M&A Boot Camp booklet 2023 - Flipbook - Page 142
10.
MISCELLANEOUS PROVISIONS
10.1 Stockholders’ Agent.
(a) Appointment. By virtue of the adoption of this Agreement, the Indemnitors irrevocably nominate, constitute and appoint Donald A.
Sullivan as the agent and true and lawful attorney in fact of the stockholders (the “Stockholders’ Agent”), with full power of substitution, to
act in the name, place and stead of the Indemnitors for purposes of executing any documents and taking any actions that the Stockholders’
Agent may, in his sole discretion, determine to be necessary, desirable or appropriate in connection with any claim for indemnification,
compensation or reimbursement under Section 9 or under the Escrow Agreement. Donald A. Sullivan hereby accepts his appointment as
Stockholders’ Agent.
(b) Authority. The Indemnitors grant to the Stockholders’ Agent full authority to execute, deliver, acknowledge, certify and file on
behalf of such Indemnitors (in the name of any or all of the Indemnitors or otherwise) any and all documents that the Stockholders’ Agent
may, in his sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as the
Stockholders’ Agent may, in his sole discretion, determine to be appropriate, in performing his duties as contemplated by Section 10.1(a).
Notwithstanding anything to the contrary contained in this Agreement or in any other agreement executed in connection with the
transactions contemplated hereby: (i) each Indemnitee shall be entitled to deal exclusively with the Stockholders’ Agent on all matters
relating to any claim for indemnification, compensation or reimbursement under Section 9 or under the Escrow Agreement; and (ii) each
Indemnitee shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported
to be executed on behalf of any Indemnitor by the Stockholders’ Agent, and on any other action taken or purported to be taken on behalf of
any stockholder by the Stockholders’ Agent, as fully binding upon such stockholder.
(c) Power of Attorney. The Indemnitors recognize and intend that the power of attorney granted in Section 10.1(a): (i) is coupled with
an interest and is irrevocable; (ii) may be delegated by the Stockholders’ Agent; and (iii) shall survive the death or incapacity of each of the
Indemnitors.
(d) Replacement. If the Stockholders’ Agent shall die, resign, become disabled or otherwise be unable to fulfill his responsibilities
hereunder, the Indemnitors shall (by consent of those Persons entitled to at least a majority of the Merger Consideration), within 30 days
after such death, disability or inability, appoint a successor to the Stockholders’ Agent (who shall be reasonably satisfactory to Parent) and
immediately thereafter notify Parent of the identity of such successor. Any such successor shall succeed the Stockholders’ Agent as
Stockholders’ Agent hereunder. If for any reason there is no Stockholders’ Agent at any time, all references herein to the Stockholders’
Agent shall be deemed to refer to the Indemnitors.
(e) Stockholder’s Agent Escrow Fund. The Company and the Stockholders’ Agent will, at least two days prior to the Closing Date,
direct by joint written notice(s) to the Paying Agent that on the Closing Date a portion of the Merger Consideration otherwise payable to the
Effective Time Holders, in an amount equal to the Stockholders’ Agent Escrow Amount, shall be withheld and paid directly by the Paying
Agent to an account maintained by the Escrow Agent pursuant to the terms of an escrow agreement in a form to be agreed to by the
Company and the Stockholders’ Agent (the
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