M&A Boot Camp booklet 2023 - Flipbook - Page 143
“Stockholders’ Agent Escrow Agreement”) as designated in such notice, as a fund for the fees and expenses of the Stockholders’ Agent
incurred in connection with this Agreement (the “Stockholders’ Agent Escrow Fund”), with any balance of the Stockholders’ Agent Escrow
Fund not used for such purposes to be returned to the Effective Time Holders in accordance with the Stockholders’ Agent Escrow
Agreement. The Effective Time Holders, by approval of this Agreement, agree that all interest or other income earned from the investment of
the Stockholders’ Agent Escrow Fund in any Tax year shall be reported as allocated to the Effective Time Holders in proportion to their
interests in the Stockholders’ Agent Escrow Fund.
(f) Exculpation. The Stockholders’ Agent shall not be liable to any Effective Time Holder for any act done or omitted hereunder as
Stockholders’ Agent 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 Effective Time Holders shall jointly and severally indemnify the
Stockholders’ Agent and hold him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part
of the Stockholders’ Agent and arising out of or in connection with the acceptance or administration of his duties hereunder. Nothing in this
paragraph shall limit Parent’s rights against the Stockholders’ Agent.
10.2 Further Assurances. Each party hereto shall execute and cause to be delivered to each other party hereto such instruments and other
documents, and shall take such other actions, as such other party may reasonably request (prior to, at or after the Closing) for the purpose of
carrying out or evidencing any of the transactions contemplated by this Agreement.
10.3 Fees and Expenses. Subject to Sections 1.5 and 9, the Escrow Agreement and Exhibit B, each party to this Agreement shall bear and pay
all fees, costs and expenses that have been incurred or that are incurred in the future by such party in connection with the transactions
contemplated by this Agreement, including all fees, costs and expenses incurred by such party in connection with or by virtue of: (a) the
negotiation, preparation and review of this Agreement (including the Disclosure Schedule) and all agreements, certificates, opinions and other
instruments and documents delivered or to be delivered in connection with the transactions contemplated by this Agreement; (b) the preparation
and submission of any filing or notice required to be made or given in connection with any of the transactions contemplated by this Agreement,
and the obtaining of any Consent required to be obtained in connection with any of such transactions; and (c) the consummation of the Merger.
10.4 Attorneys’ Fees. If any Legal Proceeding relating to this Agreement or the enforcement of any provision of this Agreement is brought
against any party hereto, the prevailing party shall be entitled to recover reasonable attorneys’ fees, costs and disbursements (in addition to any
other relief to which the prevailing party may be entitled).
10.5 Notices. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in writing
and shall be deemed properly delivered, given and received: (a) if delivered by hand, when delivered; (b) if sent via facsimile with confirmation of
receipt, when transmitted and receipt is confirmed; (c) if sent by electronic mail, telegram, cablegram or other electronic transmission, upon
delivery; (d) if sent by registered, certified or first class mail, the third business day after being sent; and (e) if sent by overnight delivery via a
national courier service, one business day after being sent, in each case to the address or facsimile telephone number set forth beneath the name
of such party below (or to such other address or facsimile telephone number as such party shall have specified in a written notice given to the
other parties hereto):
If to Parent or Merger Sub:
Riverbed Technology, Inc.
199 Fremont St.
San Francisco, CA 94105
Attention: Brett Nissenberg
Facsimile: (415) 520-0208
Email: brett.nissenberg@riverbed.com
53.