adoption of this Agreement by Company Common Stockholders representing greater than 50% and the execution of the outstanding shares Stockholder Consent and the letters of Company Common Stocktransmittal, each Equity Holder will shall be deemed to have irrevocably appointeddesignated Shareholder Representative Services LLC (together with its permitted successors) as his, authorized her or its representative and empowered the Securityholder Representative to act as a representative for the benefit of each Equity Holder as the exclusive true and lawful agent and attorney-in-fact with the power and authority to act on behalf for purposes of each Equity Holder in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority to:
(i) execute and deliver on behalf of taking all action necessary to consummate the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and therebyhereby, including any amendments or modifications to this Agreement or the defense and/or settlement of any claims for which the Company Securityholders may be required to indemnify Parent or any other Transaction AgreementsIndemnified Party pursuant to Article VII of this Agreement, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce giving and protect the rights and interests of the Equity Holders following the Effective Time and receiving all notices required to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate be given under this Agreement or the other Transaction Agreements for Escrow Agreement, and (iii) taking any and all additional action as is contemplated to be taken by or on behalf of the Equity Holders following Company Securityholders by the Effective Time. Without limiting terms of this Agreement.
(b) All decisions and actions by the generality of the foregoingSecurityholder Representative, following the Effective Time, including any agreement between the Securityholder Representative and Parent relating to the defense or settlement of any claims for which the Company Securityholders may (A) assert any claim or institute any Actionbe required to indemnify Parent pursuant to Article VII of this Agreement, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any shall be binding upon all of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriateCompany Securityholders, and give receiptsno Company Securityholder shall have the right to object, releases and discharges with respect todissent, any such Action, protest or otherwise contest the same.
(Dc) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the The Securityholder Representative shall not have any obligation Liability to take any such actionsof the parties hereto or to the Company Securityholders for any act done or omitted hereunder as Securityholder Representative while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Company Securityholders shall severally and not have jointly (based on each Company Securityholder’s Pro Rata Share) indemnify the Securityholder Representative and hold it harmless against any liability for any failure to take any such actions);
(iii) refrain from enforcing any right of the Equity Holdersloss, arising out of Liability or under expense incurred without gross negligence or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act bad faith on the part of the Securityholder RepresentativeRepresentative and arising out of or in connection with the acceptance or administration of his duties hereunder, except as otherwise provided in this Agreement or the including any out-of-pocket costs and expenses and legal fees and other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or legal costs incurred by the Securityholder Representative;
(iv) . If not paid directly to the Securityholder Representative by the Company Securityholders, such losses, liabilities or expenses may be distributed to the Securityholder Representative, on behalf of the Equity HoldersCompany Securityholders, make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, from the cash deposited in general, to do any and all things and to take any and all action that the Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf Indemnity Escrow Amount of the Equity Holders Escrow Fund that is otherwise distributable to Company Securityholders after the Survival Date (including by means and not distributed or distributable to Parent or subject to a pending indemnification claim of establishing an escrow account or similar account funded by Parent) pursuant to the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf terms hereof and of the Equity HoldersEscrow Agreement, including to satisfy costs, expenses or liabilities at the time of distribution; provided that while this section allows the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Indemnity Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any Amount of the Equity Holders arising out of or related Escrow Fund, this does not relieve the Company Securityholders from their obligation to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as indemnify the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take hold it harmless against any action in its capacity as the Securityholder Representativeloss, unless the Securityholder Representative has been provided with funds, security Liability or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be expense incurred by the Securityholder Representative in responding to such direction without gross negligence or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that nor does it prevent the Securityholder Representative shall be entitled from seeking any remedies available to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability it at law or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms hereinotherwise.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacity.
Appears in 1 contract
Sources: Merger Agreement (Vistaprint N.V.)
Securityholder Representative. (a) Pursuant to By virtue of the approval and adoption of this Agreement by Company Common Stockholders representing greater than 50% the requisite consent of the outstanding shares of Company Common StockSecurityholders, each Equity Holder will of the Company Securityholders (other than such Company Securityholders, if any, who have perfected appraisal rights under Delaware) shall be deemed to have irrevocably appointedagreed to appoint Technology Crossover Management VI, authorized and empowered the Securityholder Representative to act L.L.C., a Delaware limited liability company, as a representative for the benefit of each Equity Holder as the exclusive its agent and attorney-in-fact with (the power “Securityholder Representative”) for and authority to act on behalf of the Company Securityholders to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Indemnified Party against any Company Securityholder or by any such Company Securityholder against any Indemnified Party or any dispute between any Indemnified Party and any such Company Securityholders, in each Equity Holder case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to judgment of the Securityholder Representative under for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement; provided, however, that . Such agency may be changed by the Securityholder Representative shall have no obligation Company Securityholders with the right to a majority of the Equity Holders Pro Rata Portions of the Escrow Fund from time to act, except as expressly provided herein, and without limiting the generality of time. Notwithstanding the foregoing, the Securityholder Representative may resign at any time by providing written notice of intent to resign to the Company Securityholders, which resignation shall have be effective upon the power and authority to:earlier of
(iA) execute and deliver on behalf thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation Escrow Fund. No bond shall be required of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f))compensation for its services.
(b) Parent may rely upon all actions taken The Securityholder Representative shall not be liable for any act done or omitted to be taken by the hereunder as Securityholder Representative pursuant to while acting in good faith, even if such act or omission constitutes negligence on the part of such Securityholder Representative. The Securityholder Representative shall only have the duties expressly stated in this Agreement and the shall have no other Transaction Agreementsduty, all of which actions express or omissions shall be legally binding upon the Equity Holders.
(c) implied. 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement may engage attorneys, accountants and the other Transaction Agreements shall be binding professionals and experts. The Securityholder Representative may in good faith rely conclusively upon all Equity Holders information, reports, statements and their respective successors and assigns as if expressly confirmed and ratified in writing opinions prepared or presented by each of them. Parent shall serve notice tosuch professionals, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative based on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, such reliance shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall deemed conclusively to have no liability to any Equity Holder with respect to actions taken or omitted to be been taken in its capacity as good faith. The Company Securityholders shall indemnify the Securityholder Representative and that hold the Securityholder Representative shall be under no obligation to take harmless against any action in its capacity as the Securityholder Representativeloss, unless the Securityholder Representative has been provided with funds, security liability or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be expense incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that Representative (so long as the Securityholder Representative was acting in good faith in connection therewith) and arising out of or in connection with the acceptance or administration of the Securityholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Securityholder Representative and travel expenses (“Securityholder Representative Expenses”). The Representative Reimbursement Fund shall be entitled available to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) reimburse the Securityholder Representative Expenses actually incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that promptly following the Securityholder Representative’s obligations under this Section 10.15 are solely as delivery to the Escrow Agent of a representative certificate setting forth such Securityholder Representative Expenses actually incurred. Upon the Escrow Termination Date, the balance of the Equity Holders and that Representative Reimbursement Fund shall promptly be delivered to the Company Securityholders, except with respect to any amount necessary to satisfy any pending certified requests made by the Securityholder Representative for Securityholder Representative Expenses. As soon as all such Securityholder Representative Expenses have been properly paid, the Escrow Agent shall have no personal responsibility immediately deliver the remaining portion of the Representative Reimbursement Amount to the Company Securityholders. Deliveries from the Representative Reimbursement Fund to the Company Securityholders pursuant to this Section 8.6(b) and the Escrow Agreement shall be made in proportion to their respective Pro Rata Portion of the remaining Representative Reimbursement Amount, with each amount rounded to the nearest whole cent ($0.01). A decision, act, consent or liability instruction of the Securityholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Sections 9.4 or 9.5 hereof, shall constitute a decision of the Company Securityholders and shall be final, binding and conclusive upon the Company Securityholders.
(c) From and after the Effective Time, Parent shall cause Surviving Corporation to provide the Securityholder Representative with reasonable access to information about the Surviving Corporation solely for any expenses, costs or other liabilities incurred by it in such capacitypurposes of performing its duties and exercising its rights under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (IHS Inc.)
Securityholder Representative. (a) Pursuant to the adoption For purposes of this Agreement by Company Common Stockholders representing greater than 50% of Agreement, the outstanding shares of Company Common StockPaying Agency Agreement, the Registration Rights Agreement, and the other ancillary agreements, documents and certificates pursuant to such agreements, including all waivers and amendments to such agreements, documents and certificates (collectively, the “Transaction Documents”), the Transactions and in any Action involving the Transaction Documents, each Equity Holder will Company Indemnifying Party shall, without any further action on the part of any such Company Securityholder, be deemed to have irrevocably appointed, authorized and empowered consented to the appointment of the Securityholder Representative to act as a representative for the benefit of each Equity Holder as the exclusive agent and representative of such Company Securityholder, as the attorney-in-fact with the power for and authority to act on behalf of each Equity Holder such Company Securityholder in connection accordance with the Mergerterms of its engagement as the representative of the Company Securityholders, which shall include and the power and authority as is necessary to carry out the functions assigned to taking by the Securityholder Representative of any and all actions and the making of any decisions required or permitted to be taken by them under this Agreement; providedor contemplated by the Transaction Documents in each case, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoingapplicable. In connection therewith, the Securityholder Representative shall have the power and authority authority, on behalf of the Company Securityholders, as applicable, to:
: (i) execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action Documents (it being understood that no amendment shall be made which by Law requires further approval by the Securityholder Representative shall not have any obligation to take any Company Stockholders without such actionsfurther approval), and shall not have any liability for any failure take all actions required or permitted to take any be taken under the Transaction Documents; (ii) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to such actions);
indemnification or other claims; (iii) refrain from enforcing act for the Company Indemnifying Parties (regardless of whether any right such Company Indemnifying Party votes in favor of the Equity Holders, arising out adoption and approval of or under or in any manner relating this Agreement and the approval of the Merger) with regard to all matters pertaining to indemnification pursuant to this Agreement or Article VI, including the other documents contemplated hereby; provided, however, that no such failure power to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of compromise any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) indemnification claim on behalf of the Equity Holders, 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 Company Indemnifying Parties and to take any transact matters of litigation or other claims; (iv) give, receive and all action that the Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive forward all notices and communications required to be given or received by the Equity Holders Company Securityholders under this Agreement the Transaction Documents and to receive in connection with any of the transactions and other matters contemplated hereby or thereby (including the Transactions), including receiving service of process in connection with any claims under this Agreement and the Paying Agency Agreement; (v) engage attorneys, accountants, financial and other Transaction Agreementsadvisors and other Persons (including the Paying Agent) necessary or appropriate (at the expense of the Company Securityholders), including service in the sole discretion of process the Securityholder Representative in connection with the performance of its duties under this Agreement, and authorizing and directing the disbursement of funds to pay the fees and expenses of such Persons (including, for the avoidance of doubt, by directing the disbursement of a portion of any arbitrationMilestone Payment or Revenue Payment payable to the Company Securityholders pursuant to this Agreement to pay the fees and expenses of such Persons prior to disbursing the remaining amount of such Milestone Payment or Revenue Payment to the Company Securityholders); and
and (vi) take all actions or refrain from doing any further act or deed on its own behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of Company Securityholders that the Securityholder Representative deems necessary or appropriate in connection with matters related its discretion relating to this Agreement the subject matter of the Transaction Documents, as fully and completely as the Company Securityholders could do if personally present. Shareholder Representative Services LLC, a Colorado limited liability company, hereby accepts its appointment as the Securityholder Representative. The Securityholder Representative is authorized by each Company Securityholder to act on such holder’s behalf as required under the Transaction Documents. The Securityholder Representative may resign or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted replaced in accordance with Section 3.6(e) the terms of its engagement as the representative of the Company Securityholders and Section 3.6(fthe newly appointed Securityholder Representative shall deliver written notice thereof to Parent and the Paying Agent (together with reasonable evidence thereof)). Such substituted representative shall be deemed to be the Securityholder Representative for all purposes of the Transaction Documents. Such removal and appointment shall be effective upon the later of the date indicated in the written consent or the date such written consent is received by Parent and the Paying Agent. All decisions and actions by the Securityholder Representative shall be binding upon all Company Securityholders, and no Company Securityholders shall have the right to object, dissent, protest or otherwise contest the same.
(b) Parent may rely upon The Securityholder Representative shall act for the Company Securityholders on all actions taken or omitted to be taken by of the matters set forth in the Transaction Documents in the manner the Securityholder Representative pursuant believes to this Agreement and be in the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) The grant of authority provided for herein (i) is coupled with an best interest and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon themCompany Securityholders. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the The Securityholder Representative is authorized to act on behalf of the Equity Holders Company Securityholders notwithstanding any dispute or disagreement among the Company Securityholders. The Securityholder Representative shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittalindemnified, agrees that any action taken defended and held harmless by the Securityholder Representative on its behalf pursuant to the terms of this AgreementCompany Securityholders from and against, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to the Company Securityholders in respect of, any Equity Holder and all losses, liabilities, expenses, damages, claims, penalties, fines, forfeitures, actions, out-of-pocket fees, costs and expenses (including the reasonable and documented fees and expenses of counsel) (collectively, “Representative Losses”) arising out of or in connection with respect the Securityholder Representative’s execution and performance of the Transaction Documents, in each case as such Representative Loss is suffered or incurred absent the Securityholder Representative’s or its Affiliates’ gross negligence, fraud or willful misconduct. If not paid directly to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that by the Securityholder Company Securityholders, any such Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which Losses may be incurred recovered by the Securityholder Representative in responding from any Milestone Payment or Revenue Payment at such time as any such amounts would otherwise be distributable to the Company Securityholders; provided, that while this Section 6.7(b) allows the Securityholder Representative to be paid from the Milestone Payments or Revenue Payments, this does not relieve the Company Securityholders from their obligation to promptly pay such direction Representative Losses as they are suffered or taking incurred, nor does it prevent the Securityholder Representative from seeking any remedies available to it at law or otherwise, unless such actionobligations are otherwise satisfied from such Milestone Payment or Revenue Payment. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall The Company Securityholders acknowledge and agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in foregoing indemnities will survive the absence of bad faith on the part resignation or removal of the Securityholder Representative) shall be entitled to conclusively rely on Representative or the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions termination of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) Agreement. The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 Article VI are solely as a representative of the Equity Holders Company Indemnifying Parties, and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities expenses incurred by it in such capacity.
(c) For all purposes of this Agreement:
(i) Parent shall be entitled to rely conclusively on the instructions and decisions of the Securityholder Representative as to the settlement of any claims for indemnification by any Parent Indemnified Party pursuant to this Article VI, or any other actions required or permitted to be taken by the Securityholder Representative hereunder or the Paying Agency Agreement or in connection with any of the transactions and other matters contemplated hereby or thereby;
(ii) the provisions of this Section 6.7 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Securityholder may have in connection with the transactions contemplated by the Transaction Documents; and
(iii) the provisions of this Section 6.7 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Securityholder, and any references in the Transaction Documents to a Company Indemnifying Party or a Company Securityholder shall mean and include the successors to the rights of each Company Indemnifying Party or Company Securityholder thereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
Appears in 1 contract
Securityholder Representative. (a) Pursuant to the adoption of By approving this Agreement and the transactions contemplated hereby or by Company Common Stockholders representing greater than 50% executing and delivering a Letter of the outstanding shares of Company Common StockTransmittal, each Equity Holder will be deemed to Company Securityholder shall have irrevocably appointed, authorized and empowered the appointed Securityholder Representative to act as a such Person's representative for the benefit of each Equity Holder as the exclusive agent and attorney-in-fact with the power and authority to act on behalf of such Person for all purposes in connection with this Agreement, the Additional Agreements and the agreements ancillary hereto and thereto. The Securityholder Representative shall act as the representative of the Company Securityholders in respect of all matters arising under this Agreement, the Additional Agreements and the agreements ancillary hereto and thereto, and shall be authorized to act, or refrain from acting, with respect to any actions to be taken by or on behalf of the Company Securityholders or the Securityholder Representative, including to enforce any rights granted to the Company Securityholders hereunder and thereunder, in each Equity Holder case as the Securityholder Representative believes is necessary or appropriate under this Agreement, the Additional Agreements and/or the agreements ancillary hereto and thereto, for and on behalf of the Company Securityholders. The Company Securityholders shall be bound by all such actions taken by the Securityholder Representative and the Company Securityholders shall not be permitted to take any such actions.
(b) The Securityholder Representative is serving as the Securityholder Representative solely for purposes of administrative convenience, and is not personally liable for any of the obligations of the Company, any of its Subsidiaries or the Company Securityholders hereunder, and Parent (on behalf of itself and its Affiliates) agrees that it will not look to the Securityholder Representative or the underlying assets of the Securityholder Representative for the satisfaction of any obligations of the Company, any of its Subsidiaries or the Company Securityholders. The Securityholder Representative shall not be liable for any error of judgment, or any action taken, suffered or omitted to be taken, in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to performance by the Securityholder Representative of the Securityholder Representative’s duties or the exercise by the Securityholder Representative of the Securityholder Representative’s rights and remedies under this Agreement; provided, howeverany Additional Agreement or any agreement ancillary hereto or thereto, that except in the case of its intentional fraud or willful misconduct. No bond shall be required of the Securityholder Representative. The Securityholder Representative may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Securityholder Representative shall not have no obligation any duty to ascertain or to inquire as to the Equity Holders to actperformance or observance of any of the terms, except as expressly provided herein, and without covenants or conditions of this Agreement or any Additional Agreement or any agreement ancillary hereto or thereto. Without limiting the generality of the foregoing, the Securityholder Representative shall have the full power and authority to:
(i) execute to interpret all the terms and deliver provisions of this Agreement and the Additional Agreements or any agreement ancillary hereto or thereto, and to consent to any amendment hereof or thereof on behalf of the Equity Holders such waivers Company Securityholders and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;their respective successors.
(iic) enforce Each Company Securityholder, jointly and protect the rights severally, agrees to indemnify and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of hold harmless the Securityholder Representative arising out of or under or in any manner relating to this Agreement against all fees and the other Transaction Agreements expenses (including legal fees and the other agreements contemplated hereby and thereby or the Merger expenses) and other transactions provided for herein amounts payable or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated incurred by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to the performance of any of its duties under this Agreement or the Additional Agreements, including any such fees, expenses, or other Transaction Agreements amounts that may be incurred by the Securityholder Representative in connection with any Action to which the Securityholder Representative is made a party by reason of the fact it is or was acting as the Securityholder Representative pursuant to the terms of this Agreement or the Additional Agreements. Notwithstanding the foregoing in this clause (providedc), that, in no such costs, expenses or liabilities shall event will the indemnity contemplated in this clause (c) be paid from by the Company Securityholders to the Securityholder Representative in the form of Indemnification Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f))Shares released pursuant to the Indemnification Escrow Agreement.
(bd) Parent may Parent, the Indemnified Party and the Indemnified Party Representative shall be entitled to rely upon on all statements, representations, decisions of, and actions taken or omitted to be taken by by, the Securityholder Representative pursuant as being the statements, representations, decisions of, and actions of Company Securityholders with respect to the matters relating to this Agreement or any Additional Agreement or any agreement ancillary hereto or thereto. Parent, the Indemnified Party and the other Transaction Agreements, all of which actions or omissions Indemnified Party Representative shall be legally binding upon entitled to deal solely with the Equity HoldersSecurityholder Representative (and shall not be required to deal with any Company Securityholder, in his, her or its capacity as such) with respect to the matters relating to this Agreement or any Additional Agreement or any agreement ancillary hereto or thereto.
(ce) The grant Securityholder Representative may resign at any time by giving twenty (20) days’ notice to Parent and the Company Securityholders; provided, however, in the event of authority provided for herein the resignation or removal of the Securityholder Representative, a new Securityholder Representative (iwho shall be reasonably acceptable to Parent) shall be appointed by the vote or written consent of a majority of the shares of Parent Common Stock, voting together as a single class (with each such share entitled to one vote), then held by the Company Securityholders as of immediately prior to the Effective Time; provided, further, that if any such vacancy is not so filled within thirty (30) days following the occurrence of such vacancy, the Indemnified Party Representative shall be entitled to appoint a successor Securityholder Representative, and the provisions of this Section 12.19 shall apply in all respects to such successor Securityholder Representative
(f) The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy by Company Securityholders in any manner or liquidation of for any Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of themreason. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect This authority granted to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resignnot be affected by the death, dissolveillness, cease dissolution, disability, incapacity or other inability to exist or otherwise be unable act of any principal pursuant to fulfill its responsibilities any applicable Law. ▇▇▇▇ ▇▇▇▇▇ hereby accepts his appointment as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successorinitial Securityholder Representative. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any timedecision, all references herein act, consent or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action instruction taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e12.19 on behalf of Company Securityholders (each, an “Securityholder Representative Authorized Action”) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) final, binding and conclusive on Company Securityholders as fully as if such Persons had taken such Securityholder Representative Authorized Action. The parties acknowledge Indemnified Party agrees that the Securityholder Representative’s obligations under this Section 10.15 are solely , as a representative of the Equity Holders and that the Securityholder Representative Representative, shall have no personal responsibility or liability to the Indemnified Party for any expenses, costs or other liabilities incurred by it in such capacityAuthorized Action.
Appears in 1 contract
Sources: Merger Agreement (Abri SPAC I, Inc.)
Securityholder Representative. (a) Pursuant to the adoption of this Agreement by Company Common Stockholders representing greater than 50% of the outstanding shares of Company Common StockNerveda, each Equity Holder will be deemed to have irrevocably LLC is hereby appointed, authorized and empowered the Securityholder Representative to act as a representative the Securityholder Representative, for the benefit of each Equity Holder Escrow Participant, as the exclusive agent and attorney-in-fact with the power and authority to act on behalf of each Equity Holder Escrow Participant in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided hereinwith, and without limiting to facilitate the generality of the foregoingconsummation of, the Securityholder Representative shall have the power and authority to:
(i) execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and therebyTransactions, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which and make any and all decisions required or permitted to be taken or made by the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements Escrow Agreement, including the exercise of the right to (i) give and receive notices and communications under Section 6 or the Escrow Agreement; (ii) authorize delivery to Parent of a number of shares of Escrowed Securities from the Escrow Fund in satisfaction of claims for indemnification made by Parent under Section 6; (iii) object to claims for indemnification made by Parent under Section 6; (iv) agree to, negotiate, enter into settlements and compromises of and comply with mediation awards and court orders with respect to claims for indemnification made by Parent under Section 6; (v) grant any consent, waiver or approval on behalf of the Escrow Participants under this Agreement; and (vi) take all actions necessary or appropriate in the good faith judgment of the Securityholder Representative for the accomplishment of the foregoing. Each Escrow Participant irrevocably appoints the Securityholder Representative as the sole representative of the Escrow Participants to act as the agent and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient Escrow Participants in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) foregoing. 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 Equity Holder Escrow Participant and shall survive the consummation of the Merger and the Transactions. The Securityholder Representative may resign at any time by notice to Parent and the identity of the Securityholder Representative may be changed, and a successor Securityholder Representative may be appointed, from time to time (iiincluding in the event of the resignation or the death, disability or other incapacity of the Securityholder Representative) by Escrow Participants whose aggregate Participation Percentages exceed 50%, and any such successor shall succeed the Securityholder Representative as Securityholder Representative hereunder. No bond shall be required of the Securityholder Representative, and the Securityholder Representative shall receive no compensation for its services. From and after the Effective Time, a decision, act, consent or instruction of the Securityholder Representative shall be final, binding and conclusive upon each Escrow Participant and may be relied upon by Parent.
(b) The Securityholder Representative shall not be liable for any liability, loss, damage, penalty, fine, cost or expense incurred by the Securityholder 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 Escrow Participant shall, severally and not jointly and in proportion to its Participation Percentage in an amount not to exceed the proceeds actually received by such Escrow Participant in the Merger, indemnify, defend and hold harmless the Securityholder Representative and its successors and assigns from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs and expenses (including attorneys’ fees and court costs) (collectively, “Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Securityholder Representative pursuant to the terms of this Agreement, in each case as such Representative Loss is incurred or suffered. The Securityholder Representative shall be entitled to recover any Representative Losses reasonably incurred by the Securityholder Representative in connection with actions taken by the Securityholder Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel 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, immunities and powers granted to the Securityholder Representative under this Agreement shall survive the Merger and the consummation or any termination of other transactions contemplated hereby and by the other Transaction Agreementsthis Agreement.
(dc) All actions taken The Representative Losses shall be satisfied from the Securityholder Representative Reserve and, to the extent the amount of the Representative Losses exceeds the available Securityholder Representative Reserve, from each Escrow Participant, severally and not jointly and in proportion to its Participation Percentage in an amount not to exceed the proceeds actually received by such Escrow Participant in the Merger. As soon as practicable after the date on which the final obligation of the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively withEscrow Agreement have been discharged, the Securityholder Representative with respect shall remit any amounts remaining in the Securityholder Representative Reserve to any and all matters concerning any the Escrow Participants based on their Participation Percentages. For Tax purposes, Parent shall be deemed to have paid each Escrow Participant its, his or her share of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements Securityholder Representative Reserve and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and then each Escrow Participant shall be entitled deemed to rely conclusively (without further evidence of any kind whatsoever) on any document purported have voluntarily contributed such amount to the Securityholder Representative Reserve held by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination amount of the Base Merger Consideration and the Equity Holders agree Securityholder Representative Reserve that no additional consideration is returned to such Escrow Participant shall not again be required for the enforceability of the terms hereinsubject to information reporting or Tax withholding).
(fd) The parties acknowledge that From and after the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of Effective Time, Parent shall cause the Equity Holders and that Surviving Corporation to provide the Securityholder Representative shall have no personal responsibility or liability with reasonable access to information about the Surviving Corporation and the reasonable assistance of the officers and employees of Parent and the Surviving Corporation for any expenses, costs or purposes of performing its duties and exercising its rights under this Agreement and the other liabilities incurred by it in such capacityTransaction Documents.
Appears in 1 contract
Sources: Merger Agreement (Amarantus Bioscience Holdings, Inc.)
Securityholder Representative. (a) Pursuant to By virtue of the adoption approval of the First Merger and this Agreement by Company Common Stockholders representing greater than 50% the Reliant Stockholders, each of the outstanding shares of Company Common Stock, each Equity Holder will Indemnifying Parties shall be deemed to have irrevocably appointed, authorized and empowered the Securityholder Representative agreed to act appoint ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ in as a representative for the benefit of each Equity Holder as the exclusive agent their agents and attorney-in-fact with facts, as the power Securityholder Representative for and authority to act on behalf of the Indemnifying Parties to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Funds in satisfaction of claims by such Indemnified Party pursuant to Section 2.9 or Section 8.2(a), to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Indemnifying Party or by any such Indemnifying Party against any Indemnified Party or any dispute between any Indemnified Party and any such Indemnifying Party, in each Equity Holder case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to judgment of the Securityholder Representative under for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Indemnifying Party from time to time upon not less than 30 days prior written notice to Thermage; provided, however, that the Securityholder Representative shall have no obligation may not be removed unless holders of a majority of the Total As-Converted Outstanding Common Shares agree to such removal and to the Equity Holders to act, except as expressly provided herein, and without limiting identity of the generality of substituted agent. Notwithstanding the foregoing, a vacancy in the position of Securityholder Representative shall have may be filled by the power and authority to:
(i) execute and deliver on behalf holders of a majority of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation Total As-Converted Outstanding Common Shares. No bond shall be required of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder Representative shall not have receive any obligation compensation for his services. Notices or communications to take any such actions, and shall not have any liability for any failure to take any such actions);
(iii) refrain or from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement Representatives shall constitute notice to or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f))Indemnifying Parties.
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist not be liable for any act done or otherwise be unable to fulfill its responsibilities omitted hereunder as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative while acting in good faith and in the exercise of the Equity Holders hereunderreasonable judgment. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders The Indemnifying Parties shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as indemnify the Securityholder Representative and that hold the Securityholder Representative shall be under no obligation to take harmless against any action in its capacity as the Securityholder Representativeloss, unless the Securityholder Representative has been provided with funds, security liability or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be expense incurred by the Securityholder Representative in responding to such direction without gross negligence or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative and arising out of or in connection with the acceptance or administration of the Securityholder Representative) shall be entitled to conclusively rely on ’s duties hereunder, including the opinions reasonable fees and advice expenses of such persons. Without limiting Section 10.15(a)(vi), any legal counsel retained by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expensesRepresentative, disbursements and advances (including any fees and disbursements of its counsel, experts and other agents and consultants) expenses incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the connection with this Agreement (“Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconductExpenses”), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility the right to use up to One Hundred Thousand Dollars ($100,000) of the Escrow Amount in the aggregate for reasonably and appropriately documented Securityholder Representative Expenses and subordinate to the satisfaction of any then outstanding indemnification claims made pursuant to Section 8.2(a), and prior to any such distribution, shall deliver to Thermage a certificate setting forth the Securityholder Representative Expenses actually incurred. A decision, act, consent or instruction of the Securityholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 10.3 and Section 10.4 hereof, shall constitute a decision of the Indemnifying Parties and shall be final, binding and conclusive upon the Indemnifying Parties; and Thermage may rely upon any such decision, act, consent or instruction of the Securityholder Representative as being the decision, act, consent or instruction of the Indemnifying Parties. The Escrow Agent and Thermage are hereby relieved from any liability to any person for any expensesacts done by them in accordance with such decision, costs act, consent or other liabilities incurred by it in such capacityinstruction of the either of Securityholder Representative.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Thermage Inc)
Securityholder Representative. (a) Pursuant to the adoption of this Agreement by Company Common Stockholders Equity Holders representing greater than 50% of the outstanding shares of Company Common Stock, each Equity Holder will be deemed to have irrevocably appointed, authorized and empowered the Securityholder Representative to act as a representative for the benefit of each Equity Holder as the exclusive agent and attorney-in-fact with the power and authority to act on behalf of each Equity Holder in connection with and to facilitate the consummation of the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority toauthority:
(i) to execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case thereby as the Securityholder Representative, in its sole discretion, may deem necessary or desirable, including any amendments or modifications to this Agreement or the other Transaction Agreements;
(ii) to enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective TimeHolders. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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 Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) to terminate this Agreement if the Company is entitled to do so;
(vi) to give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration;
(vii) to determine whether to deliver a Notice of Disagreement and to resolve any disputes regarding the Closing Statement; and
(viviii) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), to make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including by using the Escrow Funds (and any interest or earnings thereon) to satisfy costs, expenses or and/or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (providedAgreements, thatwith any balance of the Escrow Funds not used for such purposes to be disbursed and paid, at such time as the Securityholder Representative determines, in its sole discretion, that no additional such costs, expenses or liabilities shall be paid from become due and payable, to the Escrow Account other than when and if expressly permitted Equity Holders in accordance with Section 3.6(e3.1(a)(iii) and Section 3.6(f)3.6(e).
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) 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 Equity Holder and (ii) shall survive the consummation of the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten 10 days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common StockHolders. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, thereby shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities expenses incurred by it in such capacity.
Appears in 1 contract
Securityholder Representative. (a) Pursuant to By virtue of the adoption approval of the Merger and this Agreement by Company Common Stockholders representing greater than 50% the Primaeva Stockholders, each of the outstanding shares of Company Common Stock, each Equity Holder will Indemnifying Parties shall be deemed to have irrevocably appointedagreed to appoint ▇▇▇▇▇▇▇ Healthcare V, authorized LP in as their agents and empowered attorney in facts, as the Securityholder Representative to act as a representative for the benefit of each Equity Holder as the exclusive agent and attorney-in-fact with the power and authority to act on behalf of the Indemnifying Parties to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Funds in satisfaction of claims by such Indemnified Party pursuant to Article VIII, to object to such payments, to audit and dispute Syneron’s calculation of Net Revenue and Milestone Payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Indemnifying Party or by any such Indemnifying Party against any Indemnified Party or any dispute between any Indemnified Party and any such Indemnifying Party, in each Equity Holder case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to judgment of the Securityholder Representative under for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Indemnifying Parties from time to time; provided, however, that the Securityholder Representative shall have no obligation may not be removed unless holders of a majority of the Total As-Converted Outstanding Common Shares agree to such removal and to the Equity Holders to act, except as expressly provided herein, and without limiting identity of the generality of substituted agent. Notwithstanding the foregoing, a vacancy in the position of Securityholder Representative shall have may be filled by the power and authority to:
(i) execute and deliver on behalf holders of a majority of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation Total As-Converted Outstanding Common Shares. No bond shall be required of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder Representative shall not have receive any obligation compensation for its services. Notices or communications to take any such actions, and shall not have any liability for any failure to take any such actions);
(iii) refrain or from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement Representatives shall constitute notice to or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f))Indemnifying Parties.
(b) Parent may rely upon The Securityholder Representative will not be entitled to any fee, commission or other compensation for the performance of its service hereunder, but will be entitled to the payment of all actions taken or omitted of its out-of-pocket expenses incurred as Securityholder Representative to be taken by paid from the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity HoldersReserve.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist not be liable for any act done or otherwise be unable to fulfill its responsibilities omitted hereunder as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative while acting in good faith and in the exercise of the Equity Holders hereunderreasonable judgment. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders The Indemnifying Parties shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as indemnify the Securityholder Representative and that hold the Securityholder Representative shall be under no obligation to take harmless against any action in its capacity as the Securityholder Representativeloss, unless the Securityholder Representative has been provided with funds, security liability or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be expense incurred by the Securityholder Representative in responding to such direction without gross negligence or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions Representative and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance connection with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as acceptance or administration of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative duties hereunder. A decision, act, consent or instruction of the Equity Holders Securityholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 10.3 hereof, shall constitute a decision of the Indemnifying Parties and that shall be final, binding and conclusive upon the Indemnifying Parties; and Syneron may rely upon any such decision, act, consent or instruction of the Securityholder Representative shall have no personal responsibility as being the decision, act, consent or instruction of the Indemnifying Parties. The Escrow Agent and Syneron are hereby relieved from any liability to any person for any expensesacts done by them in accordance with such decision, costs act, consent or other liabilities incurred by it in such capacityinstruction of the either of Securityholder Representative.
Appears in 1 contract
Securityholder Representative. (a) Pursuant to By virtue of the adoption approval of the Merger and this Agreement by Company Common Stockholders representing greater than 50% the requisite vote of the outstanding shares of Company Common StockShareholders, each Equity Holder will of the Shareholders shall be deemed to have irrevocably appointedagreed to appoint ▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, authorized and empowered the Securityholder Representative to act as a representative for the benefit of each Equity Holder as the exclusive her or its agent and attorney-in-fact with fact, as the power Securityholder Representative for and authority to act on behalf of the Shareholders to give and receive notices and communications, to authorize payment to any Parent Indemnified Party in satisfaction of claims by any Parent Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Parent Indemnified Party against any Shareholder or by any such Shareholder against any Parent Indemnified Party or any dispute between any Parent Indemnified Party and any such Shareholder, in each Equity Holder case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to judgment of the Securityholder Representative under for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. The Securityholder Representative will also act as a proxy for each Shareholder who elects to execute and deliver a Proxy and Voting Agreement in the form prescribed by the Securityholder Representative, granting the Securityholder Representative the right to vote the shares of Parent Common Stock held by such Shareholder following the Closing in accordance with the provisions of such Proxy and Voting Agreement with a view toward combining the voting power of those Shareholders and increasing their collective influence over the affairs of the Parent after the Effective Time. The Securityholder Representative may be changed from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Securityholder Representative shall have no obligation may not be removed unless Shareholders holding a majority of the Company Class A Common Stock (as of the Effective Time) agree to such removal and to the Equity Holders to act, except as expressly provided herein, and without limiting the generality identity of the foregoing, the Securityholder Representative substituted agent. No bond shall have the power and authority to:
(i) execute and deliver on behalf be required of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder Representative shall not have receive any obligation compensation for its services. Notices or communications to take any such actions, and shall not have any liability for any failure to take any such actions);
(iii) refrain or from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative shall constitute notice to or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f))Shareholders.
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist not be liable for any act done or otherwise be unable to fulfill its responsibilities omitted hereunder or under any Proxy and Voting Agreement as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative while acting in good faith and in the exercise of the Equity Holders hereunderreasonable judgment. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders The Shareholders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as indemnify the Securityholder Representative and that hold the Securityholder Representative shall be under no obligation to take harmless against any action in its capacity as the Securityholder Representativeloss, unless the Securityholder Representative has been provided with funds, security liability or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be expense incurred by the Securityholder Representative in responding to such direction without gross negligence or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on Representative and arising out of or in connection with the opinions and advice acceptance or administration of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expensesRepresentative’s duties hereunder or under any Proxy and Voting Agreement, disbursements and advances (including the reasonable fees and disbursements expenses of its counsel, experts and other agents and consultants) incurred any legal counsel retained by the Securityholder Representative in such capacity(“Securityholder Representative Expenses”). A decision, act, consent or instruction of the Securityholder Representative, including but not limited to an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be entitled to indemnification from final, binding and conclusive upon the Equity Holders against Shareholders; and Parent may rely upon any losssuch decision, liability act, consent or expenses arising out instruction of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except as being the decision, act, consent or instruction of the Shareholders. The Parent is hereby relieved from any liability to any person for those arising out any decision, act, consent or instruction of the Securityholder Representative’s gross negligence or willful misconduct).
(c) At the Closing, including the costs and expenses Parent shall pay $250,000 of investigation and defense of claims. The Equity Holders will indemnify the Initial Cash Consideration to the Securityholder Representative for Securityholder Representative Expenses (the “Representative Fund”). The Securityholder Representative shall maintain the Representative Fund in accordance with a separate bank account for the immediately preceding sentence benefit of the Shareholders. Any Securityholder Representative Expenses above the amount in the Representative Fund shall be paid by the Shareholders on a pro rata basis based on their respective equity interest in accordance with its, his or her Pro Rata Portion of the Merger Consideration received hereunder. Any unused funds remaining in the Company as of immediately prior Representative Fund shall be distributed to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms hereinShareholders according to their Pro Rata Portion.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacity.
Appears in 1 contract
Securityholder Representative. (a) Pursuant to By the approval and adoption of this Agreement by in the Company Common Stockholders representing greater than 50% Stockholder Approval pursuant to Delaware law and without any further action of any of the outstanding shares of Company Common StockEquity Holders or the Company, the Company Equity Holders are hereby deemed to irrevocably appoint, and by participating in the Merger and receiving the benefits thereof, each Company Equity Holder will be is hereby deemed to have and hereby does irrevocably appointedappoint Fortis Advisors LLC, authorized and empowered a Delaware limited liability company, as the Securityholder Representative to act as a representative for the benefit of each Equity Holder as the exclusive agent true and lawful attorney-in-fact with fact, exclusive agent and representative of the power and authority to act on behalf of each Company Equity Holder in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative Holders for all purposes under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without Agreement or under any other agreement contemplated hereby. Without limiting the generality of the foregoing, the Securityholder Representative shall have the has full power and authority to:
authority, on behalf of each Company Equity Holder and his, her or its successors and assigns, to (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Company Equity Holders in connection herewith, including the Escrow Agreement, (ii) execute and deliver on behalf and receive deliveries of the Equity Holders such waivers all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and consents other documents required or permitted to be given in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and Agreement, including the other Transaction AgreementsEscrow Agreement, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(viii) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement Agreement, the Escrow Agreement, (iv) agree to, negotiate and enter into settlements and compromises of, and assume the other Transaction Agreementsdefense of, including service claims, and demand arbitration and comply with Orders of process courts and awards of arbitrators with respect to such claims, and take all actions necessary or appropriate in connection with any arbitration; and
the judgement of the Securityholder Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) take all actions necessary or appropriate in the judgment of the Securityholder Representative on behalf of the Company Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement Agreement, (vii) make any determinations and settle any matters in connection with the adjustments in Section 3.5, (viii) authorize delivery to Parent of the Deficiency Amount or any portion thereof pursuant to Section 3.5, (ix) distribute the Representative Holdback Amount, (x) pay any expenses of the Company Equity Holders or the other Transaction Agreements Securityholder Representative from the Representative Holdback Amount, (xi) deduct, hold back or redirect any funds which may be payable to any Company Equity Holder pursuant to the terms of this Agreement, the Escrow Agreement, or any agreements or documents executed and delivered in connection herewith in order to pay, or establish a reserve for, any amount that may be payable by such Company Equity Holder hereunder, and (xii) do or refrain from doing the foregoing and any further act or deed on behalf of the Company Equity Holders which the Securityholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement and the Escrow Agreement. Notwithstanding the foregoing, the Securityholder Representative shall have no obligation to act on behalf of the Company Equity Holders, including to satisfy costsexcept as expressly provided herein, expenses or liabilities in the Escrow Agreement and in the Securityholder Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Securityholder Representative in connection with matters related to this Agreement any ancillary agreement, schedule, exhibit or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f))Company Disclosure Letter.
(b) Parent may rely upon all actions taken or omitted The Securityholder Representative requires that the Representative Holdback Amount be withheld and wire transferred at Closing by Borrower to the Securityholder Representative, on behalf of the Company Equity Holders, to satisfy potential future obligations of the Company Equity Holders, as further described herein. The Representative Holdback Amount shall be taken retained by the Securityholder Representative in a non-interest bearing account for such time as the Securityholder Representative shall determine in its sole discretion. The Representative Holdback Amount shall be used (i) for the purposes of paying directly or reimbursing the Securityholder Representative for any Securityholder Representative Expenses incurred pursuant to this Agreement, the Escrow Agreement or any Securityholder Representative Engagement Agreement, or (ii) as otherwise determined by the Advisory Group. The Securityholder Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Representative Holdback Amount other Transaction Agreementsthan as a result of its gross negligence or willful misconduct. The Securityholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Holdback Amount and has no tax reporting or income distribution obligations, all of which actions or omissions in connection therewith. The Company Equity Holders will not receive any interest on the Representative Holdback Amount and assign to the Securityholder Representative any such interest. Subject to Advisory Group approval, the Securityholder Representative may contribute funds to the Representative Holdback Amount from any consideration otherwise distributable to the Company Equity Holders. As soon as reasonably determined by the Securityholder Representative that the Representative Holdback Amount is no longer required to be withheld, the Securityholder Representative shall be legally binding upon distribute any remaining amounts from the Representative Holdback Amount to the Exchange Agent for further distribution to the Company Equity Holders.
(c) The grant In the event that the Securityholder Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Company Equity Holders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of authority provided for herein (i) is coupled with an interest the voting power represented by the capital stock of the Company issued and outstanding immediately prior to the Effective Time shall select another representative to fill such vacancy, and such substituted representative shall be irrevocable and survive deemed to be the death, incompetency, bankruptcy or liquidation Securityholder Representative for all purposes of any Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreementsthis Agreement.
(d) Parent and the Surviving Company shall be able to rely conclusively on any instructions given and actions taken by the Securityholder Representative as the instruction and decision of each Company Equity Holder in all matters referred to herein, and no Party or Company Equity Holder shall have any cause of action against Parent or the Surviving Company for any action taken by Parent or the Surviving Company in reliance upon the written instructions or decisions of the Securityholder Representative. The Securityholder Representative shall be entitled to: (i) rely upon the Allocation 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 Company Equity Holder or other party.
(e) Certain Company Equity Holders have entered into an engagement agreement (the “Securityholder Representative Engagement Agreement”) with the Securityholder Representative to provide direction to the Securityholder Representative in connection with its services under this Agreement, the Escrow Agreement and the Securityholder Representative Engagement Agreement (such Company Equity Holders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholder Representative nor its members, managers, directors, officers, contractors, agents and employees, nor any member of the Advisory Group (collectively, the “Securityholder Representative Group”) will be liable for any act done or omitted in connection with the acceptance or administration of the Securityholder Representative’s responsibilities under this Agreement, under the Escrow Agreement or under the Securityholder Representative Engagement Agreement while acting in good faith, except and only to the extent such action or omission constitutes gross negligence or intentional misconduct. Parent agrees that it will not look to the personal assets of the Securityholder Representative, acting in such capacity, for the satisfaction of any obligations to be performed by the Company (pre-Closing) or the Company Equity Holders or otherwise. In performing any of its duties under this Agreement or any agreements or documents executed and delivered in connection herewith, the Securityholder Representative will not be liable to the Company Equity Holders for any losses that any Person may incur as a result of any act, or failure to act, by the Securityholder Representative under this Agreement or any agreements or documents executed and delivered in connection herewith. All actions taken by the Securityholder Representative under this Agreement, the Escrow Agreement and or the other Transaction Agreements Securityholder Representative Engagement Agreement shall be binding upon all each Company Equity Holders Holder and their respective such Company Equity Holder’s successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice tosuch Company Equity Holder, and deal exclusively withall defenses which may be available to any Company Equity Holder to contest, negate or disaffirm the action of the Securityholder Representative taken in good faith under this Agreement, the Escrow Agreement or the Securityholder Representative Engagement Agreement are waived. The Company Equity Holders shall indemnify, defend and hold harmless the Securityholder Representative Group from and against any and all losses, claims, damages, liabilities, fees, costs, expenses (including reasonable, documented out of pocket fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Securityholder Representative Expenses”) incurred without gross negligence or willful misconduct on the part of the Securityholder Representative and arising out of or in connection with the acceptance or administration of its duties hereunder, under the Escrow Agreement or under the Securityholder Representative Engagement Agreement. The Company Equity Holders acknowledge that the Securityholder 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 pursuant to this Agreement, the Escrow Agreement, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Engagement Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby. Furthermore, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise not be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation required to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representativeits determination, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to performing such direction or taking such actionactions. By the execution The limitation of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counselliability, experts immunities and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled rights to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in 12.1 will survive the determination Closing, the termination of this Agreement and the resignation or removal of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability Securityholder Representative or any member of the terms hereinAdvisory Group.
(f) All Securityholder Representative Expenses shall be paid by the Company Equity Holders on a pro rata basis. The parties acknowledge Securityholder Representative shall first make payment of or recover, as applicable, such Securityholder Representative Expenses from the Representative Holdback Amount, second, from any distribution made to the Company Equity Holders from the Adjustment Escrow Amount, the Indemnity Escrow Amount or other amounts that may be distributable to the Company Equity Holders, and third, directly from the Company Equity.
(g) The provisions of this Section 12.1 are independent and severable, are irrevocable (subject to the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative right to resign) and coupled with an interest, shall survive the death, incompetence, bankruptcy or liquidation of any Company Equity Holder and shall be binding on any successor thereto, shall survive the delivery of an assignment by any Company Equity Holder of the whole or any fraction of his, her or its interest in any amounts held pursuant to the Escrow Agreement, and shall be enforceable notwithstanding any rights or remedies that any Company Equity Holders and that Holder may have in connection with the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred transactions contemplated by it in such capacitythis Agreement.
Appears in 1 contract
Sources: Merger Agreement (Skillsoft Corp.)
Securityholder Representative. (a) Pursuant to By virtue of the adoption approval of the Merger and this Agreement by Company Common Stockholders representing greater than 50% the requisite vote of the outstanding shares of Company Common StockStockholders, each Equity Holder will of the Stockholders shall be deemed to have irrevocably appointed, authorized and empowered the Securityholder Representative agreed to act appoint ▇▇▇▇ ▇▇▇▇▇ as a representative for the benefit of each Equity Holder as the exclusive its agent and attorney-in-fact with fact, as the power Securityholder Representative for and authority to act on behalf of the Escrow Participants to take all actions under this Agreement and the Paying Agent Agreement that are to be taken by the Securityholder Representative, including to amend this Agreement or the Paying Agent Agreement, to waive any provision of this Agreement or the Paying Agent Agreement, to negotiate payments due pursuant to this Article VI, to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, 105132706 v11 and comply with orders of courts with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Indemnified Party against any Escrow Participant or by any such Escrow Participant against any Indemnified Party or any dispute between any Indemnified Party and any such Escrow Participant, in each Equity Holder case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to judgment of the Securityholder Representative under for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Stockholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Securityholder Representative may not be removed unless holders of at least a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Securityholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. In the event a vacancy in the position of Securityholder Representative exists for thirty (30) or more days, Parent shall have no obligation the right, upon thirty (30) days’ prior written notice to the Equity Holders Escrow Participants, to act, except as expressly provided hereinpetition a court of competent jurisdiction to appoint a replacement Securityholder Representative. No bond shall be required of the Securityholder Representative, and without limiting the generality of the foregoing, the Securityholder Representative shall not receive any compensation for its services. Notices or communications to or from the Securityholder Representative shall constitute notice to or from the Escrow Participants.
(b) All decisions and actions of the Securityholder Representative on behalf of the Escrow Participants shall be deemed to be facts ascertainable outside of this Agreement and shall be binding upon all Escrow Participants, and no Escrow Participant shall have the right to object, dissent, protest or otherwise contest the same.
(c) The Securityholder Representative represents and warrants to Parent and to the Escrow Agent that it has the irrevocable right, power and authority to enter into and perform this Agreement.
(d) Until notified in writing by the Securityholder Representative that it has resigned, or that it has been removed by at least two-thirds in interest of the Escrow Fund, Parent and the Escrow Agent may rely conclusively and act upon the directions, instructions and notices of the Securityholder Representative named above and, thereafter, upon the directions, instructions and notices of any successor named in a writing executed by a majority-in-interest of the Escrow Fund filed with the Escrow Agent.
(e) The Company, the Escrow Participants and the Stockholders each hereby authorize the Securityholder Representative to:
(i) execute Receive all notices or documents given or to be given to the Escrow Participants or the Stockholders pursuant hereto or in connection herewith or therewith and deliver on behalf to receive and accept services of the Equity Holders legal process in connection with any suit or proceeding arising under this Agreement;
(ii) Engage counsel, and such waivers accountants and consents other advisors and incur such other expenses in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case thereby as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may in its sole discretion deem appropriate; and ▇▇▇▇▇▇▇▇▇ ▇▇▇
(▇▇▇) Take such action as the Securityholder Representative may in its sole discretion deem appropriate in respect of: (A) assert waiving any claim inaccuracies in the representations or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by warranties of Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided Sub contained in this Agreement or the in any document delivered by Parent or Sub pursuant hereto; (B) taking such other Transaction Agreements, shall be deemed a waiver of any such right or interest by action as the Securityholder Representative is authorized to take under this Agreement; (C) receiving all documents or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, make, execute, acknowledge certificates and deliver making all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, anddeterminations, in general, to do any and all things and to take any and all action that the its capacity as Securityholder Representative, in its sole required under this Agreement; and absolute discretion, (D) all such actions as may consider be necessary or proper or convenient in connection with to carry out any of the Merger and other transactions contemplated by this Agreement and Agreement, including the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service defense and/or settlement of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative for which indemnification is sought pursuant to this Agreement Article VI and any waiver of any obligation of Parent or the other Transaction AgreementsSurviving Corporation. The provisions of this Section 6.5 are independent and severable, all of which actions or omissions shall be legally binding upon the Equity Holders.
are irrevocable (csubject only to Section 6.5(b)) The grant of authority provided for herein (i) is and coupled with an interest and shall be irrevocable and survive enforceable notwithstanding any rights or remedies that any Escrow Participant may have in connection with the death, incompetency, bankruptcy or liquidation of any Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements Agreement. The provisions of this Section 6.5 shall be binding upon all Equity Holders the executors, heirs, legal representatives, personal representatives, successor trustees and their respective successors of each Escrow Participant, and assigns as if expressly confirmed any references in this Agreement to a Escrow Participant shall mean and ratified in writing by include the successors to the rights of each applicable Escrow Participant hereunder, whether pursuant to testamentary disposition, the laws of them. descent and distribution or otherwise.
(f) At the Effective Time, Parent shall serve notice to, and deal exclusively with, pay the Securityholder Representative with respect Expense Amount to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the which Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may Expense Amount shall be incurred maintained by the Securityholder Representative in responding a segregated account. The Securityholder Representative shall not be paid any fee for services to be rendered hereunder but shall be reimbursed for reasonable out-of-pocket expenses incurred in the performance of the Securityholder Representative’s duties (including the reasonable fees and expenses of counsel) under this Agreement from the Securityholder Representative Expense Amount and, if the remaining Securityholder Representative Expense Amount is insufficient to pay such expenses, from the first proceeds from Future Payments otherwise available for distribution to the Escrow Participants. Upon the determination of the Securityholder Representative that retaining any portion of the Securityholder Representative Expense Amount is no longer necessary, the Securityholder Representative shall deliver any then remaining portion of the Securityholder Representative Expense Amount (the “Securityholder Representative Account Payment”) to the Paying Agent, which will promptly pay (i) to each holder of Company Capital Stock converted pursuant to Section 1.6(b) a portion thereof equal to such direction or taking such action. By holder’s Pro Rata Portion of the execution Securityholder Representative Account Payment and (ii) to each holder of a Letter Company Option a portion thereof equal to such holder’s Pro Rata Portion of Transmittal each Equity Holder irrevocably the Securityholder Representative Account Payment (which amount shall agree be paid by the Surviving Corporation to such holder with the first payroll payment after the Surviving Corporation’s receipt of such amount and shall be subject to any applicable withholding as provided in Section 1.6(d)). The Securityholder Representative shall hold, invest, reinvest and disburse the Securityholder Representative Expense Amount in trust for all of the Escrow Participants, and the Securityholder Representative Expense Amount shall not be used for any other purpose; provided, however, that the Securityholder Representative shall be entitled may, in his sole discretion, and at any time or from time to engage such counseltime, experts and other agents and consultants as it shall deem necessary disburse up to $100,000 from the Securityholder Representative Expense Amount to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ solely for the purpose of paying or reimbursing reasonable out-of-pocket expenses incurred in connection with exercising its powers any dispute regarding the Securityholder Earnout Agreements. ▇▇▇▇▇▇▇▇▇ ▇▇▇
(▇) The Securityholder Representative shall not be liable for any act done or omitted hereunder as Securityholder Representative while acting in good faith and performing its function hereunder and (in the absence exercise of reasonable judgment. The Escrow Participants shall indemnify the Securityholder Representative and hold the Securityholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Securityholder Representative and arising out of or in connection with the acceptance or administration of the Securityholder Representative) ’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Securityholder Representative. Any such claim for indemnification shall be entitled satisfied first from any then available portion of the remaining Securityholder Representative Expense Amount and, if such amount is insufficient to conclusively satisfy any such loss, liability or expense, from the first proceeds from Future Payments otherwise available for distribution to the Escrow Participants or by a claim against the Escrow Participants (with each Escrow Participant liable for the Pro Rata Portion of any such claim that is represented by such Escrow Participant’s Company Capital Stock and Company Equity Awards). A decision, act, consent or instruction of the Securityholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Escrow Participants and shall be final, binding and conclusive upon the Escrow Participants; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Securityholder Representative as being the decision, act, consent or instruction of the Escrow Participants. The Escrow Agent, Parent, Sub and each of their respective affiliates are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Securityholder Representative.
(h) Solely to the extent required to validate the calculation of Losses set forth on the opinions any Officer’s Certificate or to defend a Third Party Claim pursuant to, and advice of such persons. Without limiting in accordance with, Section 10.15(a)(vi6.4(e), by the execution Securityholder Representative shall have reasonable access to relevant information about the Company and Parent and the reasonable assistance of a Letter the Company’s and Parent’s employees for purposes of Transmittal each Equity Holder irrevocably shall agree performing the Securityholder Representative’s duties and exercising the Securityholder Representative’s rights hereunder; provided, that the Securityholder Representative shall be entitled treat confidentially and not disclose any nonpublic information from or about the Company to reimbursement for all expenses, disbursements and advances anyone except (including fees and disbursements of its counsel, experts and other agents and consultantsi) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against connection with any loss, liability or expenses disputes arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative connection with this Agreement and (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence ii) on a pro rata need-to-know basis based on their respective equity interest to individuals who agree to treat such information confidentially and execute a customary non-disclosure agreement in the Company as of immediately prior to form provided by the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms hereinParent.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacity.
Appears in 1 contract
Sources: Draft Agreement (Rovi Corp)
Securityholder Representative. (a) Pursuant to Immediately upon the adoption approval of this Agreement by the Company Common Stockholders representing greater than 50% of the outstanding shares of Company Common StockHolder Approval, each Equity Holder will shall be deemed to have irrevocably appointed, authorized and empowered consented to the Securityholder appointment of Shareholder Representative to act as a representative for the benefit of each Equity Holder Services LLC as the exclusive representative, agent and attorney-in-fact of the Securityholders (the “Securityholder Representative”), with the full power and authority of substitution to act on behalf of each Equity Holder in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned Securityholders to the Securityholder Representative under extent and in the manner set forth in this Agreement; provided, howeverthe Escrow Agreement and any agreements ancillary to the foregoing. To the fullest extent permitted by Law, that all decisions, actions, consents and instructions by the Securityholder Representative shall have be binding upon the Securityholders and no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative such Person shall have the power right to object to, dissent from, protest or otherwise contest any such decision, action, consent or instruction. The Parent and authority to:
(i) execute and deliver Merger Sub shall be entitled to conclusively rely on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and therebyany decision, including any amendments action, consent or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests instruction of the Securityholder Representative arising out of as being the decision, action, consent or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf instruction of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writingsSecurityholders, and, in generalto the fullest extent permitted by Law, the Parent and Merger Sub are hereby relieved from any liability to do any and all things and to take any and all action that the Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated Person for acts done by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted them in accordance with Section 3.6(e) and Section 3.6(f))any such decision, act, consent or instruction.
(b) Parent The Securityholder Representative may rely upon all actions taken resign at any time, and may be removed for any reason or omitted to be taken no reason by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders Securityholders holding a majority of the outstanding shares aggregate Fully Diluted Share Number as of Company Common Stockthe Effective Time (the “Majority Holders”). Each Equity Holder upon In the execution event of a Letter the death, incapacity, resignation or removal of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this AgreementRepresentative, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the new Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred appointed by the Securityholder Representative in responding to vote or written consent of the Majority Holders. Notice of such direction vote or taking a copy of the written consent appointing such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the new Securityholder Representative shall be entitled sent to engage the Parent and, after the Effective Time, to the Surviving Corporation, such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in appointment to be effective upon the absence of bad faith on the part later of the Securityholder Representative) date indicated in such consent or the date such consent is received by the Parent and, after the Effective Time, the Surviving Corporation; provided that until such notice is received, the Parent, Merger Sub and the Surviving Corporation, as applicable, shall be entitled to conclusively rely on the opinions decisions, actions, consents and advice instructions of the prior Securityholder Representative as described in Section 2.15(a).
(c) The Securityholder Representative shall not be liable to the Securityholders for actions taken or omitted in connection with this Agreement, the Escrow Agreement or any agreements ancillary to the foregoing, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence, willful misconduct, or fraud. The Securityholders shall severally, but not jointly (based on each Securityholder’s Pro Rata Percentage), indemnify, defend and hold harmless the Securityholder Representative from and against any and all losses, liabilities, claims, penalties, fines, forfeitures, actions, damages, fees, costs and expenses, including reasonable attorneys’ fees (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) and disbursements (collectively, “Representative Losses”), arising out of and in connection with its activities as Securityholder Representative under this Agreement, the Escrow Agreement or otherwise, in each case as such Representative Losses are suffered or incurred; provided, that in the event that any such Representative Loss is adjudicated to have been directly caused by the gross negligence, fraud, or willful misconduct of the Securityholder Representative, the Securityholder Representative will reimburse the Securityholders the amount of such personsindemnified Representative Loss to the extent attributable to such gross negligence, fraud, or willful misconduct. Without limiting Section 10.15(a)(vi), If not paid directly to the Securityholder Representative by the execution Securityholders, any such Representative Losses may be recovered by the Securityholder Representative (i) first from the funds in the Expense Fund and (ii) after the exhaustion of a Letter the amounts in the Expense Fund, from the amounts in the Indemnity Escrow Fund, but only at such time as such amounts in the Indemnity Escrow Fund are otherwise distributable to the Securityholders pursuant to the terms hereof and the Escrow Agreement because all claims for indemnification hereunder against such amounts have been fully resolved, in accordance with written instructions delivered by the Securityholder Representative to the Escrow Agent; provided that while this Section 2.15(c) allows the Securityholder Representative to be paid from the Expense Fund and the Indemnity Escrow Fund, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as such Representative Losses are suffered or incurred, nor does it prevent the Securityholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Securityholder Representative be required to advance its own funds on behalf of Transmittal each Equity Holder irrevocably shall the Securityholders or otherwise. The Securityholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Securityholder Representative or the termination of this Agreement.
(d) The approval of this Agreement by the Company Holder Approval shall also be entitled deemed to reimbursement constitute approval of all arrangements relating to the transactions contemplated hereby and to the provisions hereof binding upon the Securityholders, including the covenants and agreements included in Section 7.2.
(e) The Expense Fund will be controlled by the Securityholder Representative solely for all expenses, disbursements and advances (including fees and disbursements payment of its counsel, experts and other agents and consultants) the Representative Losses incurred by the Securityholder Representative in connection with this Agreement, the Escrow Agreement and any agreements ancillary to the foregoing. The Securityholder Representative will retain the Expense Fund during such capacity, period as any portion of the Indemnity Escrow Fund is held by the Escrow Agent and shall be entitled to indemnification from for such further period where the Equity Holders against any loss, liability or expenses arising out services of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior are required pursuant to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in Agreement, the determination of Escrow Agreement and any agreements ancillary to the Base Merger Consideration foregoing, and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility sole discretion regarding the use such funds to pay the fees and expenses incurred by the Securityholder Representative in the performance of its duties (as determined in its sole discretion); provided, however following such period and with the consent of the Securityholder Representative, the remaining amounts in the Expense Fund will be distributed to the Paying Agent for further distribution to the Participating Securityholders (in accordance with their respective Pro Rata Percentages). The Securityholders will not receive any interest or liability earnings on the Expense Fund and irrevocably transfer and assign to the Securityholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Securityholder Representative will not be liable for any expensesloss of principal of the Expense Fund other than as a result of its fraud or willful misconduct. The Securityholder Representative will hold these funds separate from its corporate funds, costs will not use these funds for its operating expenses or any other liabilities incurred corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by it in such capacitythe Securityholders at the time of Closing.
Appears in 1 contract
Sources: Merger Agreement (NICE Ltd.)
Securityholder Representative. (a) Pursuant to By virtue of the adoption approval of this Agreement by Company Common Stockholders representing greater than 50% the requisite vote or written consent of the outstanding shares Stockholders and the terms of Company Common Stockthe Support Agreements, the Option Surrender Agreements and Warrant Surrender Agreements, each Equity Holder will Indemnifying Party shall be deemed to have irrevocably appointed, authorized and empowered consented to the appointment of Fortis Advisors LLC as the Securityholder Representative to act as a representative for the benefit of each Equity Holder Representative, as the exclusive agent and attorney-in-fact with for and on behalf of each such Securityholder, and the taking by the Securityholder Representative of any and all actions and the making of any decisions required or permitted to be taken by the Securityholder Representative under this Agreement, including the exercise of the power to: (i) execute and deliver this Agreement any amendment thereof or waiver thereunder; (ii) authorize delivery to Parent of amounts in satisfaction of any Adjustment Escrow Amount; (iii) authorize delivery to Parent of amounts in satisfaction of Indemnification Claims; (iv) agree to, negotiate, enter into settlements and compromises of and comply with Orders and awards of arbitrators with respect to Indemnification Claims; (v) resolve any Indemnification Claims; (vi) administer the Relinquishment Agreements, including resolving any claims thereunder, and (vii) take all actions necessary in the judgment of the Securityholder Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, the Securityholder Representative Engagement Agreement and the Relinquishment Agreements. Accordingly, the Securityholder Representative has unlimited authority and power to act on behalf of each Equity Holder in connection Securityholder with respect to this Agreement and the Mergerdisposition, which shall include settlement or other handling of all Indemnification Claims, rights or obligations arising from and taken pursuant to this Agreement or the power and authority as is necessary to carry out Relinquishment Agreements. Notwithstanding the functions assigned to the Securityholder Representative under this Agreement; providedforegoing, however, that the Securityholder Representative shall have no obligation to act on behalf of the Equity Holders to actIndemnifying Parties, except as expressly provided herein, in the Escrow Agreement and without limiting the generality of the foregoing, in the Securityholder Representative shall have the power and authority to:
(i) execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or thereinEngagement Agreement, and to take any and all actions which the Securityholder Representative believes for purposes of clarity, there are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities obligations of the Securityholder Representative in connection with matters related to this Agreement any ancillary agreement, schedule, exhibit or the other Transaction Agreements (providedCompany Disclosure Schedule. The Securityholders, that, no and such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective Indemnifying Party’s successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice tosuch Indemnifying Party, and deal exclusively withwill be bound by all actions taken by the Securityholder Representative in connection with this Agreement, the Securityholder Representative Engagement Agreement and the Relinquishment Agreements, and all defenses which may be available to any Indemnifying Party to contest, negate or disaffirm the action of the Securityholder Representative taken in good faith under this Agreement, the Escrow Agreement or the Securityholder Representative Engagement Agreement are waived. Parent shall be entitled to rely on any action or decision of the Securityholder Representative. Certain Indemnifying Parties have entered into an engagement agreement (the “Securityholder Representative Engagement Agreement”) with the Securityholder Representative to provide direction to the Securityholder Representative in connection with its services under this Agreement, the Escrow Agreement and the Securityholder Representative Engagement Agreement (such Indemnifying Party, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholder Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholder Representative Group”) will incur any Liability with respect to any action taken or suffered by the Securityholder Representative in reliance upon any notice, direction, instruction, consent, statement or other document believed by the Securityholder Representative to be genuine and to have been signed by the proper Person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except the Securityholder Representative’s own intentional misconduct, bad faith or gross negligence. In all questions arising under this Agreement or the Relinquishment Agreements, the Securityholder Representative may: (i) rely on the advice of counsel, and the Securityholder Representative will not be liable to Securityholders or Key Employees for anything done, omitted or suffered in good faith by the Securityholder Representative based on such advice, (ii) rely upon the Closing Spreadsheet, (iii) rely upon any signature believed by it to be genuine, and (iv) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Indemnifying Party or other party. If and to the extent any such appointment of the Securityholder Representative is revoked, such revocation shall be considered a breach of this Agreement and Parent shall be entitled to any such resulting Losses from such revocation. Each Indemnifying Party shall indemnify, defend and hold harmless the Securityholder Representative Group against such Indemnifying Party’s Pro Rata Portion of any and all matters concerning any losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment and costs in connection with seeking recovery from insurers) (collectively, the Equity Holders “Representative Losses”) arising out of or related in connection with the Securityholder Representative’s execution and performance of this Agreement and the other Transaction Documents, in each case as such Representative Loss is suffered or incurred; provided, however, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by gross negligence or intentional misconduct of the Securityholder Representative, the Securityholder Representative will reimburse the Indemnifying Parties the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or intentional misconduct. If not paid directly to the Securityholder Representative by the Indemnifying Parties, any such Representative Losses may be recovered by the Securityholder Representative from the Expense Fund; provided that while this Section 7.3(a) allows the Securityholder Representative to be paid from the Expense Fund, this does not relieve the Indemnifying Parties from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Securityholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Securityholder Representative be required to advance its own funds on behalf of the Indemnifying Parties or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement, the Securityholder Representative Engagement Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby. Furthermore, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise not be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation required to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representativeits determination, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to performing such direction or taking such actionactions. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall The Indemnifying Parties acknowledge and agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in foregoing indemnities will survive the absence of bad faith on the part resignation or removal of the Securityholder Representative) shall be entitled to conclusively rely on Representative or any member of the opinions Advisory Group and advice the Closing and/or the termination of such personsthis Agreement. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the The initial Securityholder Representative may appoint a successor Securityholder Representative, and such appointment shall be entitled become effective upon written notice to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Parent. The Securityholder Representative in such capacity, may be removed by action of Indemnifying Parties who collectively held a majority of the Shares that were issued and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company outstanding as of immediately prior to the ClosingEffective Time. For In the avoidance event of doubtthe resignation, removal, death or incapacity of the provisions Securityholder Representative, a successor Securityholder Representative shall thereafter be appointed by vote or written consent of a majority of the Indemnifying Parties. Any new or successor Securityholder Representative will assume all rights and obligations of the initial Securityholder Representative under this Section 10.15(eAgreement. The powers, immunities and rights to indemnification granted to the Securityholder Representative Group hereunder: (i) are contemplated coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Indemnifying Party and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Indemnifying Party of the whole or any fraction of his, her or its interest in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms hereinIndemnity Escrow Fund.
(fb) In furtherance of the foregoing, each Indemnifying Party hereby authorizes Parent to withhold or cause to be withheld an aggregate amount in cash equal to $250,000 (the “Expense Amount”) from the amounts otherwise payable by Parent to the Indemnifying Parties pursuant to Section 1.6, with each Indemnifying Party contributing an amount equal to such Indemnifying Party’s Pro Rata Portion of the Expense Amount. For Tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Indemnifying Parties at the time of the Closing. Promptly following the Effective Time, Parent shall cause the Exchange Agent to deliver to the account of the Securityholder Representative set forth in the Closing Spreadsheet, an amount in cash equal to the Expense Amount (such funds being referred to herein as the “Expense Fund”), provided that the Exchange Agent shall have first received an IRS Form W-9 duly executed by the Securityholder Representative and such know-your-customer information as the Exchange Agent may request to comply with Applicable Law, in each case, in form and substance reasonably satisfactory to the Exchange Agent. The parties acknowledge Indemnifying Parties shall hold harmless and indemnify the Indemnified Parties from and against any Losses relating to the deduction of the Expense Amount from the consideration payable to the Indemnifying Parties pursuant to this Agreement. The Expense Fund will be used: (i) for the purposes of paying directly or reimbursing the Securityholder Representative for and Representative Losses pursuant to this Agreement, the Securityholder Representative Engagement Agreement, the Relinquishment Agreements and the other Transaction Documents or (ii) as otherwise directed by the Advisory Group. The Indemnifying Parties will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Securityholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Securityholder Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or intentional misconduct. The Securityholder Representative will hold these funds separate from its own funds, will not use these funds for its own purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. Subject to Advisory Group approval, the Securityholder Representative may contribute funds to the Expense Fund from any consideration otherwise distributable to the Indemnifying Parties. As soon as practicable following the completion of the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that responsibilities, the Securityholder Representative shall have no personal responsibility or liability for any expenseswill deliver the balance of the Expense Fund to the Indemnifying Parties, costs or other liabilities incurred by it in such capacityaccordance with their Pro Rata Portions.
Appears in 1 contract
Securityholder Representative. (a) Pursuant Securityholders agree that it is desirable to the adoption of this Agreement by Company Common Stockholders representing greater than 50% of the outstanding shares of Company Common Stock, each Equity Holder will be deemed to have irrevocably appointed, authorized and empowered designate the Securityholder Representative to act as a representative for the benefit of each Equity Holder as the exclusive agent and attorney-in-fact with the power and authority to act for and on behalf of each Equity Holder Securityholders, and for the taking by the Securityholder Representative of any actions and the making by the Securityholder Representative of any decisions required or permitted to be taken by Securityholders under or contemplated by this Agreement or any of the other Transaction Documents, including any amendment or waiver of the terms hereof or thereof. Securityholders have designated ▇▇▇▇▇▇ ▇▇▇▇▇ as the initial Securityholder Representative, and the execution and delivery of this Agreement by Securityholders constitutes, to the maximum extent permitted under applicable Legal Requirements, irrevocable ratification and approval of such designation by Securityholders and authorization of the Securityholder Representative to serve in connection such capacity (including to negotiate and settle any and all disputes with Buyer and its Affiliates under this Agreement), and also constitutes a reaffirmation, approval, acceptance, and adoption of, and an agreement to comply with and perform, all of the Mergeracknowledgments and agreements made by the Securityholder Representative on behalf of Securityholders in this Agreement and the other Transaction Documents. By executing this Agreement, which the Securityholder Representative accepts the foregoing designation. The Securityholder Representative may resign at any time and the Securityholder Representative may be removed by the vote of those Securityholders whose aggregate Pro Rata Percentages exceed fifty percent (50%) of the aggregate Pro Rata Percentages of all Securityholders. The designation of the Securityholder Representative is coupled with an interest and, except as set forth in the immediately preceding sentence, such designation is irrevocable and will not be affected by the death, incapacity, illness, bankruptcy, dissolution, or other inability to act of any Securityholder. In the event that a Securityholder Representative has resigned or been removed, a new Securityholder Representative shall include be promptly appointed by the power vote of those Securityholders whose aggregate Pro Rata Percentages exceed fifty percent (50%) of the aggregate Pro Rata Percentages of all Securityholders, such appointment to become effective upon the written acceptance thereof by the new Securityholder Representative. Written notice of any such resignation, removal, or appointment of a Securityholder Representative shall be delivered by the Securityholder Representative to Buyer promptly after such action is taken, and neither Buyer nor any of its Affiliates will be charged with knowledge of such resignation, removal, or appointment until Buyer’s actual receipt of such written notice.
(b) The Securityholder Representative will have such powers and authority as is are necessary or appropriate to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that Agreement and in any other Transaction Document. Buyer and its Affiliates are entitled to rely on the actions taken by the Securityholder Representative shall have no obligation to without independent inquiry into the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority to:
(i) execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests capacity of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or thereinso act. All actions, notices, communications, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest determinations by the Securityholder Representative or by the Equity Holders unless to carry out such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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, functions will conclusively be deemed to do any and all things and to take any and all action that the Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreementshave been authorized by, and all other agreementswill be binding upon, documents Securityholders, and no Securityholder has any right to object, dissent, protest, or instruments referred otherwise consent to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of same. Neither the Securityholder Representative in connection nor any of its Representatives will have any Liability to Securityholders with matters related respect to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreementsin such capacity (or by any of its Representatives in connection therewith), all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative except with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the ’s willful misconduct. The Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall will be entitled to engage such counsel, experts experts, and other agents and consultants as it shall deem the Securityholder Representative deems necessary in connection with exercising its the Securityholder Representative’s powers and performing its the Securityholder Representative’s function hereunder and (in the absence of bad faith willful misconduct on the part of the Securityholder Representative) shall be is entitled to conclusively rely on the opinions and advice of such personsPersons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the The Securityholder Representative shall be is entitled to full reimbursement for all expenses, disbursements disbursements, and advances (including fees and disbursements of its counsel, experts experts, and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to full indemnification from the Equity Holders against any loss, liability or expenses Damages arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of the Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims, from Securityholders. The Equity Holders will indemnify In furtherance of the foregoing, notwithstanding anything in this Agreement to the contrary, the Securityholder Representative has the power and authority to set aside and retain additional funds paid to or received by the Securityholder Representative, or direct payment of additional funds to be paid to any of Securityholders pursuant to this Agreement at the Closing or thereafter, to satisfy such Damages (including to establish such reserves as the Securityholder Representative determines in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior good faith to the Closing. For the avoidance of doubt, the be appropriate for such costs and expenses that are not then known or determinable).
(c) The provisions of this Section 10.15(e7.11 in no way impose any obligations on Buyer or any of its Affiliates. In particular, notwithstanding any notice received by Buyer or any of its Affiliates to the contrary, Buyer and its Affiliates (i) are contemplated fully protected in the determination relying upon and are entitled to rely upon, and will have no Liability to any Securityholder with respect to, actions, omissions to act, decisions, and determinations of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 , (ii) are solely as a representative entitled to assume that all actions, omissions to act, decisions, and determinations of the Equity Holders and that the Securityholder Representative shall have no personal responsibility are fully authorized by Securityholders, and (iii) are entitled to deal exclusively with the Securityholder Representative on all matters relating to this Agreement and the other Transaction Documents. All deliveries made by Buyer or liability any of its Affiliates to the Securityholder Representative or at the direction of the Securityholder Representative are made on behalf of Securityholders and constitute full performance of the delivery obligations of Buyer and its Affiliates under this Agreement and the other Transaction Documents. Neither Buyer nor any of its Affiliates will be liable for any expenses, costs or other liabilities incurred by it in allocation of particular deliveries and payments of such capacityamounts at the direction of the Securityholder Representative.
Appears in 1 contract
Sources: Stock Purchase Agreement (Computer Programs & Systems Inc)
Securityholder Representative. (a) Pursuant to the adoption of this Agreement by Company Common Stockholders representing greater than 50% of the outstanding shares of Company Common Stock, each Equity Holder will be deemed to have Each Securityholder hereby irrevocably appointed, authorized and empowered appoints the Securityholder Representative to act as a representative for the benefit of each Equity Holder as the exclusive agent and such Securityholder’s representative, attorney-in-fact and agent, with full power of substitution to act in the power name, place and authority stead to act on behalf of each Equity Holder such Securityholder in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under any amendment of or litigation or arbitration involving this Agreement; provided, howeverincluding, that the without limitation, defending, negotiating, settling or otherwise dealing with claims under ARTICLE IX hereof, and to do or refrain from doing all such further acts and things, and to execute all such documents, as such Securityholder Representative shall have no obligation deem necessary or appropriate in conjunction with any of the transactions contemplated by this Agreement (subject to the Equity Holders to actforegoing limitation), except as expressly provided hereinincluding, and without limiting the generality of the foregoinglimitation, the Securityholder Representative shall have the power and authority topower:
(i) execute and deliver on behalf of the Equity Holders such waivers and consents to take all action necessary or desirable in connection with this Agreement and the other Transaction Agreements and waiver of any condition to the consummation obligations of the Merger and other Securityholders to consummate the transactions contemplated hereby and thereby, including any amendments or modifications to by this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirableAgreement;
(ii) enforce to negotiate, execute and protect deliver all ancillary agreements, statements, certificates, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the rights and interests consummation of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to transactions contemplated by this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that such Securityholder shall execute and deliver any such documents which the Securityholder Representative shall not have any obligation agrees to take any such actions, and shall not have any liability for any failure to take any such actionsexecute);
(iii) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitrationtransactions contemplated hereby; and
(viiv) to take all actions which under this Agreement and the transactions contemplated hereby may be taken by the Securityholders and to do or refrain from doing any further act or deed on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of Securityholder which the Securityholder Representative deems necessary or appropriate in connection with matters related its sole discretion relating to the subject matter of this Agreement or and the other Transaction Agreements (provided, that, no transactions contemplated hereby as fully and completely as such costs, expenses or liabilities shall be paid from the Escrow Account other than when and Securityholder could do if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f))personally present.
(b) Parent may rely upon all actions The Securityholder Representative will not be liable to the Securityholders for any action taken or omitted to be taken by the Securityholder Representative pursuant to him as permitted under this Agreement and the other Transaction Agreementstransactions contemplated hereby, all except if such action is taken or omitted in bad faith, by willful misconduct or due to gross negligence or constitutes a breach of which actions the Securityholder Representative Agreement. The Securityholder Representative will also be fully protected against the Securityholders in relying upon any written notice, demand, certificate or omissions shall document that he in good faith believes to be legally binding upon the Equity Holdersgenuine (including facsimiles thereof).
(c) The grant of authority provided for herein (i) is coupled Indemnifying Securityholders agree, in accordance with an interest and shall be irrevocable and survive the deaththeir respective Escrow Pro Rata Share, incompetency, bankruptcy or liquidation of any Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by to indemnify the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice tofor, and deal exclusively with, to hold the Securityholder Representative with respect to harmless against, any and all matters concerning any of the Equity Holders arising out of loss, liability or related to this Agreement expense incurred without willful misconduct, bad faith, gross negligence or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations breach of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith Agreement on the part of the Securityholder Representative, arising out of or in connection with the Securityholder Representative’s carrying out his duties under this Agreement and the transactions contemplated hereby, including costs and expenses (which may be funded from the Expense Fund or any amount payable to the Securityholders pursuant to Section 3.7 or any portion of the Escrow Fund payable to the Indemnifying Securityholders pursuant to the terms of this Agreement and the Escrow Agreement, if any, in either case, solely if and to the extent not subject to any claims for indemnification by any Buyer Indemnified Party) shall be entitled to conclusively rely on of successfully defending the opinions Securityholder Representative against any claim of liability with respect thereto. The Securityholder Representative may consult with counsel of his own choice and advice will have full and complete authorization and protection for any action taken and suffered by it in good faith and in accordance with the opinion of such persons. Without limiting Section 10.15(a)(vi)counsel.
(d) In acting hereunder, by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for act on behalf of all expenses, disbursements Securityholders and advances not on behalf of any one Securityholder.
(including fees and disbursements of its counsel, experts and other agents and consultantse) incurred by If the Securityholder Representative in becomes unable to serve as Securityholder Representative, such capacityother Person or Persons as may be designated by a majority of the Securityholders, based on each Securityholder’s Pro Rata Share, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity succeed as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacity.
Appears in 1 contract
Securityholder Representative. (a) Pursuant to By virtue of execution and delivery of a Joinder Agreement, and the adoption of this Agreement by Company Common Stockholders representing greater than 50% and the approval of the outstanding shares of Merger by the Company Common StockSecurityholders, each Equity Holder will of the Company Securityholders shall be deemed to have irrevocably appointed, authorized and empowered agreed to appoint Shareholder Representative Services LLC as the Securityholder Representative Representative, to act as a representative for the benefit of each Equity Holder as the its, his or her exclusive agent and attorney-in-fact with the authority (but subject to the limitations on authority set forth in this Agreement) to: (i) give and receive notices and communications to or from Acquiror or any other Acquiror Indemnified Party relating to this Agreement or any of the transactions and other matters contemplated hereby or thereby (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by the Company Securityholders individually); (ii) authorize Acquiror to retain and set-off against all or any portion of the Total Earnout Consideration in satisfaction of claims requiring payment to any Acquiror Indemnified Party (including Acquiror on behalf of itself or any other Acquiror Indemnified Party), including by not objecting to such claims; (iii) object to any claims for indemnification, compensation, or reimbursement under this Article VIII, including those directly against Seller Indemnifying Parties; (iv) consent or agree to, negotiate, enter into settlements and compromises of, and represent the interests of the Seller Indemnifying Parties in any dispute relating to, and comply with Orders with respect to, any claims for indemnification, compensation, or reimbursement under this Article VIII; and (v) take all actions necessary or appropriate in the judgment of the Securityholder Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance; provided, however, that for clarity, in no event shall the Securityholder Representative, through such settlements and compromises, or otherwise, increase any Seller Indemnifying Party’s indemnification obligations beyond that expressly contemplated by this Agreement. The Securityholder Representative shall only have the power and authority to act on behalf regarding matters pertaining to the Company Securityholders as a group and not individually, and shall not have power or authority to treat any particular Company Securityholder in a manner different from any other Company Securityholder (except as consistent with such Company Securityholder’s Closing Pro Rata Portion or Overall Pro Rata Portion). The Securityholder Representative shall not have any power or authority to bind any Company Securityholder to any obligations or restrictions applicable to such Company Securityholder beyond the subject matter of each Equity Holder an Indemnifiable Matter, the determination of the Final Total Closing Cash Consideration and the determination of Total Earnout Consideration. The Person serving as the Securityholder Representative may be replaced from time to time by a vote of the Persons then holding an Overall Pro Rata Portion greater than two-thirds (2/3) of the aggregate of all Overall Pro Rata Portions. The Securityholder Representative may resign at any time in accordance with the terms of the Securityholder Representative’s engagement letter. [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
(b) The Securityholder Representative will incur no liability of any kind with respect to any action or omission by the Securityholder Representative in connection with its services pursuant to this Agreement and the agreements ancillary hereto, except in the event of liability directly resulting from the Securityholder Representative’s gross negligence, fraud, willful misconduct or bad faith. The Company Securityholders shall severally, but not jointly (in accordance with their respective Overall Pro Rata Portions) indemnify the Securityholder Representative and hold the Securityholder Representative harmless against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the MergerSecurityholder Representative’s execution and performance of this Agreement and any agreements ancillary hereto, which shall include in each case as such Representative Loss is suffered or incurred; provided, that in the power event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence, willful misconduct, fraud or bad faith of the Securityholder Representative, the Securityholder Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence, willful misconduct, fraud or bad faith. If not paid directly to the Securityholder Representative by the Company Securityholders, any such Representative Losses may be recovered by the Securityholder Representative from (i) the funds in the Expense Fund, (ii) the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Company Securityholders, and authority (iii) from the Total Earnout Consideration at such time as is necessary any such amounts would otherwise be distributable to carry out the functions assigned Company Securityholders; provided, that while this section allows the Securityholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Company Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Securityholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Securityholder Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Securityholder Representative under this Agreement; providedsection. The foregoing indemnities will survive the Closing, however, that the resignation or removal of the Securityholder Representative shall have no obligation or the termination of this Agreement.
(c) Notwithstanding anything to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoingcontrary in this Agreement or any Related Agreement, the Securityholder Representative shall only have the power or authority to act regarding matters pertaining to the Company Securityholders as a group and authority to:
(i) execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and therebynot individually and, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder Representative shall not have power or authority to treat any obligation particular Company Securityholder in a manner different from any other Company Securityholder (except to take any such actions, and shall not have any liability for any failure to take any such actions);
(iii) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions extent expressly contemplated by this Agreement and or such Related Agreement) without the other Transaction Agreementsparticular Company Securityholder’s consent, and all other agreementswhich will not be unreasonably withheld, documents conditioned or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closingdelayed. For the avoidance of doubt, the provisions Securityholder Representative consenting to all or a portion of this Section 10.15(e) are contemplated in an Indemnifiable Matter, the final determination of Final Closing Cash Consideration, or the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability final determination of Total Earnout Consideration, or entering into a settlement agreement with respect to any of the terms hereinforegoing, in accordance with the procedures, limitations of liability and Securityholder Representative authority set forth in this Agreement (as of the Agreement Date and as amended in compliance with Section 7.3) shall not be deemed to implicate or require the prior written approval of a Company Securityholder pursuant to the previous sentence.
(fd) The parties acknowledge After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Securityholder Representative that is within the scope of the Securityholder Representative’s obligations authority under this Section 10.15 are solely Agreement shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. consent, settlement, resolution or instruction of all the Seller Indemnifying Parties and shall be final, binding and conclusive upon each such Seller Indemnifying Party; and each Acquiror Indemnified Party shall be entitled to rely upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a representative notice or communication to or by, or a decision, action, failure to act within a designated period of the Equity Holders time, agreement, consent, settlement, resolution or instruction of each and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in every such capacitySeller Indemnifying Party.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Quotient Technology Inc.)
Securityholder Representative. (a) Pursuant to the adoption For purposes of this Agreement by Company Common Stockholders representing greater than 50% Agreement, the Securityholders without any further action on the part of the outstanding shares of Company Common Stockany such parties, each Equity Holder will shall be deemed to have irrevocably appointed, authorized and empowered consented to the appointment of the Securityholder Representative to act as a representative for the benefit of each Equity Holder Representative, as the exclusive agent and attorney-in-fact with for and on behalf of each such Securityholder, and the taking by the Securityholder Representative of any and all actions and the making of any decisions required or permitted to be taken by the Securityholder Representative under this Agreement, including the exercise of the power to (a) prepare, execute and deliver any document, certificate or other instrument required to be delivered by or on behalf of the Securityholders pursuant to this Agreement or the Escrow Agreements and any amendments hereto and thereto, (b) authorize delivery to Acquiror of the Escrow Amount and the Working Capital Escrow Amount, or any portion thereof, in satisfaction of Indemnification Claims and payment of any Adjustment Amount due, respectively, (c) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to Indemnification Claims and disputes relating to the Earn-Out, and pursue remedies and Actions in connection with any alleged breach of this Agreement, (d) resolve any Indemnification Claims, (e) make and settle determinations and calculations with respect to distributions and allocations of the Total Merger Consideration and any portion thereof, including, the Working Capital Adjustment, the Earn-Out Amounts, the Escrow Amount, the Working Capital Adjustment Amount and the Securityholder Representative Expense Amount, (f) give and receive notices and communications hereunder, and (g) take all actions necessary in the judgment of the Securityholder Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement and the Escrow Agreements or that are specifically mandated by the terms of this Agreement or the Securityholder Representative Engagement Agreement. Accordingly, Securityholder Representative has unlimited authority and power to act on behalf of each Equity Holder in connection Securityholder with the Merger, which shall include the power and authority as is necessary respect to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority to:
(i) execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Escrow Agreements and the consummation disposition, settlement or other handling of the Merger all Indemnification Claims, rights or obligations arising from and other transactions contemplated hereby and thereby, including any amendments or modifications taken pursuant to this Agreement or the other Transaction Escrow Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the . Securityholders will be bound by all actions taken by Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements Escrow Agreements, and Acquiror and the Surviving Corporation shall be entitled to rely on any action or on behalf decision of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative. Securityholder Representative will incur no liability with respect to any action taken or suffered by it in connection with matters related reliance upon any notice, direction, instruction, consent, statement or other document believed by it to be genuine and to have been signed by the proper person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except its own willful misconduct, bad faith or gross negligence. In all questions arising under this Agreement or the other Transaction Agreements Escrow Agreements, Securityholder Representative may rely on the advice of counsel, and Securityholder Representative will not be liable to the Securityholders for anything done, omitted or suffered in good faith by Securityholder Representative based on such advice. The Securityholders shall, severally (provided, that, no such costs, expenses or liabilities on the basis of each Securityholder’s Pro-Rata Portion at the time the claim shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(emade) and Section 3.6(f)).
not jointly, indemnify, defend and hold harmless the Securityholder Representative and its successors and assigns from and against any and all suits, actions, causes of action, losses, liabilities, damages, claims, penalties, fines, forfeitures, fees, costs and expenses (bincluding reasonable attorneys’ fees and court costs and fees and expenses of counsel and experts and all expenses of document location, duplication and shipment) Parent may rely upon all in an amount not to exceed the amount of Total Merger Consideration actually received by each Securityholder (collectively, “Securityholder Representative Losses”) actually incurred in connection with any actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, in each case as such Securityholder Representative Loss is incurred; provided that in the other Transaction Agreements event it is finally adjudicated that a Securityholder Representative Loss or any portion thereof was primarily caused by the willful misconduct, bad faith or gross negligence of the Securityholder Representative, the Securityholder Representative will reimburse the Securityholders the amount of such indemnified Securityholder Representative Loss attributable to such willful misconduct, bad faith or gross negligence. Any Securityholder Representative Losses actually suffered or incurred may be recovered by the Securityholder Representative only in the following order: (i) first, from the Securityholder Representative Expense Amount, (ii) second, from the amounts in the Escrow Amount otherwise distributable to the Securityholders pursuant to the terms hereof and the other agreements Indemnity Escrow Agreement; (iii) third, from any Earn-out Amounts at such time as any such amounts would otherwise be distributable to the Securityholders; and instruments contemplated hereby and thereby(iv) last, including all actions and inactions permitted by this Section 10.15 and Section 9.3directly from the Securityholders, in which case indemnification for Securityholder Representative’s Losses actually suffered or incurred shall be fully binding limited to each Securityholder’s Pro-Rata Portion thereof; provided, that while this section allows the Securityholder Representative to be paid from Securityholder Representative Expense Amount, the Escrow Amount, and the Earn-out Amounts, this does not relieve the Securityholders from their obligation to promptly pay such Securityholder Representative Losses as they are suffered or incurred, nor does it prevent the Securityholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Securityholder Representative be required to advance its own funds on them.
behalf of the Securityholders or otherwise, and the Securityholder Representative will not be required to take any action involving any expense unless the payment of such expense is made or provided for in a manner satisfactory to it. The Securityholders who have contributed at least 60% of the Escrow Amount can appoint a new Securityholder Representative by sending notice and a copy of the duly executed written consent appointing such new Securityholder Representative to the Securityholder Representative, Acquiror and the Escrow Agent. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Acquiror, Sub (eor, if after the Effective Time, the Surviving Corporation) By and the execution Escrow Agent. No bond shall be required of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative, and the Securityholder Representative shall have receive no liability to any Equity Holder with respect to actions taken or omitted to be taken in compensation for its capacity as services, other than from the Securityholder Representative and that Expense Amount or as set forth in the Securityholder Representative shall Engagement Agreement. Solely as between the Securityholders, the engagement of the Securityholder Representative is made pursuant to the terms of the Engagement Agreement to be under no obligation to take any action in its capacity as entered with the Securityholder Representative, unless . The Securityholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions termination of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms hereinAgreement.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacity.
Appears in 1 contract
Securityholder Representative. (a) Pursuant to the adoption By virtue of executing this Agreement by Company Common Stockholders representing greater than 50% each of the outstanding shares Securityholders and without any further action of Company Common Stockany of the Securityholders or the Company, each Equity Holder will of the Securityholders shall be deemed to have agreed to irrevocably appointedappoint Fortis Advisors LLC as such Securityholder’s true, authorized exclusive, and empowered the Securityholder Representative to act as a representative for the benefit of each Equity Holder as the exclusive lawful agent and attorney-in-fact fact, as the Securityholder Representative for and on behalf of the Securityholders, to take all actions under this Agreement, the Escrow Agreement or the Securityholder Representative Engagement Agreement that are to be taken by the Securityholder Representative, including to amend this Agreement, to waive any provision of this Agreement, to take actions necessary to give effect to the Acquisition, to negotiate payments due pursuant to this Article IX, to give and receive notices and communications, to authorize payment to any Buyer Indemnified Person from the Indemnity Escrow Fund in satisfaction of claims by any Buyer Indemnified Person, to authorize payment to Buyer from the Adjustment Escrow Fund, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Buyer Indemnified Person against any of the Securityholders or by any of the Securityholders against any Buyer Indemnified Person or any dispute between any Buyer Indemnified Person and any of the Securityholders, in each case relating to this Agreement or the transactions contemplated in this Agreement, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement, the Escrow Agreement or the Securityholder Representative Engagement Agreement, in each case subject to the limitation set forth in this Section 9.5 or otherwise in this Agreement and in accordance with the power terms hereof, and authority Fortis Advisors LLC hereby accepts such appointment. Notwithstanding the foregoing, the Securityholder Representative shall have no obligation to act on behalf of each Equity Holder the Securityholders, except as expressly provided herein, in connection with the Merger, which shall include the power Escrow Agreement and authority as is necessary to carry out the functions assigned to in the Securityholder Representative under this Engagement Agreement, and for purposes of clarity, there are no obligations of the Securityholder Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedule. The Securityholder Representative’s appointment shall survive the death, incapacity, adjudication of incompetence or insanity, or dissolution or bankruptcy, of any Securityholder. Such agency may be changed by the Securityholders from time to time upon not less than thirty (30) days’ prior written notice to Buyer; provided, however, that the Securityholder Representative shall have no obligation may not be removed unless Securityholders representing the holders of at least a two-thirds interest of the Indemnity Escrow Fund agree to such removal and to the Equity Holders to act, except as expressly provided herein, and without limiting the generality identity of the foregoing, substituted agent. The immunities and rights to indemnification shall survive the Securityholder Representative shall have the power and authority to:
(i) execute and deliver on behalf resignation or removal of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any member of the Equity HoldersAdvisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. In the event of a vacancy in the position of Securityholder Representative, (C) receive process on behalf the role shall be temporarily filled by the Securityholders holding a majority in interest of any the Indemnity Escrow Fund. No bond shall be required of the Securityholder Representative. Notices or all Equity Holders in any such Action and compromise communications to or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder Representative shall not have any obligation constitute notice to take any such actionsor from all the Securityholders. The powers, immunities and shall not have any liability for any failure rights to take any such actions);
(iii) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating indemnification granted to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) The grant of authority provided for herein Group hereunder: (i) is are coupled with an interest and shall be irrevocable and survive the death, incompetencyincompetence, bankruptcy or liquidation of any Equity Holder Securityholder and shall be binding on any successor thereto, and (ii) shall survive the Merger and delivery of an assignment by any Securityholder of the consummation whole or any fraction of other transactions contemplated hereby and by his, her or its interest in the other Transaction Agreements.
(d) Indemnity Escrow Fund or Additional Consideration. All actions taken by the Securityholder Representative under this Agreement, the Escrow Agreement and or the other Transaction Agreements Securityholder Representative Engagement Agreement shall be binding upon all Equity Holders each Securityholder and their respective such Securityholder’s successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice tosuch Seller, and deal exclusively withall defenses which may be available to any Securityholder to contest, negate or disaffirm the action of the Securityholder Representative with respect to any and all matters concerning any of taken in good faith under this Agreement, the Equity Holders arising out of or related to this Escrow Agreement or the other Transaction Agreements Securityholder Representative Engagement Agreement are waived.
(b) Each of the Securityholders represents and warrants to Buyer and to the Escrow Agent that the Securityholder Representative has the irrevocable, absolute and unconditional right, power and authority (i) to bind such Securityholder pursuant to terms of this Agreement, (ii) to give and receive directions and notices hereunder on behalf of such Securityholder and (iii) to make all other agreements determinations on behalf of such Securityholder that may be required or instruments contemplated hereby or thereby or that it deems appropriate under this Agreement; in each case in its capacity as the Merger Securityholder Representative hereunder, all in accordance with the terms and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively conditions set forth herein.
(without further evidence of any kind whatsoeverc) on any document purported Until notified in writing by the Securityholder Representative to have that it has resigned, or that it has been executed removed by or on behalf of any the requisite majority in interest of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed Indemnity Escrow Fund pursuant to the rights term of clause (a) above, Buyer and obligations the Escrow Agent may rely conclusively and act upon the directions, instructions and notices of the Securityholder Representative as representative named above and, thereafter, upon the directions, instructions and notices of any successor named in a writing executed by the requisite majority-in-interest of the Equity Holders hereunder. If for Indemnity Escrow Fund pursuant to the term of clause (a) above, filed with the Escrow Agent or a successor appointed by a court of competent jurisdiction, which actions (or failures to act), directions, instructions and notices shall be conclusive and binding on all the Securityholders, in each case subject to the limitation set forth in this Section 9.5 or otherwise in this Agreement, and Buyer shall not have any reason there is no liability of any kind or nature to any Securityholders in reliance thereon.
(d) Without derogating from the generality of the above, the Securityholders each hereby authorize the Securityholder Representative at to, in each case subject to the limitation set forth in this Section 9.5 or otherwise in this Agreement:
(i) Receive all notices or documents given or to be given to the Securityholders pursuant hereto or in connection herewith and to receive and accept service of legal process and file pleadings on behalf of the Securityholders in connection with any timesuit or proceeding arising under this Agreement;
(ii) Engage counsel, all references herein and such accountants and other advisors and incur such other expenses in connection with this Agreement and the transactions contemplated in this Agreement as the Securityholder Representative may in its sole discretion deem appropriate; and
(iii) Take such action as the Securityholder Representative may in its sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Buyer contained in this Agreement or in any document delivered by Buyer pursuant hereto; (B) taking such other agreement or instrument contemplated hereby to the Securityholder Representative in which action as the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of take under this Agreement, the other Transaction Agreements Escrow Agreement or the Securityholder Representative Engagement Agreement; (C) receiving all documents or certificates and making all determinations, in its capacity as Securityholder Representative, required under this Agreement; and (D) all such actions as may be necessary to carry out any of the other agreements and instruments transactions contemplated hereby and therebyin this Agreement in its capacity as Securityholder Representative, including to prosecute or defend (or decline to do so) in the Securityholder Representative’s discretion all actions indemnification disputes (including hiring counsel and inactions permitted by other litigation assistance), and any claims for which indemnification is sought pursuant to this Section 10.15 and Section 9.3Article IX; provided, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no authority to consent to the provision of any non-monetary damages by Securityholders, without their written consent, and any waiver of any obligation of Buyer;
(e) Notwithstanding the foregoing, (i) in the event of any claims for which indemnification is sought pursuant to this Article IX against a specific Securityholder, the Securityholder Representative shall notify such Securityholder of such claim, promptly upon receipt of the applicable Officer’s Certificate from Buyer Indemnified Person and such Securityholder will have the right to control the defense of the Third Party Claim with counsel reasonably acceptable to Buyer instead of the Securityholder Representative on the terms set forth in Section 9.4(f), (ii) the liability of any Securityholder shall be subject to the limitation set forth in this Agreement and the Securityholder Representative shall have no authority to consent to or authorize the amendment of such limitations, without the written consent of such Securityholder and (iii) the Securityholder Representative shall have no authority to consent to or authorize the allocation of the Acquisition Consideration not in accordance with the Consideration Spreadsheet (or the Updated Consideration Spreadsheet, if delivered pursuant to Section 3.2(c)), without the written consent of all Securityholders.
(f) Certain Securityholders have entered into an engagement agreement (the “Securityholder Representative Engagement Agreement”) with the Securityholder Representative to provide direction to the Securityholder Representative in connection with its services under this Agreement, the Escrow Agreement and the Securityholder Representative Engagement Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholder Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholder Representative Group”), shall be liable to any Equity Holder Securityholder for any action or failure to act in connection with respect the acceptance or administration of the Securityholder Representative’s responsibilities hereunder, under the Escrow Agreement or under the Securityholder Representative Engagement Agreement, unless and only to actions taken the extent such action or omitted failure to be taken act constitutes gross negligence or willful misconduct. The Securityholders shall, severally and not jointly, indemnify, defend and hold harmless, against such Securityholder’s ratable share, based on the Pro Rata Portion, the Securityholder Representative Group from and against any and all Losses, claims, judgments, fines or amounts paid in settlement arising out of or in connection with the Securityholder Representative’s execution and performance of this Agreement, the Escrow Agreement or the Securityholder Representative Engagement Agreement in its capacity as Securityholder Representative, or otherwise in connection with acting as the Securityholder Representative, in each case as such Losses are incurred, including the fees and expenses of any legal counsel, accountants, auditors and other advisors retained by the Securityholder Representative in its capacity as Securityholder Representative in connection with this Agreement, costs of other skilled professionals and in connection with seeking recovery from insurers (collectively, the “Securityholder Representative Expenses”). Any such Securityholder Representative Expenses shall be recovered (i) first from any distribution of the Indemnity Escrow Fund, but only if and when required to be distributed to the Securityholders, pursuant to the terms of this Agreement at the time of distribution in accordance with written instructions delivered by the Securityholder Representative to the Escrow Agent, and (ii) secondly, directly from the Securityholders severally and not jointly and in accordance with their respective Pro Rata Portion. The Securityholders acknowledge that the Securityholder Representative shall not be under no obligation required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement, the Securityholder Representative Engagement Agreement or the transactions contemplated hereby or thereby. Furthermore, the Securityholder Representative shall not be required to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representativeits determination, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to performing such direction or taking such action. By the execution actions.
(g) All of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) Expenses incurred by the Securityholder Representative in such capacityconnection with this Agreement, the Escrow Agreement or the Securityholder Representative Engagement Agreement shall be payable by the Securityholders, initially out of the Securityholder Representative’s Reserve Fund. Any of the Securityholder Representative Expenses incurred by the Securityholder Representative in connection with this Agreement, the Escrow Agreement or the Securityholder Representative Engagement Agreement in excess of the Securityholder Representative’s Reserve Fund shall be reimbursed to the Securityholder Representative by the Securityholders, severally and not jointly and in accordance with their respective Pro Rata Portion. The Securityholder Representative’s Reserve Fund shall be held by the Securityholder Representative in a segregated client account and shall be entitled used (i) for the purposes of paying directly or reimbursing the Securityholder Representative for any Securityholder Representative Expenses incurred pursuant to indemnification this Agreement, the Escrow Agreement or the Securityholder Representative Engagement Agreement, or (ii) as otherwise determined by the Advisory Group. The Securityholder Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Securityholder Representative’s Reserve Fund other than as a result of its gross negligence or willful misconduct. The Securityholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Securityholder Representative’s Reserve Fund and has no Tax reporting or income distribution obligations. The Securityholders will not receive any interest on the Securityholder Representative’s Reserve Fund and assign to the Securityholder Representative any such interest. Subject to Advisory Group approval, the Securityholder Representative may contribute funds to the Securityholder Representative’s Reserve Fund from any consideration otherwise distributable to the Equity Holders against Securityholders. Any remaining funds in the Securityholder Representative’s Reserve Fund not used by the Securityholder Representative will be paid to the Securityholders in accordance with their respective Pro Rata Portions of the Acquisition Consideration. The Securityholder Representative shall have the right to retain the Securityholder Representative’s Reserve Fund for as long as the Securityholder Representative deems necessary to discharge its duties.
(h) Notwithstanding any lossof the foregoing, liability or expenses arising out of actions taken the Securityholder Representative Group shall not be liable to the Securityholders, the Company, Buyer and\or any other party, for any act done or omitted to be taken hereunder in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or , unless caused by its willful misconduct). In all questions arising in respect of any matter arising hereunder, including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with may rely on the immediately preceding sentence on a pro rata basis advice of counsel and any action based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration upon such reliance shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that relieve the Securityholder Representative shall have no personal responsibility or liability for of any expenses, costs or other liabilities incurred by it in such capacity.Liabilities hereunder.
Appears in 1 contract
Securityholder Representative. (a) Pursuant to By virtue of the execution and delivery of a Joinder Agreement, and the adoption of this Agreement by Company Common Stockholders representing greater than 50% and approval of the outstanding shares Merger by the Stockholders, and without any further action of Company Common Stockany of the Indemnifying Securityholders or the Company, each Equity Holder will Indemnifying Securityholder will, as a specific term of the Merger, be deemed to have agreed that:
(a) The Securityholder Representative is irrevocably appointedconstituted and appointed as of the Closing as the Securityholder Representative, authorized representative, agent, proxy, and empowered attorney in fact (coupled with an interest) for all such Persons for all purposes under this Agreement and the Transaction Documents including the full power and authority on each such Person’s behalf: (i) to consummate the transactions contemplated under this Agreement and the other Transaction Documents; (ii) to negotiate claims and disputes arising under, or relating to, this Agreement and the other Transaction Documents (including, for the avoidance of doubt, the adjustment of Closing Proceeds contemplated by Section 3.3 and claims for indemnification under Article 9); (iii) to facilitate the disbursement to any Indemnifying Securityholder of any funds due to such Indemnifying Securityholder under this Agreement (including, for the avoidance of doubt, any portion of the Merger Consideration) or otherwise; (iv) to withhold any amounts received on behalf of any Indemnifying Securityholder pursuant to this Agreement (including, for the avoidance of doubt, any portion of the Merger Consideration) or to satisfy (on behalf of the Indemnifying Securityholders) any and all obligations or Liabilities of any Indemnifying Securityholder or the Securityholder Representative to act as a representative in the performance of any of their commitments hereunder (including, for the benefit avoidance of each Equity Holder as doubt, the exclusive agent and attorney-in-fact with the power and authority to act satisfaction of payment obligations (on behalf of each Equity Holder the Indemnifying Securityholder) in connection with the Merger, which shall include adjustment of Closing Proceeds contemplated by Section 3.3 or the power and authority as is necessary indemnification of Indemnified Persons under Article 9); (v) to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority to:
(i) execute and deliver any amendment or waiver to this Agreement and the other Transaction Documents (without the prior approval of any Indemnifying Securityholder); and (vi) to take all other actions to be taken by or on behalf of the Equity Holders such waivers and consents any Indemnifying Securityholder in connection with this Agreement and the other Transaction Agreements Documents. Such agency and proxy are coupled with an interest, are therefore irrevocable without the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests consent of the Securityholder Representative arising out and will survive the death, incapacity, bankruptcy, dissolution or liquidation of or under or in any manner relating to this Agreement each Indemnifying Securityholder. All decisions and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative will be binding upon each Indemnifying Securityholder, and no Indemnifying Securityholder will have the right to object, dissent, protest or otherwise contest the same. No Indemnified Person will be liable to any Indemnifying Securityholder for any actions taken or omitted by the Equity Holders unless such waiver is them in writing signed by the waiving party reliance upon any instructions, notice, or other instruments delivered by the Securityholder Representative. The Securityholder Representative will have no duties or obligations hereunder, including any fiduciary duties, except those set forth herein, and such duties and obligations will be determined solely by the express provisions of this Agreement. The Securityholder Representative may resign at any time;
(ivb) on behalf The Securityholder Representative will incur no liability of the Equity Holders, 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, any kind with respect to do any and all things and to take any and all action that the Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated omission by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative its services pursuant to this Agreement and the other Transaction AgreementsDocuments, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, except in the sole determination event of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification liability directly resulting from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct). The Securityholder Representative will not be liable for any action or omission pursuant to the advice of counsel. The Indemnifying Securityholders will indemnify, including defend and hold harmless the Securityholder Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of investigation counsel and defense experts and their staffs and all expense of claims. The Equity Holders will indemnify the Securityholder document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in accordance connection with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under execution and performance of this Section 10.15 are solely Agreement and the Transaction Documents, in each case as a representative such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Equity Holders and that Securityholder Representative, the Securityholder Representative shall will reimburse the Indemnifying Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Securityholder Representative by the Indemnifying Securityholders, any such Representative Losses may be recovered by the Securityholder Representative from (i) the funds in the Representative Expense Fund and (ii) any other funds that become payable to the Indemnifying Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Indemnifying Securityholders; provided, that while this section allows the Securityholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Indemnifying Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Securityholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Securityholder Representative be required to advance its own funds on behalf of the Indemnifying Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Indemnifying Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Securityholder Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Securityholder Representative or the termination of this Agreement.
(c) The Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Securityholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Indemnifying Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Securityholder Representative any ownership right that they may otherwise have no personal responsibility had in any such interest or liability earnings. The Securityholder Representative will not be liable for any expensesloss of principal of the Representative Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholder Representative will hold these funds separate from its corporate funds, costs will not use these funds for its operating expenses or any other liabilities incurred corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Securityholder Representative’s responsibilities, the Securityholder Representative will deliver any remaining balance of the Representative Expense Fund to the Paying Agent for further distribution to the Indemnifying Securityholders. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by it the Indemnifying Securityholders at the time of Closing; and
(d) Notwithstanding anything to the contrary herein, the Securityholder Representative and its Affiliates will not be liable for any Loss to any Indemnifying Securityholder for any action taken or not taken by the Securityholder Representative or for any act or omission taken or not taken in such capacityreliance upon the actions taken or not taken or decisions, communications or writings made, given or executed by Parent or Merger Sub or the Surviving Corporation.
Appears in 1 contract
Securityholder Representative. (a) Pursuant to By virtue of the execution and delivery of a Joinder Agreement or Letter of Transmittal, as applicable, and the adoption of this Agreement by Company Common Stockholders representing greater than 50% and approval of the outstanding shares of Company Common StockMerger by the Stockholders, each Equity Holder will be of the Securityholders is hereby deemed to have irrevocably appointedappoint ▇▇▇▇▇▇ ▇▇▇▇▇▇, authorized and empowered the Securityholder Representative to act as a representative for the benefit of each Equity Holder as the exclusive its agent and attorney-in-fact with the power and authority to act on behalf of each Equity Holder in connection with the Mergerfact, which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority to:
(i) execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following Securityholders to give and receive notices and communications, to authorize withdrawals from the Escrow Fund and the Tax Escrow Fund in satisfaction of Losses incurred by Parent Indemnified Parties, to object to such deductions, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholder Representative for the accomplishment of the foregoing or otherwise in connection with this Agreement, the other Transaction Documents or the transactions contemplated hereby or thereby or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the holders of a majority of the shares of Company Capital Stock at the Effective Time, from time to time upon not less than five days’ prior written notice to Parent. A vacancy in the position of Securityholder Representative may be filled by the holders of a majority of the shares of Company Capital Stock at the Effective Time. Without limiting the generality No bond shall be required of the foregoingSecurityholder Representative, following and the Effective TimeSecurityholder Representative shall not receive any compensation for its services. Notices or communications to or from the Securityholder Representative shall constitute notice to or from the Securityholders. AGREEMENT AND PLAN OF MERGER
(b) The Securityholder Representative will incur no liability with respect to any action or inaction taken or suffered by him in reliance upon any notice, direction, instruction, consent, statement or other document believed by him to be genuine and to have been signed by the proper person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except his own willful misconduct, bad faith or gross negligence. In all questions arising under this Agreement, the Securityholder Representative may (A) assert any claim or institute any Actionrely on the advice of counsel, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against and the Securityholder Representative will not be liable to the Securityholders for anything done, omitted or any of suffered in good faith by the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle Securityholder Representative based on such terms as it advice. The Securityholders shall determine to be appropriateindemnify the Securityholder Representative and hold the Securityholder Representative harmless against, and give receipts, releases and discharges reimburse the Securityholder Representative with respect to, any such Actionloss, (D) file any proofs of debtliability or expense incurred without willful misconduct, claims and petitions as it may deem advisable bad faith or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act gross negligence on the part of the Securityholder Representative and arising out of or in connection with the acceptance or administration of the Securityholder Representative’s duties hereunder, except as otherwise provided in this Agreement or including the other Transaction Agreements, shall be deemed a waiver reasonable fees and expenses of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or legal counsel retained by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) The grant A decision, act, consent or instruction of authority provided for herein (i) is coupled with an interest the Securityholder Representative, shall constitute a decision of the Securityholders and shall be irrevocable final, binding and survive conclusive upon the deathSecurityholders and Parent, incompetency, bankruptcy or liquidation of any Equity Holder and (ii) shall survive the Merger Payment Agent and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding Escrow Agent may rely upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice toany such decision, and deal exclusively withact, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of consent or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations instruction of the Securityholder Representative as representative being the decision, act, consent or instruction of the Equity Holders hereunderSecurityholders. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this AgreementParent, the other Transaction Agreements Payment Agent and the other agreements and instruments contemplated Escrow Agent is hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no relieved from any liability to any Equity Holder person for any acts done by them in accordance with respect to actions taken such decision, act, consent or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part instruction of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacity.
Appears in 1 contract
Sources: Merger Agreement (Netsuite Inc)
Securityholder Representative. By virtue of accepting the benefits hereof (aincluding a share of the Merger Consideration, if and to the extent payable hereunder), approval of the Merger (if applicable) Pursuant to as well as through the execution and delivery of the Support Agreement in the case of the Stockholders, and the adoption of this Agreement by Company Common Stockholders representing greater than 50% and approval of the outstanding shares Merger by the Stockholders, and without any further action of Company Common Stockany of the Indemnifying Securityholders or the Company, each Equity Holder will Indemnifying Securityholder will, as a specific term of the Merger, be deemed to have agreed that:
(a) The Securityholder Representative is irrevocably appointed, authorized constituted and empowered appointed as the Securityholder Representative to act as a representative Representative, exclusive agent, proxy, and true and lawful attorney in fact (coupled with an interest) for all Indemnifying Securityholders for all purposes under this Agreement and the benefit of each Equity Holder as Escrow Agreement, including the exclusive agent and attorney-in-fact with the full power and authority on each such Person’s behalf: (i) to act consummate the transactions contemplated under this Agreement and the other Transaction Documents; (ii) to negotiate claims and disputes arising under, or relating to, this Agreement and the other Transaction Documents (including, for the avoidance of doubt, the adjustment of Closing Proceeds contemplated by Section 3.3 and claims for indemnification under Article 8); (iii) to take action to cause to be disbursed to any Indemnifying Securityholder any funds to be disbursed to such Indemnifying Securityholder under this Agreement (including, for the avoidance of doubt, any portion of the Merger Consideration) or otherwise; (iv) to direct payment of any amounts to be received by any Indemnifying Securityholder pursuant to this Agreement (including, for the avoidance of doubt, any portion of the Merger Consideration) or to satisfy (on behalf of each Equity Holder the Indemnifying Securityholders) any and all obligations or Liabilities of any Indemnifying Securityholder; (v) to execute and deliver any amendment or waiver to this Agreement and the other Transaction Documents (without the prior approval of any Indemnifying Securityholder); and (vi) to take or refrain from taking the foregoing and all other actions to be taken by or on behalf of any Indemnifying Securityholder in connection with this Agreement and the Mergerother Transaction Documents or otherwise relating to the subject matter of this Agreement, which shall include as determined by the power Securityholder Representative. The powers, immunities and authority as is necessary rights to carry out the functions assigned indemnification granted to the Securityholder Representative Group hereunder: (i) are coupled with an interest, are therefore irrevocable without the consent of the Securityholder Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of each Indemnifying Securityholder, and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Indemnifying Securityholder of the whole or any fraction of his, her or its interest in the Escrow Funds. All decisions and actions by the Securityholder Representative including under this Agreement; provided, howeverthe Escrow Agreement or the Securityholder Representative Engagement Agreement shall be binding upon each Indemnifying Securityholder and such Indemnifying Securityholder’s successors as if expressly confirmed and ratified in writing by such Indemnifying Securityholder, that and no Indemnifying Securityholder shall have the right to object, dissent, protest or otherwise contest the same. Parent, the Surviving Corporation and their Affiliates may fully rely upon any such decision, act, consent or instruction of the Securityholder Representative as being the decision, act, consent or instruction of the Indemnifying Securityholder. Parent, the Surviving Corporation and their Affiliates is hereby relieved from any Liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Securityholder Representative. No Indemnified Person shall be liable to any Indemnifying Securityholder for any actions taken or omitted by them in reliance upon any instructions, notice, or other instruments delivered by the Securityholder Representative. All defenses which may be available to any Indemnifying Securityholder to contest, negate or disaffirm the action of the Securityholder Representative taken in good faith under this Agreement, the Escrow Agreement or the Securityholder Representative Engagement Agreement are waived. Notwithstanding anything herein to the contrary, the Securityholder Representative shall have no obligation duties or obligations, except those expressly set forth herein, in the Escrow Agreement and in the Securityholder Representative Engagement Agreement, and for purposes of clarity, there are no duties or obligations of the Securityholder Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Securityholder Representative may resign at any time, and may be removed or replaced by the vote of Indemnifying Securityholders with a majority of the Pro Rata Portion. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholder Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement or the Escrow Agreement;
(b) The Securityholder Representative Group shall be indemnified, defended, held harmless and reimbursed by each Indemnifying Securityholder severally (based on each Indemnifying Securityholder’s Pro Rata Portion), and not jointly, against all Liabilities, losses, claims, damages, costs, expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement (collectively, the “Securityholder Representative Expenses”) incurred without gross negligence or willful misconduct on the part of the Securityholder Representative and arising out of or in connection with the acceptance or administration of its duties hereunder, under the Escrow Agreement or under the Securityholder Representative Engagement Agreement, including any amounts paid or incurred by the Securityholder Representative in connection with any claim, action, suit or proceeding to which the Securityholder Representative is made a party by reason of the fact that such Person is or was acting as the Securityholder Representative pursuant to the Equity Holders terms of this Agreement (including, for the avoidance of doubt, the satisfaction of payment obligations on behalf of the Indemnifying Securityholders). Any and all amounts paid or incurred by the Securityholder Representative in connection with any claim, action, suit or proceeding to actwhich the Securityholder Representative or such other Person is made a party or otherwise by reason of the fact that it is or was acting as the Securityholder Representative pursuant to the terms of this Agreement, except the Escrow Agreement or the Securityholder Representative Engagement Agreement are on behalf of the Indemnifying Securityholders (and not, for the avoidance of doubt, on behalf of the Securityholder Representative in any other capacity);
(c) Certain Indemnifying Securityholders have entered into an engagement agreement (the “Securityholder Representative Engagement Agreement”) with the Securityholder Representative to provide direction to the Securityholder Representative in connection with its services under this Agreement, the Escrow Agreement and the Securityholder Representative Engagement Agreement (such Indemnifying Securityholders, including their individual representatives, collectively hereinafter referred to as expressly provided hereinthe “Advisory Group”). Neither the Securityholder Representative nor its members, managers, directors, officers, contractors, agents and without employees nor any member of the Advisory Group (collectively, the “Securityholder Representative Group”) shall incur any Liability or otherwise have liability to any Indemnifying Securityholder for any action or failure to act in connection with the acceptance or administration of the Securityholder Representative’s responsibilities hereunder, under the Escrow Agreement or under the Securityholder Representative Engagement Agreement, including any by virtue of the failure or refusal of the Securityholder Representative for any reason to consummate the transactions contemplated hereby or relating to the performance of their duties hereunder, unless and only to the extent such action or failure to act constitutes gross negligence or willful misconduct. Without limiting the generality of the foregoing, the Securityholder Representative Group shall have no Liability in respect of any action, claim or proceeding brought against any such Person by any Indemnifying Securityholder, regardless of the power legal theory under which such Liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at Law or in equity, or otherwise, if any such Person took or omitted taking any action in good faith;
(d) Securityholder Representative Expenses may be recovered first, from the Expense Fund, second, from any distribution of the Escrow Funds otherwise distributable to the Indemnifying Securityholders at the time of distribution, and authority to:third, directly from each Indemnifying Securityholder severally (based on such Indemnifying Securityholder’s Pro Rata Portion), and not jointly;
(e) The Representative Holdback Amount shall be held by the Securityholder Representative in a segregated client account and shall be used (i) execute for the purposes of paying directly or reimbursing the Securityholder Representative for any Securityholder Representative Expenses incurred pursuant to this Agreement, the Escrow Agreement or the Securityholder Representative Engagement Agreement, or (ii) as otherwise determined by the Advisory Group (the “Expense Fund”). The Securityholder Representative is not providing any investment supervision, recommendations or advice and deliver on behalf shall have no responsibility or liability for any loss of principal of the Equity Holders such waivers and consents Expense Fund other than as a result of its gross negligence or willful misconduct. The Securityholder Representative is not acting as a withholding agent or in any similar capacity in connection with this Agreement the Expense Fund and has no tax reporting or income distribution obligations. The Indemnifying Securityholders will not receive any interest on the other Transaction Agreements Expense Fund and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications assign to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating such interest. Subject to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective TimeAdvisory Group approval, the Securityholder Representative may (A) assert contribute funds to the Expense Fund from any claim consideration otherwise distributable to the Indemnifying Securityholders. Upon full reimbursement of all Securityholder Representative Expenses or institute any Action, (B) investigate, defend, contest or litigate any Action initiated when reasonably determined by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of that the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine Expense Fund is no longer required to be appropriatewithheld, and give receiptsthe Securityholder Representative shall distribute the remaining Expense Fund (if any) to the Paying Agent and/or the Company, releases and discharges as applicable, for further distribution to the Indemnifying Securityholders in accordance with respect to, any such Action, their respective Pro Rata Portions; and
(Df) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood The Indemnifying Securityholders acknowledge that the Securityholder Representative shall not have be required to expend or risk its own funds or otherwise incur any obligation to take any such actions, and shall not have any financial liability for any failure to take any such actions);
(iii) refrain from enforcing any right of in the Equity Holders, arising out of exercise or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver performance of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock its powers, letters and other writingsrights, and, in general, to do any and all things and to take any and all action that the Securityholder Representative, in its sole and absolute discretion, may consider necessary duties or proper privileges or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and Agreement, the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively withEscrow Agreement, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Engagement Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby. Furthermore, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise not be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation required to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representativeits determination, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to performing such direction or taking such actionactions. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the The Securityholder Representative shall be entitled to: (i) rely upon the Spreadsheet, (ii) rely upon any signature believed by it to engage such counselbe genuine, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Indemnifying Securityholder or other party. Notwithstanding anything to the contrary herein and without limiting the generality of other protections in the absence of bad faith on the part favor of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi)Representative Group hereunder, by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative and its Affiliates shall not be entitled liable for any Loss or otherwise to reimbursement any Indemnifying Securityholder for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred any action taken or not taken by the Securityholder Representative or for any act or omission taken or not taken in such capacity, and shall be entitled to indemnification from reliance upon the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be not taken in its capacity as or decisions, communications or writings made, given or executed by Parent or Merger Sub or the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms hereinSurviving Corporation.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacity.
Appears in 1 contract
Securityholder Representative. (a) Pursuant to For purposes of this Agreement, the Company and each Securityholder by virtue of the adoption and approval of this Agreement by Company Common Stockholders representing greater than 50% and approval of the outstanding shares Mergers and/or acceptance of Company Common Stockany consideration pursuant to this Agreement or by approving of and adopting this Agreement, each Equity Holder will be deemed to the Mergers and the Transaction Documents by the Required Stockholder Vote or the Letter of Transmittal and receiving the benefits thereof, have irrevocably appointedconstituted, authorized appointed and empowered effective from and after the date thereof the Securityholder Representative to act as a representative Representative, for the benefit of each Equity Holder the Securityholders and as the exclusive agent and attorney-in-fact with the power and authority to act on behalf of each Equity Holder Securityholder, in connection with and to facilitate the Mergerconsummation of the transactions contemplated by this Agreement, which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority to:
: (i) execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements agreements, documents and the consummation of the Merger and other transactions contemplated hereby and therebycertificates pursuant to such agreements, including any all amendments or modifications to this Agreement and such agreements, and take all actions required or the other Transaction Agreementspermitted to be taken under this Agreement and such agreements; (ii) negotiate, in each case execute and deliver such waivers, consents and amendments as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
; (iiiii) authorize or object to delivery to Parent of cash from the Adjustment Escrow Account; (iv) to deduct and/or hold back any funds that may be payable to the Securityholder Representative pursuant to the terms of this Agreement and the Escrow Agreement in order to pay any amount that may be payable by such Securityholder hereunder, in each case on a basis consistent with their Allocable Percentage of such funds; (v) enforce and protect the rights and interests of the Equity Holders following the Effective Time Securityholder and to enforce and protect the rights and interests of the Securityholder Representative such Persons arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or and therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoingSecurityholders, following the Effective Timeincluding consenting to, compromising or settling any such claims, conducting negotiations with Parent, the Securityholder Representative may Company and their respective Representatives regarding such claims, and, in connection therewith, to: (A) assert any claim or institute any Actionaction, proceeding or investigation; (B) investigate, defend, contest or litigate any Action claim, action, proceeding or investigation initiated by Parent Parent, the Company or any other Person, or by any Governmental Entity Authority against the Securityholder Representative or and/or any of the Equity HoldersSecurityholders, (C) and receive process on behalf of any or all Equity Holders Securityholders in any such Action claim, action, proceeding or investigation and compromise or settle on such terms as it the Securityholder Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Actionclaim, action, proceeding or investigation; (DC) file any proofs of debt, claims and petitions as it the Securityholder Representative may deem advisable or necessary and necessary; (D) settle or compromise any claims asserted under this Agreement; (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (action, proceeding or investigation, it being understood that the Securityholder 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);
; and (iiiF) use the Expense Fund Amount to satisfy any expenses incurred by the Securityholder Representative in connection with fulfilling its obligations hereunder from and after the Closing Date; (vi) refrain from enforcing any right of the Equity Holders, Securityholders arising out of or under or in any manner relating to this Agreement or the other documents contemplated herebyAgreement; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction AgreementsAgreement, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders Securityholders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
; (ivvii) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the Merger and other transactions contemplated by this Agreement Agreement; (viii) engage special counsel, accountants and other advisors and incur such other expenses on behalf of the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process Securityholders in connection with any claims matter arising under this Agreement Agreement; and (ix) collect, hold and disburse the Expense Fund Amount and any other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or amounts due and payable to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or for the other Transaction Agreements (providedbenefit of the Securityholders, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f))the terms of this Agreement.
(b) Parent may rely upon all actions taken By virtue of the adoption and approval of this Agreement and approval of the Mergers or omitted by signing the Stockholder Written Consent or the Letter of Transmittal and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Mergers, each Securityholder grants unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing necessary or desirable to be taken done in connection with the specific and limited 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 the Securityholder Representative may lawfully do or cause to be done by virtue hereof. Each Securityholder further acknowledges and agrees that, upon execution of this Agreement, with respect to any delivery by the Securityholder Representative of any documents executed by the Securityholder Representative pursuant to this Section 11.15, such Securityholder shall be bound by such documents as fully as if such Securityholder had executed and delivered such documents. No bond shall be required of the Securityholder Representative. Any and all actions taken by the Securityholder Representative on behalf of the Securityholders shall be deemed to be facts ascertainable outside this Agreement and the other Transaction Agreements, shall be binding on all of which actions the Securityholders. The Securityholders shall cooperate with the Securityholder Representative and any accountants, attorneys or omissions other agents whom the Securityholder Representative may retain to assist in carrying out the Securityholder Representative duties hereunder. The parties acknowledge that the Securityholder Representative obligations under this Section 11.15 are solely as a representative of the Securityholders as set forth in this Agreement. All notices, counter notices, or other instruments or designations delivered by any Securityholders or the Securityholder Representative shall not be effective unless, but shall be legally binding upon effective if, signed by the Equity HoldersSecurityholder Representative, and if not, such document shall have no force and effect whatsoever hereunder and Parent and any other Person may proceed without regard to any such document.
(c) The Securityholder Representative shall be entitled to (i) receive reimbursement from the Securityholders for all expenses and charges incurred by the Securityholder Representative in connection with the performance of their duties and the fulfillment of their obligations under this Agreement, and (ii) be indemnified by the Securityholders. In connection with this Agreement, and in exercising or failing to exercise all or any of the powers conferred upon the Securityholder Representative hereunder, (A) the Securityholder Representative shall incur no responsibility whatsoever to any Securityholders by reason of any error in judgment or other act or omission performed or omitted hereunder, excepting only responsibility for any act or failure to act which is finally judicially determined to constitute willful misconduct, and (B) the Securityholder Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Securityholder Representative pursuant to such advice shall in no event subject the Securityholder Representative to liability to any Securityholders. Each Securityholder shall indemnify, severally and not jointly, based on such Securityholders' Allocable Percentage, the Securityholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' fees and the amount of any judgment against them, of any nature whatsoever (including any and all expense whatsoever reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened or any claims whatsoever) ("Representative Losses"), arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided that in the event that any such Representative Loss is finally adjudicated to have been caused by the gross negligence or willful misconduct of the Securityholder Representative, the Securityholder Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. Representative Losses may be recovered by the Securityholder Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided that while the Securityholder Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Securityholder Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Securityholder Representative hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Securityholder Representative or the termination of this Agreement.
(d) All of the indemnities, immunities and powers granted to the Securityholder Representative under this Agreement shall survive the Closing and/or any termination of this Agreement.
(e) 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 Equity Holder Securityholder and (ii) shall survive the Merger and the consummation of other the transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice toAgreement, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of authority granted in this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, Agreement shall be fully effective and absolutely binding on themeach Securityholder notwithstanding any contrary action of or direction from such Securityholder and no Securityholder shall have any right to object, dissent, protest or otherwise contest the same, except for actions or omissions of the Securityholder Representative constituting willful misconduct.
(ef) By At a time determined by the execution Securityholder Representative in its sole discretion, the Securityholder Representative shall distribute to the Paying Agent (or if the Paying Agent is no longer engaged, the Surviving Entity) or in the case of payments to holders of Company Options the Surviving Entity, for further distribution to the applicable Securityholders in accordance with their respective Allocable Percentage, any portion of the Expense Fund that is unused less any reserve that the Securityholder Representative, in good faith, reasonably determines is necessary for any out of pocket costs that the Securityholder Representative may reasonably expect to arise.
(g) Upon thirty (30) days' prior written notice to the Surviving Entity, the Securityholder Representative, shall have the right to resign its position as Securityholder Representative at its sole discretion for any reason. If the Securityholder Representative resigns or ceases to function in its capacity as Securityholder Representative for any reason whatsoever (including death or disability), then the Stockholders with an aggregate Allocable Percentage of greater than 50.0% shall, as promptly as reasonably practicable, elect a Letter new Securityholder Representative and shall have sent notice and a copy of Transmittal the duly executed written consent appointing such new Securityholder Representative to Parent, and the Paying Agent and provided evidence that such alternative replacement Securityholder Representative has accepted such appointment.
(h) Parent acknowledges and agrees that the Securityholder 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 Equity Holder irrevocably shall agree of Parent and the Merger Subs acknowledges and agrees that the Securityholder Representative shall have no liability to to, and shall not be liable for any Equity Holder losses of, any of Parent or the Merger Subs in connection with respect to actions taken or omitted to be taken in its capacity as any obligations of the Securityholder Representative and that under this Agreement or otherwise in respect of this Agreement or the Securityholder Representative transactions contemplated hereby, except (i) to the extent such losses shall be under no obligation proven to take any action in its capacity as be the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination direct result of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred willful misconduct by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising the performance of its powers and performing its function hereunder obligations hereunder, and (in the absence ii) with respect to willful breaches of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi11.15(c), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacity.
Appears in 1 contract
Sources: Merger Agreement (Inotiv, Inc.)
Securityholder Representative. (a) Pursuant to the adoption For purposes of this Agreement by Company Common Stockholders representing greater than 50% Agreement, the Securityholders without any further action on the part of the outstanding shares of Company Common Stockany such parties, each Equity Holder will shall be deemed to have irrevocably appointed, authorized and empowered consented to the appointment of the Securityholder Representative to act as a representative for the benefit of each Equity Holder Representative, as the exclusive agent and attorney-in-fact with for and on behalf of each such Securityholder, and the taking by the Securityholder Representative of any and all actions and the making of any decisions required or permitted to be taken by the Securityholder Representative under this Agreement, including the exercise of the power to (a) prepare, execute and deliver any document, certificate or other instrument required to be delivered by or on behalf of the Securityholders pursuant to this Agreement or the Escrow Agreements and any amendments hereto and thereto, (b) authorize delivery to Acquiror of the Escrow Amount and the Working Capital Escrow Amount, or any portion thereof, in satisfaction of Indemnification Claims and payment of any Adjustment Amount due, respectively, (c) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to Indemnification Claims and disputes relating to the Earn-Out, and pursue remedies and Actions in connection with any alleged breach of this Agreement, (d) resolve any Indemnification Claims, (e) make and settle determinations and calculations with respect to distributions and allocations of the Total Merger Consideration and any portion thereof, including, the Working Capital Adjustment, the Earn-Out Amounts, the Escrow Amount, the Working Capital Adjustment Amount and the Securityholder Representative Expense Amount, (f) give and receive notices and communications hereunder, and (g) take all actions necessary in the judgment of the Securityholder Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement and the Escrow Agreements or that are specifically mandated by the terms of this Agreement or the Securityholder Representative Engagement Agreement. Accordingly, Securityholder Representative has unlimited authority and power to act on behalf of each Equity Holder in connection Securityholder with the Merger, which shall include the power and authority as is necessary respect to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority to:
(i) execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Escrow Agreements and the consummation disposition, settlement or other handling of the Merger all Indemnification Claims, rights or obligations arising from and other transactions contemplated hereby and thereby, including any amendments or modifications taken pursuant to this Agreement or the other Transaction Escrow Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the . Securityholders will be bound by all actions taken by Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements Escrow Agreements, and Acquiror and the Surviving Corporation shall be entitled to rely on any action or on behalf decision of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative. Securityholder Representative will incur no liability with respect to any action taken or suffered by it in connection with matters related reliance upon any notice, direction, instruction, consent, statement or other document believed by it to be genuine and to have been signed by the proper person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except its own willful misconduct, bad faith or gross negligence. In all questions arising under this Agreement or the other Transaction Agreements Escrow Agreements, Securityholder Representative may rely on the advice of counsel, and Securityholder Representative will not be liable to the Securityholders for anything done, omitted or suffered in good faith by Securityholder Representative based on such advice. The Securityholders shall, severally (provided, that, no such costs, expenses or liabilities on the basis of each Securityholder’s Pro-Rata Portion at the time the claim shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(emade) and Section 3.6(f)).
not jointly, indemnify, defend and hold harmless the Securityholder Representative and its successors and assigns from and against any and all suits, actions, causes of action, losses, liabilities, damages, claims, penalties, fines, forfeitures, fees, costs and expenses (bincluding reasonable attorneys’ fees and court costs and fees and expenses of counsel and experts and all expenses of document location, duplication and shipment) Parent may rely upon all in an amount not to exceed the amount of Total Merger Consideration actually received by each Securityholder (collectively, “Securityholder Representative Losses”) actually incurred in connection with any actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, in each case as such Securityholder Representative Loss is incurred; provided that in the other Transaction Agreements event it is finally adjudicated that a Securityholder Representative Loss or any portion thereof was primarily caused by the willful misconduct, bad faith or gross negligence of the Securityholder Representative, the Securityholder Representative will reimburse the Securityholders the amount of such indemnified Securityholder Representative Loss attributable to such willful misconduct, bad faith or gross negligence. Any Securityholder Representative Losses actually suffered or incurred may be recovered by the Securityholder Representative only in the following order: (i) first, from the Securityholder Representative Expense Amount, (ii) second, from the amounts in the Escrow Amount otherwise distributable to the Securityholders pursuant to the terms hereof and the other agreements Indemnity Escrow Agreement; (iii) third, from any Earn-out Amounts at such time as any such amounts would otherwise be distributable to the Securityholders; and instruments contemplated hereby and thereby(iv) last, including all actions and inactions permitted by this Section 10.15 and Section 9.3directly from the Securityholders, in which case indemnification for Securityholder Representative’s Losses actually suffered or incurred shall be fully binding limited to each Securityholder’s Pro-Rata Portion thereof; provided, that while this section allows the Securityholder Representative to be paid from Securityholder Representative Expense Amount, the Escrow Amount, and the Earn-out Amounts, this does not relieve the Securityholders from their obligation to promptly pay such Securityholder Representative Losses as they are suffered or incurred, nor does it prevent the Securityholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Securityholder Representative be required to advance its own funds on them.
behalf of the Securityholders or otherwise, and the Securityholder Representative will not be required to take any action involving any expense unless the payment of such expense is made or provided for in a manner satisfactory to it. The Securityholders who have contributed at least 60% of the Escrow Amount can appoint a new Securityholder Representative by sending notice and a copy of the duly executed written consent appointing such new Securityholder Representative to the Securityholder Representative, Acquiror and the Escrow Agent. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Acquiror, Sub (eor, if after the Effective Time, the Surviving Corporation) By and the execution Escrow Agent. No bond shall be required of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative, and the Securityholder Representative shall have receive no liability to any Equity Holder with respect to actions taken or omitted to be taken in compensation for its capacity as services, other than from the Securityholder Representative and that Expense Amount or as set forth in the Securityholder Representative shall Engagement Agreement. Solely as between the Securityholders, the engagement of the Securityholder Representative is made pursuant to the terms of the Engagement Agreement to be under no obligation to take any action in its capacity as entered with the Securityholder Representative, unless . The Securityholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination termination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred this Agreement. The approval of this Agreement by the Securityholder Representative in responding requisite vote or written consent of Stockholders shall also be deemed to such direction or taking such action. By constitute approval of all arrangements relating to the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that transactions contemplated hereby and to the Securityholder Representative shall be entitled to engage such counsel, experts provisions hereof and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on applicable Ancillary Agreements binding upon the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct)Stockholders, including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms hereinArticle VII hereof.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacity.
Appears in 1 contract
Securityholder Representative. (a) Pursuant to the adoption of By approving this Agreement and the transactions contemplated hereby or by Company Common Stockholders representing greater than 50% executing and delivering a Letter of the outstanding shares of Company Common StockTransmittal, each Equity Holder will be deemed to Company Securityholder shall have irrevocably appointed, authorized and empowered the appointed Securityholder Representative to act as a such Person’s representative for the benefit of each Equity Holder as the exclusive agent and attorney-in-fact with the power and authority to act on behalf of such Person for all purposes in connection with this Agreement, the Additional Agreements and the agreements ancillary hereto and thereto. The Securityholder Representative shall act as the representative of the Company Securityholders in respect of all matters arising under this Agreement, the Additional Agreements and the agreements ancillary hereto and thereto, and shall be authorized to act, or refrain from acting, with respect to any actions to be taken by or on behalf of the Company Securityholders or the Securityholder Representative, including to enforce any rights granted to the Company Securityholders hereunder and thereunder, in each Equity Holder case as the Securityholder Representative believes is necessary or appropriate under this Agreement, the Additional Agreements and/or the agreements ancillary hereto and thereto, for and on behalf of the Company Securityholders. The Company Securityholders shall be bound by all such actions taken by the Securityholder Representative and the Company Securityholders shall not be permitted to take any such actions.
(b) The Securityholder Representative is serving as the Securityholder Representative solely for purposes of administrative convenience, and is not personally liable for any of the obligations of the Company, any of its Subsidiaries or the Company Securityholders hereunder, and Parent (on behalf of itself and its Affiliates) agrees that it will not look to the Securityholder Representative or the underlying assets of the Securityholder Representative for the satisfaction of any obligations of the Company, any of its Subsidiaries or the Company Securityholders. The Securityholder Representative shall not be liable for any error of judgment, or any action taken, suffered or omitted to be taken, in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to performance by the Securityholder Representative of the Securityholder Representative’s duties or the exercise by the Securityholder Representative of the Securityholder Representative’s rights and remedies under this Agreement; provided, howeverany Additional Agreement or any agreement ancillary hereto or thereto, that except in the case of its intentional fraud or willful misconduct. No bond shall be required of the Securityholder Representative. The Securityholder Representative may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Securityholder Representative shall not have no obligation any duty to ascertain or to inquire as to the Equity Holders to actperformance or observance of any of the terms, except as expressly provided herein, and without covenants or conditions of this Agreement or any Additional Agreement or any agreement ancillary hereto or thereto. Without limiting the generality of the foregoing, the Securityholder Representative shall have the full power and authority to:
(i) execute to interpret all the terms and deliver provisions of this Agreement and the Additional Agreements or any agreement ancillary hereto or thereto, and to consent to any amendment hereof or thereof on behalf of the Equity Holders such waivers Company Securityholders and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;their respective successors.
(iic) enforce Each Company Securityholder, jointly and protect the rights severally, agrees to indemnify and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of hold harmless the Securityholder Representative arising out of or under or in any manner relating to this Agreement against all fees and the other Transaction Agreements expenses (including legal fees and the other agreements contemplated hereby and thereby or the Merger expenses) and other transactions provided for herein amounts payable or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated incurred by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to the performance of any of its duties under this Agreement or the Additional Agreements, including any such fees, expenses, or other Transaction Agreements amounts that may be incurred by the Securityholder Representative in connection with any Action to which the Securityholder Representative is made a party by reason of the fact it is or was acting as the Securityholder Representative pursuant to the terms of this Agreement or the Additional Agreements. Notwithstanding the foregoing in this clause (providedc), that, in no such costs, expenses or liabilities shall event will the indemnity contemplated in this clause (c) be paid from by the Company Securityholders to the Securityholder Representative in the form of Indemnification Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f))Shares released pursuant to the Indemnification Escrow Agreement.
(bd) Parent may Parent, the Indemnified Party and the Indemnified Party shall be entitled to rely upon on all statements, representations, decisions of, and actions taken or omitted to be taken by by, the Securityholder Representative pursuant as being the statements, representations, decisions of, and actions of Company Securityholders with respect to the matters relating to this Agreement or any Additional Agreement or any agreement ancillary hereto or thereto. Parent, the Indemnified Party and the other Transaction Agreements, all of which actions or omissions Indemnified Party shall be legally binding upon entitled to deal solely with the Equity HoldersSecurityholder Representative (and shall not be required to deal with any Company Securityholder, in his, her or its capacity as such) with respect to the matters relating to this Agreement or any Additional Agreement or any agreement ancillary hereto or thereto.
(ce) The grant Securityholder Representative may resign at any time by giving twenty (20) days’ notice to Parent and the Company Securityholders; provided, however, in the event of authority provided for herein the resignation or removal of the Securityholder Representative, a new Securityholder Representative (iwho shall be reasonably acceptable to Parent) shall be appointed by the vote or written consent of a majority of the shares of Parent Common Stock, voting together as a single class (with each such share entitled to one vote), then held by the Company Securityholders as of immediately prior to the Effective Time; provided, further, that if any such vacancy is not so filled within thirty (30) days following the occurrence of such vacancy, the Indemnified Party shall be entitled to appoint a successor Securityholder Representative, and the provisions of this Section 12.19 shall apply in all respects to such successor Securityholder Representative.
(f) The appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy by Company Securityholders in any manner or liquidation of for any Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of themreason. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect This authority granted to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease not be affected by the dissolution or other inability to exist or otherwise be unable act of any principal pursuant to fulfill any applicable Law. Amazon Capital Inc. hereby accepts its responsibilities appointment as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successorinitial Securityholder Representative. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any timedecision, all references herein act, consent or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action instruction taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e12.19 on behalf of Company Securityholders (each, an “Securityholder Representative Authorized Action”) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) final, binding and conclusive on Company Securityholders as fully as if such Persons had taken such Securityholder Representative Authorized Action. The parties acknowledge Indemnified Party agrees that the Securityholder Representative’s obligations under this Section 10.15 are solely , as a representative of the Equity Holders and that the Securityholder Representative Representative, shall have no personal responsibility or liability to the Indemnified Party for any expenses, costs or other liabilities incurred by it in such capacityAuthorized Action.
Appears in 1 contract
Securityholder Representative. (a) Pursuant to Pei-▇▇▇▇▇ ▇▇▇▇ (the adoption “Securityholder Representative”) shall serve as representative of the Securityholders for purposes of this Agreement by Company Common Stockholders representing greater than 50% and the Escrow Agreement. Shareholder approval of this Agreement shall include confirmation of the outstanding shares authority of Company Common Stock, each Equity Holder will be deemed to have irrevocably appointed, authorized and empowered the Securityholder Representative to act as a representative for and the benefit payment obligations of each Equity Holder as Securityholder under Section 1.11(e). ESI, Merger Corp. and New Wave may rely upon the exclusive agent and attorney-in-fact with the power and authority to act on behalf acts of each Equity Holder in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative for all purposes permitted hereunder and under the Escrow Agreement. ESI shall provide Securityholder Representative with reasonable access to information about the Surviving Corporation and reasonable assistance from the Surviving Corporation’s officers and employees for purposes of performing the Securityholder Representative’s duties hereunder.
(b) The Securityholder Representative shall act as each Securityholder’s true and lawful attorney and agent to do any and all acts and things described in this Agreement; provided, however, that the Section 1.11(b). The Securityholder Representative shall have no obligation full power of substitution to act in the Equity Holders to actname, except as expressly provided herein, place and without limiting the generality stead of the foregoing, the Securityholder Representative shall have the power and authority to:
(i) execute and deliver on behalf of the Equity Holders such waivers and consents Securityholders in all matters in connection with this Agreement and the other Transaction Agreements Escrow Agreement, including executing and delivering the consummation Escrow Agreement on behalf of the Merger Securityholders and other transactions contemplated hereby creating certain obligations of the Securityholders thereunder. The Securityholder Representative’s power shall include the following powers, without limitation: the power to act for the Securityholders with regard to the indemnification obligations and thereby, including Net Working Capital Adjustment hereunder; the power to compromise any amendments claim on behalf of the Securityholders and to transact matters of litigation or modifications to arbitration in connection with this Agreement or the other Transaction AgreementsEscrow Agreement; the power to solicit, negotiate and approve offers to sell the Surviving Corporation’s interest in each case as Lumitek for the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests account of the Equity Holders following the Effective Time and Securityholders pursuant to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, Section 4.1.5 and to take any all further actions described in Section 4.1.5; the power to do or refrain from doing all such further acts and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and things on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood Securityholders that the Securityholder Representative shall not have any obligation to take any such actionsdeems necessary or appropriate in his sole discretion, and shall not have any liability for any failure to take any execute all such actions);
(iii) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider shall deem necessary or proper or convenient appropriate in connection with the Merger and other transactions contemplated by this Agreement therewith; and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and power to receive service of process in connection with any claims under this Agreement and hereunder. Notwithstanding the other Transaction Agreementsforegoing, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement may not compromise or settle a claim against the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative Securityholders pursuant to this Agreement and Section 7.2 without the other Transaction Agreementsprior written approval of an independent representative of the Securityholders (the “Independent Overseer”), all of which actions or omissions who shall initially be legally binding upon the Equity HoldersBruce Lan.
(c) The grant Any Securityholder Representative or Independent Overseer may be removed from such position upon delivery to the Securityholder Representative or Independent Overseer, as applicable, of authority provided for herein written instructions from a majority in interest of the Securityholders (i) such majority in interest to be determined in accordance with the Securityholders’ respective Percentage Interests). If the Securityholder Representative or Independent Overseer, as applicable, is coupled with an interest removed, resigns, dies or otherwise becomes incapacitated and unable to serve as Securityholder Representative or Independent Overseer, as applicable, such person’s successor shall be irrevocable and survive appointed by a majority in interest of the death, incompetency, bankruptcy or liquidation of any Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction AgreementsSecurityholders.
(d) All actions taken by the The Securityholder Representative under this Agreement or Independent Overseer, as applicable, shall act for the Securityholders hereunder in the manner such person believes to be in the best interest of the Securityholders and consistent with his obligations hereunder, but shall have no duties or obligations except as specifically set forth herein. The Securityholder Representative or Independent Overseer, as applicable, shall receive no compensation for services rendered to the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns Securityholders in such capacity. In acting as if expressly confirmed and ratified in writing by each representative of them. Parent shall serve notice to, and deal exclusively withthe Securityholders, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or therebyIndependent Overseer, as applicable, may rely upon, and shall be entitled protected in acting or refraining from acting upon, an opinion or advice of counsel, certificate of auditors or other certificate, statement, instrument, opinion, report, notice, request, consent, order, arbitrator’s award, appraisal, bond or other paper or documents reasonably believed by him to rely conclusively (without further evidence of any kind whatsoever) on any document purported be genuine and to have been signed or presented by the proper party or parties. Neither the Securityholder Representative nor the Independent Overseer shall be personally liable to have been executed the Securityholders for any act done or omitted hereunder in such capacity except in the event of intentional wrongdoing for personal benefit. The Securityholder Representative and Independent Overseer may consult with counsel and any advice of such counsel shall be full and complete authorization and protection in respect to any action taken or suffered or omitted by him in such capacity in good faith and in accordance with such opinion of counsel. The Securityholder Representative may perform his duties as Securityholder Representative either directly or by or on behalf of any of the Equity Holders as fully binding upon them. If through his agents or attorneys, and the Securityholder Representative shall resign, dissolve, cease to exist or otherwise not be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed responsible to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If Securityholders for any reason there is no Securityholder Representative at misconduct or negligence on the part of any time, all references herein agent or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken attorney appointed with due care by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on themhim hereunder.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably The Securityholders shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as indemnify, hold harmless and defend the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take Independent Overseer from and against, and reimburse such person with respect to, any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be all Damages reasonably incurred by the Securityholder Representative or Independent Overseer, as applicable, as a result of such person acting in responding to good faith in such direction capacity under this Agreement or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled such person’s duties hereunder. Subject to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), prior written approval by the execution of a Letter of Transmittal each Equity Holder irrevocably Independent Overseer, which approval shall agree that not be unreasonably withheld, the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements from the Securityholder Expense Escrow Amount of its counsel, experts and other agents and consultants) any reasonable out-of-pocket costs incurred by the Securityholder Representative in such capacity, and shall be entitled on behalf of the Securityholders pursuant to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted authority granted to be taken in its capacity as the Securityholder Representative hereunder, including engaging experts and professional service providers, in each case without having to seek or obtain the consent of any Person under any circumstance (except as set forth in (b) above); provided that the right to reimbursement shall not exceed the amount then available in the Securityholder Expense Escrow Amount and provided further that $100,000 of the Securityholder Expense Escrow Amount shall be reserved to reimburse for those arising out of Securityholder Representative’s gross negligence costs incurred in connection with the Sale or willful misconduct), including the costs a Trust Transfer until such time as a Sale or Trust Transfer has occurred and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative has been reimbursed in accordance full with respect to such transaction. Any written reimbursement requests delivered to ESI and the immediately preceding sentence on a pro rata basis based on their respective equity interest in Escrow Agent by the Company as of immediately prior Securityholder Representative shall be paid to Securityholder Representative concurrently with any release to the Closing. For Securityholders pursuant to the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms hereinEscrow Agreement.
(f) The parties acknowledge that Securityholder Representative shall use good faith efforts to notify ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, the designee of the New Wave Employee Stock Ownership Plan (the “ESOP”), of any notices received by ESI and/or delivered by the Securityholder Representative’s obligations under this Section 10.15 are solely as , and advise such designee on a representative regular basis of any actions that may materially affect the interests of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacityESOP.
Appears in 1 contract
Sources: Merger Agreement (Electro Scientific Industries Inc)
Securityholder Representative. (a) Pursuant to the adoption of this Agreement by Company Common Stockholders representing greater than 50% of the outstanding shares of Company Common Stock, each Equity Holder will be deemed to have Each Securityholder hereby irrevocably appointed, authorized and empowered appoints the Securityholder Representative to act as a representative for the benefit of each Equity Holder as the exclusive agent and such Securityholder’s representative, attorney-in-fact and agent, with full power of substitution to act in the power name, place and authority stead to act on behalf of each Equity Holder such Securityholder in connection with the Merger, which shall include the power and authority as is necessary to carry out the functions assigned to the Securityholder Representative under any amendment of or litigation or arbitration involving this Agreement; provided, howeverincluding, that the without limitation, defending, negotiating, settling or otherwise dealing with claims under ARTICLE IX hereof, and to do or refrain from doing all such further acts and things, and to execute all such documents, as such Securityholder Representative shall have no obligation deem necessary or appropriate in conjunction with any of the transactions contemplated by this Agreement (subject to the Equity Holders to actforegoing limitation), except as expressly provided hereinincluding, and without limiting the generality of the foregoinglimitation, the Securityholder Representative shall have the power and authority topower:
(i) execute and deliver on behalf of the Equity Holders such waivers and consents to take all action necessary or desirable in connection with this Agreement and the other Transaction Agreements and waiver of any condition to the consummation obligations of the Merger and other Securityholders to consummate the transactions contemplated hereby and thereby, including any amendments or modifications to by this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirableAgreement;
(ii) enforce to negotiate, execute and protect deliver all ancillary agreements, statements, certificates, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the rights and interests consummation of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to transactions contemplated by this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that such Securityholder shall execute and deliver any such documents which the Securityholder Representative shall not have any obligation agrees to take any such actions, and shall not have any liability for any failure to take any such actionsexecute);
(iii) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service transactions contemplated hereby;
(iv) to take all actions which under this Agreement and the transactions contemplated hereby may be taken by the Securityholders and to do or refrain from doing any further act or deed on behalf of process the Securityholder which the Securityholder Representative deems necessary or appropriate in connection with any arbitrationits sole discretion relating to the subject matter of this Agreement and the transactions contemplated hereby as fully and completely as such Securityholder could do if personally present; and
(viv) on behalf to comply with final, non-appealable orders or decisions issued or process entered by any court of competent jurisdiction or arbitrator and if the Equity Holders (including by means of establishing an escrow account Securityholders’ Representative complies with any such order, writ, judgment or similar account funded by the Equity Holders)decree, make or receive it shall not be liable to any payments Securityholder or to pay any expenses under other Person by reason of such compliance even though such order, writ, judgment or in connection with this Agreement decree may be subsequently reversed, modified, annulled set aside or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f))vacated.
(b) Parent may rely upon all actions The Securityholder Representative will not be liable to the Securityholders for any action taken or omitted to be taken by the Securityholder Representative pursuant to him, her or it as permitted under this Agreement and the other Transaction Agreementstransactions contemplated hereby, all except if such action is taken or omitted in bad faith, by willful misconduct or due to gross negligence or constitutes a breach of which actions the Securityholder Representative Agreement. The Securityholder Representative will also be fully protected against the Securityholders in relying upon any written notice, demand, certificate or omissions shall document that he, she or it in good faith believes to be legally binding upon the Equity Holdersgenuine (including facsimiles thereof).
(c) The grant of authority provided for herein (i) is coupled Indemnifying Securityholders agree, in accordance with an interest and shall be irrevocable and survive the deaththeir respective Indemnity Pro Rata Share, incompetency, bankruptcy or liquidation of any Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by to indemnify the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice tofor, and deal exclusively with, to hold the Securityholder Representative with respect to harmless against, any and all matters concerning any of the Equity Holders arising out of loss, liability or related to this Agreement expense incurred without willful misconduct, bad faith, gross negligence or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations breach of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith Agreement on the part of the Securityholder Representative, arising out of or in connection with the Securityholder Representative’s carrying out his, her or its duties under this Agreement and the transactions contemplated hereby, including costs and expenses (which may be funded from the Expense Fund or any amount payable to the Securityholders pursuant to Section 3.8, in either case, solely if and to the extent not subject to any claims for indemnification by any Buyer Indemnified Party) shall be entitled to conclusively rely on of successfully defending the opinions Securityholder Representative against any claim of liability with respect thereto. The Securityholder Representative may consult with counsel of his, her or its own choice and advice will have full and complete authorization and protection for any action taken and suffered by it in good faith and in accordance with the opinion of such persons. Without limiting Section 10.15(a)(vi)counsel.
(d) In acting hereunder, by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for act on behalf of all expenses, disbursements Securityholders and advances not on behalf of any one Securityholder.
(including fees and disbursements of its counsel, experts and other agents and consultantse) incurred by If the Securityholder Representative in becomes unable to serve as Securityholder Representative, such capacityother Person or Persons as may be designated by a majority of the Securityholders, based on each Securityholder’s Indemnity Pro Rata Share, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity succeed as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative appointment of the Equity Holders and that the Securityholder Representative hereunder is coupled with an interest and therefore is irrevocable and shall have no personal responsibility survive the bankruptcy, dissolution or liability for liquidation of any expensesSecurityholder, costs and any action taken by the Securityholders’ Representative pursuant to the authority granted in this Section 11.1 shall be effective and absolutely binding as the action of the Securityholders’ Representative; provided, however, that all of the rights and obligations of the Securityholders’ Representative hereunder may be assigned by the Securityholders’ Representative to any successor-in-interest or other liabilities incurred by it in such capacityAffiliate of the Securityholders’ Representative.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Aldeyra Therapeutics, Inc.)
Securityholder Representative. (a) Pursuant to the adoption of By approving this Agreement and the Transactions or by Company Common Stockholders representing greater than 50% executing and delivering a Support Agreement or a Letter of Transmittal, and by receiving the outstanding shares of Company Common Stockbenefits thereof, including any consideration payable hereunder, each Equity Holder will be deemed to Company Securityholder shall have irrevocably appointed, authorized and empowered the appointed Securityholder Representative to act as a representative for the benefit of each Equity Holder as the exclusive such Person’s representative, agent and attorney-in-fact with the power and authority to act on behalf of each Equity Holder in connection such Person as of the Closing with the Merger, which shall include the power and authority as is necessary respect to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority to:
(i) execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Escrow Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or thereinrelated agreements, and to take any and all actions which and make any decisions required or permitted to be taken by Securityholder Representative in connection with this Agreement, the Escrow Agreement or any related agreement, including the exercise of the power to:
(i) give and receive notices and communications;
(ii) authorize delivery to Purchaser of cash from the Purchase Price Adjustment Escrow Fund (or, if necessary, the Indemnification Escrow Fund) in satisfaction of any amounts owed to Purchaser pursuant to Section 2.08 or from the Indemnification Escrow Fund in satisfaction of claims for indemnification made by Purchaser pursuant to ARTICLE 6 or ARTICLE 8, or otherwise authorize payments pursuant to the Escrow Agreement or with respect to the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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)Fund;
(iii) refrain from enforcing agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any right of the Equity Holders, arising out of other matters described in Section 2.08 or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder RepresentativeSection 2.09;
(iv) on behalf agree to, negotiate, enter into settlements and compromises of, and comply with orders of the Equity Holderscourts with respect to claims for indemnification made by Purchaser pursuant to ARTICLE 6 and ARTICLE 8;
(v) litigate, makearbitrate, executeresolve, acknowledge settle or compromise any claim for indemnification pursuant to ARTICLE 6 and ARTICLE 8;
(vi) execute 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 Securityholder Representative, in its sole and absolute discretion, may consider documents necessary or proper desirable to carry out the intent of this Agreement and any Ancillary Document (including the Escrow Agreement);
(vii) make all elections or convenient in connection with the Merger and other transactions decisions contemplated by this Agreement and any Ancillary Document (including the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewithEscrow Agreement);
(vviii) give engage, employ or appoint any agents or representatives (including attorneys, accountants and receive all notices consultants) to assist Securityholder Representative in complying with its duties and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitrationobligations; and
(viix) on behalf take all actions necessary or appropriate in the good faith judgment of Securityholder Representative for the accomplishment of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or foregoing. Purchaser and its Affiliates shall be entitled to pay any expenses under or in connection deal exclusively with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with on all matters related relating to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be taken by the Securityholder Representative pursuant to this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) 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 Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall be binding upon all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, including ARTICLE 8) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported by the Securityholder Representative to have been be executed by or on behalf of any Company Securityholder by Securityholder Representative, and on any other action taken or purported to be taken on behalf of the Equity Holders any Company Securityholder by Securityholder Representative, as being fully binding upon themsuch Person. If Notices or communications to or from Securityholder Representative after the Closing shall constitute notice to or from each of the Company Securityholders. Any decision or action by Securityholder Representative hereunder, including any Agreement between Securityholder Representative and Purchaser relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Company Securityholders and shall be final, binding and conclusive upon each such Person. No Company Securityholder shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section 10.01, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or more Company Securityholders, or by operation of Law, whether by death or other event. Notwithstanding any provision to the contrary contained herein, the Securityholder Representative shall resignnot have the power or authority to execute any amendment, dissolvewaiver, cease document or other instrument that would adversely affect in any material respect the rights, obligations or liability of a specific Company Securityholder (as opposed to exist or otherwise be unable Company Securityholders generally) without the prior written consent of such Company Securityholder. Prior to fulfill its responsibilities as representative of OCGC having given written notice to the Equity HoldersSecurityholder Representative that the MOF Consent has been received, the Equity Holders shallSecurityholder Representative shall not have any liability or obligation to OCGC.
(b) The Securityholder Representative may resign at any time, within ten days after and may be removed for any reason or no reason by the occurrence of such event, appoint (by majority unanimous vote or written consent of the holders Advisory Committee, provided that at least five Business Days’ notice of shares of Company Common Stock) a successor representative and, promptly thereafter, such removal and replacement shall notify be given to the Equity Holders removed Securityholders’ Representative and Parent Parent. In the event of the identity death, incapacity, resignation or removal of Securityholder Representative, a new Securityholder Representative reasonably acceptable to Purchaser shall be appointed by the unanimous vote or written consent of the Advisory Committee. Notice of such successorvote or a copy of the written consent appointing such new Securityholder Representative shall be sent to Purchaser, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Purchaser; provided that until such notice is received, Purchaser and its Affiliates (including the Company Group after Closing) shall be entitled to rely on the decisions and actions of the prior Securityholder Representative as described in Section 10.01(a) above.
(c) The Securityholders Representative shall act in the manner Securityholder Representative believes to be in the best interest of the Company Securityholders and consistent with the obligations under this Agreement and the Escrow Agreement and any related agreements. Any such successor shall succeed to Certain Company Securityholders have entered into an engagement agreement (the rights and obligations of “Securityholder Representative Engagement Agreement”) with the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to provide direction to the Securityholder Representative in which connection with its services under this Agreement, the Escrow Agreement, the Securityholder Representative is authorized Engagement Agreement and any related agreements (such Company Securityholders, including their individual representatives, collectively hereinafter referred to act on behalf as the “Advisory Committee”). Neither the Securityholder Representative nor any member of the Equity Holders Advisory Committee, solely in such Advisory Committee members’ capacity as such, is or shall be deemed to refer personally liable for any of the obligations of the Company Securityholders hereunder, and the Purchaser Indemnitees agree that they will not look to the Equity Holders holding a majority underlying assets of the outstanding shares Securityholder Representative or the members of the Advisory Committee for the satisfaction of any obligations of the Company Common StockSecurityholders. Each Equity Holder upon Neither the execution Securityholder Representative nor any member of a Letter of Transmittal, agrees that any action the Advisory Committee shall be liable to the Company Securityholders for actions taken or omitted by the Securityholder Representative on its behalf pursuant to or the terms of Advisory Committee, respectively, in connection with this Agreement, the other Transaction Agreements and Escrow Agreement or any related agreement, except to the other agreements and instruments contemplated hereby and thereby, including all extent such actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability been determined by a court of competent jurisdiction to any Equity Holder with respect to actions taken or omitted to be taken have constituted, in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as case of the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconductinvolved intentional common law fraud, intentional misconduct or bad faith, or in the case of the Advisory Committee, such Advisory Committee member’s gross negligence or involved intentional common law fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Securityholder Representative or the Advisory Committee shall be conclusive evidence of good faith). The Company Securityholders shall severally and not jointly (in accordance with their Pro Rata Shares), indemnify and hold harmless Securityholder Representative and each member of the Advisory Committee from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, Actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of or in connection with its activities as Securityholder Representative or as a member of the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify Advisory Committee under this Agreement, the Escrow Agreement, the Securityholder Representative Engagement Agreement or any related agreement (the “Representative Losses”), in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest each case as such Representative Loss is suffered or incurred; provided that in the Company as of immediately prior to the Closing. For the avoidance of doubtevent it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by, the provisions of this Section 10.15(e) are contemplated in the determination case of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that Securityholder Representative, the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative gross negligence, intentional common law fraud, intentional misconduct or bad faith of the Equity Holders and that the Securityholder Representative or, in the case of a member of the Advisory Committee, such Advisory Committee member’s gross negligence or involved intentional common law fraud, intentional misconduct or bad faith, the Securityholder Representative or such Advisory Committee member, as applicable, shall have reimburse the Company Securityholders the amount of such indemnified Representative Loss attributable to such gross negligence, intentional common law fraud, intentional misconduct or bad faith. Representative Losses may be recovered by the Securityholder Representative or an Advisory Committee member from (i) the funds in the Securityholder Representative Fund and (ii) any other funds that become payable to the Company Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Securityholders; provided, that while the Securityholder Representative or Advisory Committee member may be paid from the aforementioned sources of funds, this does not relieve the Company Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no personal responsibility event will the Securityholder Representative or any member of the Advisory Committee be required to advance its own funds on behalf of the Company Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability for any expensesor indemnification obligations of, costs or other liabilities incurred by it provisions limiting the recourse against non-parties otherwise applicable to, the Company Securityholders set forth elsewhere in such capacitythis Agreement are not intended to be applicable to the indemnities provided to the Securityholder Representative and members of the Advisory Committee hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Securityholder Representative or an Advisory Committee member or the termination of this Agreement.
Appears in 1 contract
Securityholder Representative. (a) Pursuant to Immediately upon the adoption approval of this Agreement by the Company Common Stockholders representing greater than 50% of the outstanding shares of Company Common StockHolder Approval, each Equity Holder will shall be deemed to have irrevocably appointed, authorized and empowered consented to the Securityholder Representative to act as a representative for the benefit appointment of each Equity Holder Fortis Advisors LLC as the exclusive agent Holders’, Optionholders’ and Warrantholder’s representative and attorney-in-fact with (the “Securityholder Representative”), as the attorney-in-fact for and on behalf of each such Holder, Optionholder and Warrantholder, and the taking by the Securityholder Representative of any and all actions and the making of any decisions required or permitted to be taken by the Securityholder Representative under this Agreement, including the exercise of the power to (a) execute and deliver this Agreement and the Escrow Agreement and, in each case, any amendment thereof or waiver thereunder, (b) authorize delivery to the Parent of the Escrow Amount, or any portion thereof, in satisfaction of claims for indemnification hereunder, (c) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to claims for indemnification hereunder, (d) resolve any claims for indemnification hereunder and take all actions necessary in the judgment of the Securityholder Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement and the Escrow Agreement. Accordingly, the Securityholder Representative has unlimited authority and power to act on behalf of each Equity Holder in connection Holder, Optionholder and Warrantholder with the Merger, which shall include the power and authority as is necessary respect to carry out the functions assigned to the Securityholder Representative under this Agreement; provided, however, that the Securityholder Representative shall have no obligation to the Equity Holders to act, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority to:
(i) execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements Escrow Agreement and the consummation disposition, settlement or other handling of the Merger all claims for indemnification hereunder, rights or obligations arising from and other transactions contemplated hereby and thereby, including any amendments or modifications taken pursuant to this Agreement or the other Transaction AgreementsEscrow Agreement. The Holders, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce Optionholder and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and Warrantholder will be bound by all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest taken by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements Escrow Agreement, and the Parent shall be entitled to rely on any decision, action, consent or on behalf instruction of the Equity Securityholder Representative as being the decision, action, consent or instruction of the Holders, including Optionholders and Warrantholder, and the Parent and Merger Sub are hereby relieved from any liability to satisfy costsany Person for acts done by them in accordance with any such decision, expenses act, consent or liabilities of instruction.
(b) Certain Company Indemnifying Parties have entered, or prior to the Closing will enter, into a letter agreement with the Securityholder Representative to provide direction to the Securityholder Representative in connection with matters related the performance of its services under this Agreement and the Escrow Agreement (such Company Indemnifying Parties, including their individual representatives, the “Advisory Group”). Neither the Advisory Group nor the Securityholder Representative (and its members, managers, directors, officers, contractors, agents and employees) (collectively, the “Representative Group”) will incur any liability with respect to any action taken or suffered by the Representative Group in reliance upon any notice, direction, instruction, consent, statement or other document believed by the Representative Group to be genuine and to have been signed by the proper Person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except the Securityholder Representative’s own willful misconduct, bad faith or gross negligence. In all questions arising under this Agreement or the other Transaction Agreements (providedEscrow Agreement, thatthe Representative Group may rely on the advice of counsel, no experts or consultants, and the Representative Group will not be liable to the Company Indemnifying Parties for anything done, omitted or suffered in good faith by the Representative Group based on such advice. The Securityholder Representative will not be required to take any action involving any expense or risk of its own funds unless the payment of such expense is made or provided for in a manner satisfactory to the Securityholder Representative. The Holders, Optionholders and Warrantholder shall severally indemnify, defend and hold harmless the Representative Group from and against any and all losses, claims, damages, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or liabilities shall be amounts paid from in settlement (collectively, the Escrow Account other than when “Representative Expenses”) incurred without willful misconduct, bad faith or gross negligence on the part of the Representative Group and if expressly permitted arising out of or in accordance connection with Section 3.6(e) the acceptance or administration of their duties. The powers, immunities and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted rights to be taken by indemnification granted to the Securityholder Representative pursuant to Group under this Agreement and the other Transaction Agreements, all of which actions or omissions shall be legally binding upon the Equity Holders.
(c) The grant of authority provided for herein Agreement: (i) is are coupled with an interest and shall be irrevocable and survive the death, incompetencyincompetence, bankruptcy or liquidation of the respective Holder, Optionholder or Warrantholder and shall be binding on any Equity Holder and successor thereto, (ii) shall survive the Merger delivery of an assignment by any Holder, Optionholder or Warrantholder of the whole or any fraction of his, her or its interest in the Escrow Fund and (iii) shall survive the resignation or removal of Securityholder Representative or any member of the Advisory Group and the consummation Closing and/or any termination of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by the Securityholder Representative under this Agreement and the other Transaction Agreements shall Escrow Agreement.
(c) The Representative Expenses may be binding upon all Equity Holders recovered first from the Expense Fund. To the extent that the Expense Fund is insufficient and their respective successors funds remain and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, are to be distributed from the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed Escrow Fund to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf Indemnifying Parties pursuant to the terms of this Agreement and the Escrow Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall receive reimbursement from the Company Indemnifying Parties directly out of any such distributions that are being made to the Company Indemnifying Parties for any and all Representative Expenses that have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as not previously been reimbursed. To the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, extent there are insufficient funds in the sole determination Expense Fund and the Escrow Fund to reimburse Representative Expenses, the balance of Securityholder Representative, are sufficient to protect the Securityholder such Representative against the costs, expenses and liabilities which Expenses may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification recovered directly from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis Company Indemnifying Parties based on their respective equity interest in the Company as of immediately prior Consideration Pro Rata Percentage (rounded to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms hereinnearest cent).
(fd) The parties acknowledge that approval of this Agreement by the Securityholder Representative’s obligations under this Company Holder Approval shall also be deemed to constitute approval of all arrangements relating to the transactions contemplated hereby and to the provisions hereof binding upon the Holders, Optionholders and Warrantholder, including the covenants and agreements included in Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacity8.2.
Appears in 1 contract
Sources: Merger Agreement (AOL Inc.)
Securityholder Representative. (a) Pursuant to the adoption of this Agreement by Company Common Stockholders representing greater than 50% By virtue of the outstanding shares execution and delivery of Company Common Stocka Release, and without any further action of any of the Indemnity Stockholders or the Company, each Equity Holder will of the Indemnity Stockholders shall be deemed to have irrevocably appointed, authorized and empowered agreed to appoint the Securityholder Representative to act as a representative for the benefit of each Equity Holder as the their exclusive agent and attorney-in-fact with the power fact, as their sole and authority to act exclusive representative for and on behalf of the Indemnity Stockholders and to receive and distribute payments, to give and receive notices and communications, to authorize payment to any TheMaven Indemnified Party from the Indemnity Escrow and otherwise in satisfaction of indemnification claims by any TheMaven Indemnified Party pursuant to Section 10 of this Agreement, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any indemnification claim hereunder or any dispute between any TheMaven Indemnified Party and any Indemnity Stockholders, in each Equity Holder in connection with case relating to this Agreement, the Escrow Agreement or the Merger, which shall include and to take all other actions that are either (i) necessary or appropriate in the power and authority as is necessary to carry out the functions assigned to judgment of the Securityholder Representative under for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement; provided. Notwithstanding the foregoing, however, that the Securityholder Representative shall have no obligation to act on behalf of the Equity Holders to actIndemnity Stockholders, except as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority to:
(i) execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Agreement and in the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments or modifications to this Escrow Agreement or the other Transaction Agreements, in each case as the Securityholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) enforce and protect the rights and interests of the Equity Holders following the Effective Time and to enforce and protect the rights and interests of the Securityholder Representative arising out of or under or in any manner relating to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective Time. Without limiting the generality of the foregoing, following the Effective Time, the Securityholder Representative may (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action initiated by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholder 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) refrain from enforcing any right of the Equity Holders, arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 generalfor the avoidance of doubt, to do any and all things and to take any and all action that the Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities there are no obligations of the Securityholder Representative in connection with matters related to this Agreement any ancillary agreement, schedule, exhibit or the other Transaction Agreements (provided, that, no such costs, expenses Company Disclosure Schedule. The Securityholder Representative may resign at any time. The immunities and rights to indemnification shall survive the resignation or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions taken or omitted to be taken by removal of the Securityholder Representative pursuant to and the Closing and/or any termination of this Agreement and the other Transaction Agreements, all of which actions or omissions Escrow Agreement. No bond shall be legally binding upon required of the Equity Holders.
(c) Securityholder Representative. Other than in connection with any claim pursued by a TheMaven Indemnified Party directly against an Indemnity Stockholder, notices or communications to or from the Securityholder Representative shall constitute notice to or from the Indemnity Stockholders. The grant of authority provided for herein powers, immunities and rights to indemnification granted to the Securityholder Representative hereunder: (i) is are coupled with an interest and shall be irrevocable and survive the death, incompetencyincompetence, bankruptcy or liquidation of any Equity Holder Indemnity Stockholder and shall be binding on any successor thereto, and (ii) shall survive the Merger and delivery of an assignment by any Indemnity Stockholder of the consummation whole or any fraction of other transactions contemplated hereby and by his, her or its interest in the other Transaction AgreementsIndemnity Escrow.
(db) All actions taken The Securityholder Representative may (i) rely and act upon any statement, report or opinion prepared by or any advice received from the auditors, counsel or other professional advisors of the Securityholder Representative, (ii) rely upon any signature believed by him to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Indemnity Stockholder or other party. Absent fraud, gross negligence or willful misconduct, neither the Securityholder Representative under nor his Representatives shall be responsible or held liable, in each case to any Indemnity Stockholder for any loss or damage resulting from so relying or from acting in accordance with this Agreement or the Escrow Agreement, in each case, as the Securityholder Representative.
(c) A decision, act, consent or instruction of the Securityholder Representative, including an amendment of any provision of this Agreement pursuant to Section 11.12 of this Agreement, shall constitute a decision of the Indemnity Stockholders and shall be final, binding and conclusive upon the other Transaction Agreements Indemnity Stockholders and shall be binding upon all Equity Holders and on their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice towriting, and deal exclusively withTheMaven may rely upon any such decision, the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of act, consent or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations instruction of the Securityholder Representative as representative being the decision, act, consent or instruction of the Equity Holders hereunderIndemnity Stockholders. If for All defenses which may be available to any reason there is no Securityholder Representative at any timeIndemnity Stockholder to contest, all references herein negate or in any other agreement or instrument contemplated hereby to disaffirm the action of the Securityholder Representative taken in which good faith under this Agreement or the Escrow Agreement are waived. TheMaven is hereby relieved from any liability to any person for any acts done by TheMaven in accordance with such decision, act, consent or instruction of the Securityholder Representative.
(d) Each Indemnity Stockholder agrees (i) to jointly and severally indemnify and hold harmless the Securityholder Representative is authorized from and against any and all losses, claims, damages, costs, judgements, fines, amounts paid in settlement, expenses (including, without limitation, legal fees and expenses on a full indemnity basis, costs of counsel and other skilled professionals and in connection with seeking recovery from insurers) and liabilities (collectively, such losses, claims, damages, costs, expenses and liabilities being the “Indemnified Liabilities”) to act on behalf of which Securityholder Representative may become subject, insofar as such Indemnified Liabilities (or actions, suits, or proceedings, including any inquiry or investigation or claim, in respect thereof) arise out of, in any way relate to, or result from its acting as Securityholder Representative under this Agreement or under the Equity Holders shall be deemed Escrow Agreement and (ii) to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by reimburse the Securityholder Representative upon demand for all legal or other expenses, if any, incurred in connection with its acting as Securityholder Representative, other than in the case of fraud, gross negligence or willful misconduct, on its behalf pursuant condition that the Securityholder Representative has acted in compliance with this Agreement. Such Indemnified Liabilities may be recovered, first, from any distribution of the Indemnity Escrow otherwise distributable to the terms Indemnity Stockholders at the time of this Agreementdistribution and, second, directly from the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree Indemnity Stockholders. The Indemnity Stockholders acknowledge that the Securityholder Representative shall have no not be required to expend or risk his own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to any Equity Holder with respect to actions taken this Agreement, the Escrow Agreement or omitted to be taken in its capacity as the Securityholder Representative and that transactions contemplated hereby. Furthermore, the Securityholder Representative shall not be under no obligation required to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representativeits determination, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to performing such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Securityholder Representative (except for those arising out of Securityholder Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims. The Equity Holders will indemnify the Securityholder Representative in accordance with the immediately preceding sentence on a pro rata basis based on their respective equity interest in the Company as of immediately prior to the Closing. For the avoidance of doubt, the provisions of this Section 10.15(e) are contemplated in the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms hereinactions.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that the Securityholder Representative shall have no personal responsibility or liability for any expenses, costs or other liabilities incurred by it in such capacity.
Appears in 1 contract
Sources: Merger Agreement (theMaven, Inc.)
Securityholder Representative. (a) Pursuant to the adoption of this Agreement by Company Common Stockholders representing greater than 50% Each of the outstanding shares of Company Common StockSecurityholders hereby irrevocably constitutes, each Equity Holder will be deemed to have irrevocably appointed, authorized designates and empowered the Securityholder Representative to act as a representative for the benefit of each Equity Holder appoints ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as the exclusive sole representative, agent and attorney-in-fact with the power attorney for and authority to act on behalf of each Equity Holder Securityholder and each Securityholder Group Member (the “Securityholder Representative”) to (a) represent and act for it, him or her for all purposes relating to, make any and all determinations and agreements in connection with, and take or refrain from taking any other actions for and on his, her or its behalf pursuant to, this Agreement, any Securityholder Ancillary Agreement (other than the Amended and Restated Employment Agreements and the Non-Competition Agreements), any Company Ancillary Agreement or any Parent Ancillary Agreement, (b) give and receive notices and communications, organize or assume defense of third-party claims, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to third-party claims including pursuant to Article VIII and Sections 9.19 and 9.20, (c) take or refrain from taking any other actions specified in this Agreement, any Securityholder Ancillary Agreement (other than the MergerAmended and Restated Employment Agreements and the Non-Competition Agreements), which shall include the power and authority as is necessary any Company Ancillary Agreement or any Parent Ancillary Agreement to carry out the functions assigned to be taken by any Securityholder, the Securityholder Representative under or any Securityholder Group Member, (d) authorize releases from the Escrow Account, and (e) to take all actions necessary or appropriate in the judgment of the Securityholder Representative for the accomplishment of the foregoing in accordance with the terms and provisions of this Agreement; provided, howeverany Securityholder Ancillary Agreement (other than the Amended and Restated Employment Agreements and the Non-Competition Agreements), that any Company Ancillary Agreement or any Parent Ancillary Agreement. Any decision, act, consent, agreement or instruction of the Securityholder Representative shall have no obligation constitute a decision, act, consent, agreement or instruction of each Securityholder and each Securityholder Group Member and shall be final, binding and conclusive and Parent may rely upon the same. This appointment and grant of power and authority is coupled with an interest and is in consideration of the mutual covenants made herein and is irrevocable and shall not be terminated by any act of the Securityholders or by operation of law, whether by death or incapacity of any Securityholder or by the occurrence of any other event. Each Securityholder hereby consents to the Equity Holders taking of any and all actions and the making of any decisions required or permitted to act, except be taken or made by Securityholder Representative pursuant to this Section 9.23. If ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or any successor to such person as expressly provided herein, and without limiting the generality of the foregoing, the Securityholder Representative shall have the power and authority to:
(i) execute and deliver on behalf of the Equity Holders such waivers and consents in connection with this Agreement and the other Transaction Agreements and the consummation of the Merger and other transactions contemplated hereby and thereby, including any amendments dies or modifications is unwilling or unable to this Agreement or the other Transaction Agreements, in each case serve as the Securityholder Representative, then the Securityholders hereby agree that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall be appointed as the successor to act as the Securityholder Representative. Notices or communications to or from the Securityholder Representative hereunder shall constitute notice to or from each of the Securityholders. Each Securityholder shall, in its sole discretionproportion to such Securityholder’s respective Securityholder Percentage (other than any matters involving less than all of the Securityholders for which the applicable Securityholders shall bear their respective pro rata share of such costs and expenses), may deem necessary pay or desirable;
reimburse the Stockholder Representative, upon presentation of an invoice, for all costs and expenses of the Stockholder Representative (including, without limitation, fees and expenses of counsel to the Stockholder Representative) in connection with: (i) the enforcement of this Agreement and/or any Securityholder Ancillary Agreement (other than the Amended and Restated Employment Agreements and the Non-Competition Agreements), any Company Ancillary Agreement or any Parent Ancillary Agreement and/or the protection or preservation of the rights of each Securityholder and/or the Securityholders against Parent, or any of their respective assets, and (ii) enforce and protect the rights and interests any amendment, modification or waiver of any of the Equity Holders following terms of this Agreement and/or any Securityholder Ancillary Agreement (other than the Effective Time Amended and Restated Employment Agreements and the Non-Competition Agreements), any Company Ancillary Agreement or any Parent Ancillary Agreement (whether or not any such amendment, modification or waiver is signed or becomes effective) (collectively, the “Securityholder Representative Expenses”). Such amounts shall first be paid out of an advance amount equal to enforce One Million Dollars ($1,000,000) (together with any interest thereon, the “Advance Amount”), which will be delivered by Parent to the Securityholder Representative at Closing as a deduction from the Estimated Cash Closing Consideration and protect which the rights Securityholder Representative may maintain in a separate account for application under this Section 9.23. Any portion of the Advance Amount remaining after final settlement of the Contingent Payment pursuant to Section 2.8 and interests payment of the Securityholder Representative arising out of or under or Expenses shall be distributed to the Securityholders in any manner relating proportion to this Agreement and the other Transaction Agreements and the other agreements contemplated hereby and thereby or the Merger and other transactions provided for herein or therein, and to take any and all actions which the their respective Securityholder Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements for and on behalf of the Equity Holders following the Effective TimePercentages. Without limiting the generality of the foregoing, following the Effective TimeIn addition, the Securityholder Representative may (A) assert reduce any claim or institute amounts distributed under the Escrow Agreement to the Securityholders for any Action, (B) investigate, defend, contest or litigate any Action initiated amounts due by Parent or any other Person, or by any Governmental Entity against the Securityholder Representative or any of the Equity Holders, (C) receive process on behalf of any or all Equity Holders in any such Action and compromise or settle on such terms as it shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action, (D) file any proofs of debt, claims and petitions as it may deem advisable or necessary and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action (it being understood that the Securityholders under this Section 9.23. The Securityholder Representative shall not have be liable to any obligation to take any such actions, and shall not have any liability Securityholder for any failure to take any such actions);
(iii) refrain from enforcing any right of the Equity Holders, arising out of action or under or in any manner relating to this Agreement or the other documents contemplated hereby; provided, however, that no such failure to act on the part of the Securityholder Representative, except as otherwise provided in this Agreement or the other Transaction Agreements, shall be deemed a waiver of any such right or interest by the Securityholder Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by the Securityholder Representative;
(iv) on behalf of the Equity Holders, 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 Securityholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the Merger and other transactions contemplated by this Agreement and the other Transaction Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(v) give and receive all notices and communications to be given or received by the Equity Holders under this Agreement and to receive service of process in connection with any claims under this Agreement and the other Transaction Agreements, including service of process in connection with any arbitration; and
(vi) on behalf of the Equity Holders (including by means of establishing an escrow account or similar account funded by the Equity Holders), make or receive any payments or to pay any expenses under or in connection with this Agreement or the other Transaction Agreements or on behalf of the Equity Holders, including to satisfy costs, expenses or liabilities of the Securityholder Representative in connection with matters related to this Agreement or the other Transaction Agreements (provided, that, no such costs, expenses or liabilities shall be paid from the Escrow Account other than when and if expressly permitted in accordance with Section 3.6(e) and Section 3.6(f)).
(b) Parent may rely upon all actions omission taken or omitted to be taken by the Securityholder Representative pursuant in good faith under this Agreement, and each Securityholder, in proportion to this Agreement and the their respective Securityholder Percentages (other Transaction Agreements, than any claims involving less than all of the Securityholders for which actions the applicable Securityholders shall bear their respective pro rata share of such costs and expenses), for itself and for his, her or omissions shall be legally binding upon the Equity Holders.
(c) The grant of authority provided for herein (i) is coupled with an interest its heirs, executors, legal representatives and shall be irrevocable assigns, hereby agrees to indemnify and survive the death, incompetency, bankruptcy or liquidation of any Equity Holder and (ii) shall survive the Merger and the consummation of other transactions contemplated hereby and by the other Transaction Agreements.
(d) All actions taken by hold harmless the Securityholder Representative under this Agreement from and the other Transaction Agreements shall be binding upon against any and all Equity Holders and their respective successors and assigns as if expressly confirmed and ratified in writing by each of them. Parent shall serve notice to, and deal exclusively with, claims that may arise against the Securityholder Representative with respect to any and all matters concerning any of the Equity Holders arising out of or related to this Agreement or the other Transaction Agreements and all other agreements or instruments contemplated hereby or thereby or the Merger and other transactions contemplated hereby or thereby, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document purported by the Securityholder Representative to have been executed by or on behalf of any of the Equity Holders as fully binding upon them. If the Securityholder Representative shall resign, dissolve, cease to exist or otherwise be unable to fulfill its responsibilities as representative of the Equity Holders, the Equity Holders shall, within ten days after the occurrence of such event, appoint (by majority vote or written consent of the holders of shares of Company Common Stock) a successor representative and, promptly thereafter, shall notify the Equity Holders and Parent of the identity of such successor. Any such successor shall succeed to the rights and obligations of the Securityholder Representative as representative of the Equity Holders hereunder. If for any reason there is no Securityholder Representative at any time, all references herein or in any other agreement or instrument contemplated hereby to the Securityholder Representative in which the Securityholder Representative is authorized to act on behalf of the Equity Holders shall be deemed to refer to the Equity Holders holding a majority of the outstanding shares of Company Common Stock. Each Equity Holder upon the execution of a Letter of Transmittal, agrees that any action taken by the Securityholder Representative on its behalf pursuant to the terms of this Agreement, the other Transaction Agreements and the other agreements and instruments contemplated hereby and thereby, including all actions and inactions permitted by this Section 10.15 and Section 9.3, shall be fully binding on them.
(e) By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall have no liability to any Equity Holder with respect to actions taken or omitted to be taken in its capacity as the Securityholder Representative and that the Securityholder Representative shall be under no obligation to take any action in its capacity as the Securityholder Representative, unless the Securityholder Representative has been provided with funds, security or indemnities which, in the sole determination of Securityholder Representative, are sufficient to protect the Securityholder Representative against the costs, expenses and liabilities which may be incurred by the Securityholder Representative in responding to such direction or taking such action. By the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Securityholder Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Without limiting Section 10.15(a)(vi), by the execution of a Letter of Transmittal each Equity Holder irrevocably shall agree that the Securityholder Representative shall be entitled to reimbursement for all expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Securityholder Representative in such capacity, and shall be entitled to indemnification from the Equity Holders against any loss, liability ’s actions or expenses arising out of actions taken or omitted to be taken inactions hereunder in its capacity as the Securityholder Representative (except for those arising out in the case of fraud or intentional or willful misconduct on the part of the Securityholder Representative) or against the Securityholder Representative, in its capacity as such, by reason of such Securityholder’s gross negligence fraud, misrepresentation, breach of representation or willful misconduct), including warranty or non-fulfillment of any obligation of such Securityholder contained in this Agreement. In the costs and expenses of investigation and defense of claims. The Equity Holders will event any Securityholder (a “Defaulting Securityholder”) fails to indemnify the Securityholder Representative within sixty (60) days of the date of demand by the Securityholder Representative for such indemnity, the other Securityholders shall, in accordance with proportion to their respective Securityholder Percentages (other than any claims involving less than all of the immediately preceding sentence on a Securityholders for which the applicable Securityholders shall bear their respective pro rata basis based on their respective equity interest in share), make such indemnity payment and shall be subrogated to the rights of the Securityholder Representative against the Defaulting Securityholder to the extent of such payments. Notwithstanding anything to the contrary set forth herein, if any of the loans made by the Company as of immediately prior to the Closing. For the avoidance of doubtdirectors, the provisions of this officers or employees described in Section 10.15(e3.2(k) are contemplated in not repaid within seven (7) days after the determination of the Base Merger Consideration and the Equity Holders agree that no additional consideration shall be required for the enforceability of the terms herein.
(f) The parties acknowledge that the Securityholder Representative’s obligations under this Section 10.15 are solely as a representative of the Equity Holders and that Closing Date, the Securityholder Representative shall have no personal responsibility or liability purchase from the Surviving Corporation, using funds from the Advance Amount, each such loan which is not so repaid, for any expenses, costs or other liabilities incurred by it in such capacityan amount equal to the aggregate principal amount thereof. [Signature pages follow.]
Appears in 1 contract
Sources: Agreement and Plan of Merger (Navigant Consulting Inc)