Authorization of the Representative. (a) Each Equityholder, upon voting for the approval or consenting to the transactions contemplated herein, will have appointed the Representative, or his designee or successor (as appointed in writing), who is authorized and empowered to act as the agent of the Equityholders in connection with, and to facilitate the consummation of the transactions contemplated in, this Agreement and the other Transaction Documents, and in connection with the activities to be performed on behalf of the Equityholders under this Agreement, for the purposes and with the powers and authority set forth in this Section 11.1, which will include the full power and authority: (i) to take such actions and to execute and deliver such amendments, modifications, waivers and consents in connection with this Agreement and the other Transaction Documents and the consummation of the transactions contemplated herein and thereby as the Representative, in its reasonable discretion, may deem necessary or desirable to give effect to the intentions of this Agreement and the other Transaction Documents; (ii) as the Representative of the Equityholders, to enforce and protect the rights and interests of the Equityholders and to enforce and protect the rights and interests of the Representative arising out of or under or in any manner relating to this Agreement and each other Transaction Document and, in connection therewith, to (A) resolve all questions, disputes, conflicts and controversies concerning (x) the determination of any amounts pursuant to ARTICLE II and (y) indemnification claims pursuant to ARTICLE X; (B) employ such agents, consultants and professionals, to delegate authority to its agents, to take such actions and to execute such documents on behalf of the Equityholders in connection with ARTICLE II and ARTICLE X and the Transaction Documents as the Representative, in its reasonable discretion, deems to be in the best interest of the Equityholders; (C) assert or institute any claim, action, proceeding or investigation; (D) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Parent, any Indemnified Party, or any other Person, against the Representative and/or the Equityholders, and receive process on behalf of any or all Equityholders in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Representative shall determine to be appropriate, give receipts, releases and discharges on behalf of all of Equityholders with respect to any such claim, action, proceeding or investigation; (E) file any proofs, debts, claims and petitions as the Representative may deem advisable or necessary; (F) settle or compromise any claims asserted under ARTICLE II or ARTICLE X; (G) assume, on behalf of all of Equityholders, the defense of any claim that is the basis of any claim asserted under ARTICLE II or ARTICLE X; and (H) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing claims, actions, proceedings or investigations, it being understood that the Representative shall not have any obligation to take any such actions, and shall not have liability for any failure to take such any action; (iii) to enforce payment of any amounts payable to Equityholders, in each case on behalf of Equityholders, in the name of the Representative; (iv) to authorize, if required, the reduction and offset against the Escrow Amount the full amount of any Loss in favor of any Indemnified Party pursuant to ARTICLE X and also any other amounts to be paid to Parent pursuant to this Agreement; (v) to cause to be paid to Equityholders in accordance with ARTICLE II any distributions; (vi) to waive or refrain from enforcing any right of any Equityholder and/or of the Representative arising out of or under or in any manner relating to this Agreement or any other Transaction Document; and (vii) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Representative, in its sole and absolute direction, may consider necessary or proper or convenient in connection with or to carry out the activities described in paragraphs (i) through (iv) above and the transactions contemplated in this Agreement and the other Transaction Documents. (b) Parent, the Indemnified Parties, the Company and each of their Affiliates will be entitled to rely exclusively upon the communications of the Representative relating to the foregoing as the communications of the Equityholders. None of such Persons will be held liable or accountable in any manner for any act or omission of the Representative in such capacity. (c) The grant of authority provided for in this Section 11.1 (a) is coupled with an interest and is being granted, in part, as an inducement to the Company and Parent to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Equityholder and will be binding on any successor thereto, and (b) will survive any distribution from the Escrow Account. Each Equityholder, by voting for the approval of or consenting to the transactions contemplated herein, will have agreed to receive correspondence from the Representative, including in electronic form. (d) If the Representative shall die, be removed, become disabled, resign or otherwise be unable to fulfill its responsibilities hereunder, the Equityholders representing a majority in interest of the Escrow Account shall, within 10 days after such death, removal, disability, resignation or inability, appoint a successor to the Representative and immediately upon or prior to such appointment notify Parent of the identity of such successor. Any such successor shall succeed the former Representative as the Representative hereunder.
Appears in 1 contract
Sources: Merger Agreement (Bazaarvoice Inc)
Authorization of the Representative. (a) Each EquityholderThe Representative hereby is appointed, upon voting for the approval or consenting to the transactions contemplated herein, will have appointed the Representative, or his designee or successor (as appointed in writing), who is authorized and empowered to act as the agent of the Equityholders Indemnifying Parties in connection with, and to facilitate the consummation of the transactions contemplated inby, this Agreement and the other Transaction Documents, and in connection with the activities to be performed on behalf of the Equityholders Indemnifying Parties under this Agreement, for the purposes and with the powers and authority hereinafter set forth in this Section 11.1ARTICLE XIV, which will include the full power and authority:
(i) to take such actions and to execute and deliver such amendments, modifications, waivers and consents in connection with this Agreement and the other Transaction Documents and the consummation of the transactions contemplated herein hereby and thereby as the Representative, in its reasonable discretion, may deem necessary or desirable to give effect to the intentions of this Agreement and the other Transaction Documents;
(ii) as the Representative of the EquityholdersIndemnifying Parties, to enforce and protect the rights and interests of the Equityholders Indemnifying Parties and to enforce and protect the rights and interests of the Representative arising out of or under or in any manner relating to this Agreement and each other Transaction Document and, in connection therewith, to (A) resolve all questions, disputes, conflicts and controversies concerning (x) the determination of any amounts pursuant to ARTICLE II and (y) indemnification claims pursuant to ARTICLE XXIII and (z) Dissenting Shares Claims; (B) employ such agents, consultants and professionals, to delegate authority to its agents, to take such actions and to execute such documents on behalf of the Equityholders Indemnifying Parties in connection with ARTICLE II and ARTICLE X XIII and the Transaction Documents as the Representative, in its reasonable discretion, deems to be in the best interest of the EquityholdersIndemnifying Parties; (C) assert or institute any claim, action, proceeding or investigation; (D) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Parent, any Indemnified Party, or any other Person, against the Representative and/or the EquityholdersIndemnifying Parties, and receive process on behalf of any or all Equityholders Indemnifying Parties in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Representative shall determine to be appropriate, give receipts, releases and discharges on behalf of all of Equityholders the Indemnifying Parties with respect to any such claim, action, proceeding or investigation; (E) file any proofs, debts, claims and petitions as the Representative may deem advisable or necessary; (F) settle or compromise any claims asserted under ARTICLE II or ARTICLE XXIII; (G) assume, on behalf of all of Equityholdersthe Indemnifying Parties, the defense of any claim that is the basis of any claim asserted under ARTICLE II or ARTICLE XXIII; and (H) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing claims, actions, proceedings or investigations, it being understood that the Representative shall not have any obligation to take any such actions, and shall not have liability for any failure to take such any action;
(iii) to enforce payment of any amounts payable to EquityholdersIndemnifying Parties, in each case on behalf of Equityholdersthe Indemnifying Parties, in the name of the Representative;
(iv) to authorize, if required, the reduction and offset against delivery to an Indemnified Party from the Escrow Amount Account of the full amount of any Indemnified Loss in favor of any Indemnified Party pursuant to ARTICLE X XIII and also any other amounts to be paid to Parent pursuant to this Agreement;
(v) to receive and cause to be paid to Equityholders Indemnifying Parties in accordance with ARTICLE II and ARTICLE XIII any distributionsdistributions received by the Representative;
(vi) to waive or refrain from enforcing any right of any Equityholder Indemnifying Party and/or of the Representative arising out of or under or in any manner relating to this Agreement or any other Transaction Document; and
(vii) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Representative, in its sole and absolute direction, may consider necessary or proper or convenient in connection with or to carry out the activities described in paragraphs (i) through (ivvii) above and the transactions contemplated in by this Agreement and the other Transaction Documents.
(b) Parent, the Indemnified PartiesParties and each of their Affiliates, and at and after the Effective Time, the Company Surviving Corporation, the Subsidiaries and each of their Affiliates will be entitled to rely exclusively upon the communications of the Representative relating to the foregoing as the communications of the EquityholdersIndemnifying Parties. None of such Persons (a) need be concerned with the authority of the Representative to act on behalf of all Indemnifying Parties hereunder, or (b) will be held liable or accountable in any manner for any act or omission of the Representative in such capacity.
(c) The grant of authority provided for in this Section 11.1 14.1 (a) is coupled with an interest and is being granted, in part, as an inducement to the Company and Parent to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Equityholder Indemnifying Party and will be binding on any successor thereto, and (b) will survive any distribution from the Escrow Account. Each Equityholder, by voting for the approval of or consenting to the transactions contemplated herein, will have agreed to receive correspondence from the Representative, including in electronic form.
(d) If the Representative shall die, be removed, become disabled, resign or otherwise be unable to fulfill its responsibilities hereunder, the Equityholders representing a majority in interest of the Escrow Account shall, within 10 days after such death, removal, disability, resignation or inability, appoint a successor to the Representative and immediately upon or prior to such appointment notify Parent of the identity of such successor. Any such successor shall succeed the former Representative as the Representative hereunder.
Appears in 1 contract
Sources: Merger Agreement (SolarWinds, Inc.)
Authorization of the Representative. (a) Each EquityholderThe Representative hereby is appointed, upon voting for the approval or consenting to the transactions contemplated herein, will have appointed the Representative, or his designee or successor (as appointed in writing), who is authorized and empowered to act as the agent sole and exclusive representative, agent, proxy and attorney-in-fact of the Equityholders in connection with, and to facilitate the consummation of of, the transactions contemplated in, in this Agreement and the other Transaction Documents, and in connection with the activities to be performed on behalf of the Equityholders under this Agreement. Without limiting the foregoing, for the purposes Representative is hereby appointed, authorized and empowered to act as the sole and exclusive representative, agent, proxy and attorney-in-fact of the Equityholders with the powers and authority set forth in this Section 11.1, which will include the full power and authority:
(i) to take such actions and to execute and deliver such amendments, modifications, waivers and consents in connection with this Agreement, the Representative Engagement Agreement and the other Transaction Documents and the consummation of the transactions contemplated herein and thereby as the Representative, in its reasonable discretion, may deem necessary or desirable to give effect to the intentions of this Agreement and the other Transaction Documents;
(ii) as the Representative of the Equityholders, to enforce and protect the rights and interests of the Equityholders and to enforce and protect the rights and interests of the Representative arising out of or under or in any manner relating to this Agreement and each other Transaction Document and, in connection therewith, to (A) resolve all questions, disputes, conflicts and controversies concerning (x) the determination of any amounts pursuant to ARTICLE Article II and (y) indemnification claims pursuant to ARTICLE Article X; (B) employ such agents, consultants and professionals, to delegate authority to its agents, to take such actions and to execute such documents on behalf of the Equityholders in connection with ARTICLE Article II and ARTICLE Article X and the Transaction Documents as the Representative, in its reasonable discretion, deems to be in the best interest of the Equityholders; (C) assert or institute any claim, action, proceeding or investigation; (D) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Parent, any Indemnified Party, or any other Person, against the Representative and/or the Equityholders, and receive process on behalf of any or all Equityholders in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Representative shall determine to be appropriate, give receipts, releases and discharges on behalf of all of Equityholders with respect to any such claim, action, proceeding or investigation; (E) file any proofs, debts, claims and petitions as the Representative may deem advisable or necessary; (F) settle or compromise any claims asserted under ARTICLE Article II or ARTICLE Article X; (G) assume, on behalf of all of Equityholders, the defense of any claim that is the basis of any claim asserted under ARTICLE Article II or ARTICLE Article X; and (H) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing claims, actions, proceedings or investigations, it being understood that the Representative shall not have any obligation to take any such actions, and shall not have liability for any failure to take such any action;
(iii) to enforce payment of any amounts payable to Equityholders, in each case on behalf of Equityholders, in the name of the Representative;
(iv) to authorize, if required, the reduction and offset against the Escrow Amount Holdback Cash Consideration the full amount of any Indemnified Loss in favor of any Indemnified Party pursuant to ARTICLE Article X and also any other amounts to be paid to Parent pursuant to this Agreement;
(v) to receive and cause to be paid to Equityholders in accordance with ARTICLE Article II any distributionsdistributions received by the Representative;
(vi) to waive or refrain from enforcing any right of any Equityholder and/or of the Representative arising out of or under or in any manner relating to this Agreement or any other Transaction Document; and
(vii) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Representative, in its sole and absolute direction, may consider necessary or proper or convenient in connection with or to carry out the activities described in paragraphs (i) through (ivvi) above and the transactions contemplated in this Agreement and the other Transaction Documents. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Equityholders, except as expressly provided herein and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative shall be entitled to: (i) rely upon the Payment 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 Equityholder or other party. All actions taken by the Representative under this Agreement or the Representative Engagement Agreement shall be binding upon each Equityholder and such Equityholder’s successors as if expressly confirmed and ratified in writing by such Equityholder, and all defenses which may be available to any Equityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement or the Representative Engagement Agreement are waived.
(b) Parent, the Indemnified Parties, the Company and each of their Affiliates will be entitled to rely exclusively upon the communications of the Representative relating to the foregoing as the communications of the Equityholders. None of such Persons (a) need be concerned with the authority of the Representative to act on behalf of all Equityholders hereunder, or (b) will be held liable or accountable in any manner for any act or omission of the Representative in such capacity. Any notices delivered to the Representative in connection with Article X hereof shall constitute notice to all Equityholders.
(c) The grant of authority provided for in this Section 11.1 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder (a) is are coupled with an interest and is are being granted, in part, as an inducement to the Company and Parent to enter into this Agreement and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Equityholder and will be binding on any successor thereto, and (b) will survive any distribution from the Escrow Account. Each Equityholder, by voting for the approval of or consenting to the transactions contemplated herein, will have agreed to receive correspondence from the Representative, including in electronic formHoldback Cash Consideration.
(d) If In the event that the authorized Representative hereunder shall die, be removedresign, become disabled, resign or otherwise be unable to fulfill its responsibilities hereunderpursuant to this Agreement, or otherwise fail to act on behalf of the Company or the Equityholders for any reason, the Equityholders representing a majority in interest whose Applicable Holdback Percentages immediately prior to the Effective Time constituted no less than fifty-one percent (51%) of the Escrow Account shall, within 10 days after such death, removal, disability, resignation or inability, aggregate Applicable Holdback Percentages of all Equityholders shall promptly appoint a successor to the new Representative and immediately upon or prior to such appointment notify Parent of the identity of and contact information for such successor. Any such successor shall succeed the former Representative as the Representative hereunder.
Appears in 1 contract
Sources: Merger Agreement (Realpage Inc)
Authorization of the Representative. (a) Each EquityholderThe Representative hereby is appointed, upon voting for the approval or consenting to the transactions contemplated herein, will have appointed the Representative, or his designee or successor (as appointed in writing), who is authorized and empowered to act as the agent of the Equityholders Securityholders in connection with, and to facilitate the consummation of the transactions contemplated inby, this Agreement and the other Transaction DocumentsDocuments excluding the Stock Restriction and Non-Compete Agreements, and in connection with the activities to be performed on behalf of the Equityholders Securityholders under this Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth in this Section 11.1ARTICLE VII and in the Escrow Agreement, which will shall include the full power and authority:
(ia) to execute and deliver the Escrow Agreement (with such modifications or changes thereto as to which the Representative, in its reasonable discretion, shall have consented to) and to agree to such amendments or modifications thereto as the Representative, in its reasonable discretion, may deem necessary or desirable to give effect to the matters set forth in ARTICLE VI and this ARTICLE VII;
(b) to take such actions and to execute and deliver such amendments, modifications, waivers and consents in connection with this Agreement and the other Transaction Documents excluding the Stock Restriction and Non-Compete Agreements and the consummation of the transactions contemplated herein hereby and thereby as the Representative, in its reasonable discretion, may deem necessary or desirable to give effect to the intentions of this Agreement and the other Transaction DocumentsDocuments excluding the Stock Restriction and Non-Compete Agreements;
(iic) as the Representative of the EquityholdersSecurityholders, to enforce and protect the rights and interests of the Equityholders Securityholders and to enforce and protect the rights and interests of the Representative arising out of or under or in any manner relating to this Agreement, the Escrow Agreement and each other Transaction Document excluding the Stock Restriction and Non-Compete Agreements and, in connection therewith, to (Ai) resolve all questions, disputes, conflicts and controversies concerning (xA) the determination of any amounts pursuant to ARTICLE II and (yB) indemnification claims pursuant to ARTICLE XVI; (Bii) employ such agents, consultants and professionals, to delegate authority to its agents, to take such actions and to execute such documents on behalf of the Equityholders Securityholders in connection with ARTICLE II and ARTICLE X VI and the Transaction Documents Escrow Agreement as the Representative, in its reasonable discretion, deems to be in the best interest of the EquityholdersSecurityholders; (Ciii) assert or institute any claim, action, proceeding or investigation; (Div) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Parent, any Indemnified Party, or any other Person, against the Representative and/or the EquityholdersEscrow Account, and receive process on behalf of any or all Equityholders Securityholders in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Representative shall determine to be appropriate, give receipts, releases and discharges on behalf of all of Equityholders the Securityholders with respect to any such claim, action, proceeding or investigation; (Ev) file any proofs, debts, claims and petitions as the Representative may deem advisable or necessary; (Fvi) settle or compromise any claims asserted under ARTICLE II or ARTICLE XVI or under the Escrow Agreement; (Gvii) assume, on behalf of all of EquityholdersSecurityholders, the defense of any claim that is the basis of any claim asserted under ARTICLE II or ARTICLE XVI or under the Escrow Agreement; and (Hviii) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing claims, actions, proceedings or investigations, it being understood that the Representative shall not have any obligation to take any such actions, and shall not have liability for any failure to take any such any action;
(iiid) to enforce payment from the Escrow Account and of any other amounts payable to EquityholdersSecurityholders, in each case on behalf of EquityholdersSecurityholders, in the name of the Representative;
(ive) to authorize, if required, the reduction authorize and offset against cause to be paid out of the Escrow Amount Account the full amount of any Loss indemnification claims in favor of any Parent Indemnified Party Person pursuant to ARTICLE X VI and also any other amounts to be paid to Parent out of the Escrow Account pursuant to this Agreement and the Escrow Agreement;
(vf) to cause to be paid from the Escrow Account to Equityholders the Principals in accordance with ARTICLE II any distributionsEscrow Distributions;
(vig) to waive or refrain from enforcing any right of any Equityholder Securityholder and/or of the Representative arising out of or under or in any manner relating to this Agreement, the Escrow Agreement or any other Transaction DocumentDocument excluding the Stock Restriction and Non-Compete Agreements; and
(viih) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Representative, in its his sole and absolute direction, may consider necessary or proper or convenient in connection with or to carry out the activities described in paragraphs (ia) through (ivg) above and the transactions contemplated in by this Agreement, the Escrow Agreement and the other Transaction Documents.
(b) Parent, Documents excluding the Indemnified Parties, Stock Restriction and Non-Compete Agreements. Parent and the Company and each of their Affiliates will Surviving Corporation shall be entitled to rely exclusively upon the communications of the Representative relating to the foregoing as the communications of the EquityholdersSecurityholders. None Neither Parent nor the Surviving Corporation (a) need be concerned with the authority of such Persons will the Representative to act on behalf of all Securityholders hereunder, or (b) shall be held liable or accountable in any manner for any act or omission of the Representative in such capacity.
(c) . The grant of authority provided for in this Section 11.1 7.01 (ai) is coupled with an interest and is being granted, in part, as an inducement to the Company Company, Principals, Parent and Parent Merger Sub to enter into this Agreement and will shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Equityholder Securityholders and will shall be binding on any successor thereto, and (bii) will shall survive any distribution from the Escrow Account. Each Equityholder, by voting for the approval of or consenting to the transactions contemplated herein, will have agreed to receive correspondence from the Representative, including in electronic form.
(d) If the Representative shall die, be removed, become disabled, resign or otherwise be unable to fulfill its responsibilities hereunder, the Equityholders representing a majority in interest of the Escrow Account shall, within 10 days after such death, removal, disability, resignation or inability, appoint a successor to the Representative and immediately upon or prior to such appointment notify Parent of the identity of such successor. Any such successor shall succeed the former Representative as the Representative hereunder.
Appears in 1 contract
Sources: Merger Agreement (Perficient Inc)
Authorization of the Representative. (a) Each EquityholderSeller, upon voting for by his, her or its execution of this Agreement, hereby appoints, authorizes and empowers the approval or consenting to the transactions contemplated herein, will have appointed the Representative, or his designee or successor (as appointed in writing), who is authorized and empowered Representative to act as the agent of the Equityholders in connection with, and to facilitate the consummation of the transactions contemplated in, this Agreement and the other Transaction Documents, and in connection with the activities to be performed on behalf of the Equityholders under this Agreement, Sellers for the purposes and with the powers and authority hereinafter set forth in this Section 11.1Article X and in the Escrow Agreement, which will shall include the full power and authority:
(ia) to take execute, deliver and perform the Escrow Agreement (with such actions and modifications or changes thereto as to execute and deliver such amendments, modifications, waivers and consents in connection with this Agreement and the other Transaction Documents and the consummation of the transactions contemplated herein and thereby as which the Representative, in its reasonable discretion, may deem necessary or desirable to give effect to the intentions of this Agreement and the other Transaction Documentsshall have consented to);
(iib) as the Representative of the EquityholdersSellers, to enforce and protect the rights and interests of the Equityholders and to enforce and protect the rights and interests of the Representative Sellers arising out of or under or in any manner relating to this Agreement and each other Transaction Document the Escrow Agreement and, in connection therewith, to (Ai) resolve all questions, disputes, conflicts and controversies concerning (x) the determination of any amounts pursuant to ARTICLE II Article II, matters relating to Taxes pursuant to Section 5.05 and (y) indemnification claims pursuant to ARTICLE XArticle VII; (Bii) employ such agents, consultants and professionals, to delegate authority to its agents, to take such actions and to execute such documents on behalf of the Equityholders Sellers in connection with ARTICLE II and ARTICLE X and the Transaction Documents Article VII as the Representative, in its reasonable discretion, deems to be in the best interest of the EquityholdersSellers; (Ciii) assert or institute any claim, action, proceeding or investigationinvestigation pursuant to Article VII; (Div) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Parent, any Indemnified PartyBuyer, or any other Person, against all of the Representative and/or the EquityholdersSellers, and receive process on behalf of any or all Equityholders of the Sellers in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Representative shall determine to be appropriate, give receipts, releases and discharges on behalf of all of Equityholders the Sellers with respect to any such claim, action, proceeding or investigationinvestigation pursuant to Section 5.05(b) or Article VII; (Ev) file any proofs, debts, claims and petitions as the Representative may deem advisable or necessary; (Fvi) settle or compromise any claims asserted under ARTICLE II Section 5.05(b) or ARTICLE XArticle VII; (Gvii) assume, on behalf of all of Equityholdersthe Sellers, the defense of any claim that is the basis of any claim asserted under ARTICLE II Section 5.05(b) or ARTICLE XArticle VII; and (Hviii) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing claims, actions, proceedings or investigationsinvestigations pursuant to Section 5.05(b) or Article VII; and (ix) pay amounts out of the Representative Holdback Amount in connection with the foregoing, it being understood that the Representative shall not have any obligation to take any such actions, shall not be required to expend any of its own funds, and shall not have liability for any failure to take such any action; provided, however, that no Seller shall be liable for any amount in excess of the Representative Holdback Amount that exceeds such Seller’s Percentage Interest of any amounts for which such Seller is obligated to pay pursuant to any action taken by the Representative pursuant to this Article X;
(iiic) to enforce payment authorize and cause to be paid out of any amounts payable to Equityholders, in each case on behalf of Equityholders, in the name of the Representative;
(iv) to authorize, if required, the reduction and offset against the Escrow Amount the full amount of any Loss in favor of any Indemnified Party pursuant to ARTICLE X indemnification claims under Section 5.05(b) or Article VII and also any other amounts to be paid to Parent out of the Escrow Amount pursuant to this Agreement or the Escrow Agreement;
(v) to cause to be paid to Equityholders in accordance with ARTICLE II any distributions;
(vi) to waive or refrain from enforcing any right of any Equityholder and/or of the Representative arising out of or under or in any manner relating to this Agreement or any other Transaction Document; and
(viid) 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 amendments, modifications and supplements to, and waivers of the provisions of this Agreement, and, in general, to do any and all things and to take any and all action that the Representative, in its sole and absolute direction, may consider necessary or proper or convenient in connection with or to carry out the activities described in paragraphs paragraph (i) through (iva) above and the transactions contemplated in by this Agreement and the other Transaction DocumentsEscrow Agreement.
(be) Parent, the Indemnified Parties, Buyer and the Company and each of their Affiliates will shall be entitled to rely exclusively upon the communications of the Representative relating Representative, but only as it relates to the foregoing foregoing, as the communications of the EquityholdersSellers. None Neither Buyer nor the Company need be concerned with the authority of such Persons will the Representative to act on behalf of all the Sellers hereunder or shall be held liable or accountable in any manner for any act or omission of the Representative in such capacity.
(cf) The grant of authority provided for in this Section 11.1 (a) 10.01 is coupled with an interest and is being granted, in part, as an inducement to the Company and Parent Buyer to enter into this Agreement and will shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Equityholder Seller and will shall be binding on any successor thereto, and (b) will survive any distribution from the Escrow Account. Each Equityholder, by voting for the approval of or consenting to the transactions contemplated herein, will have agreed to receive correspondence from the Representative, including in electronic form.
(d) If the Representative shall die, be removed, become disabled, resign or otherwise be unable to fulfill its responsibilities hereunder, the Equityholders representing a majority in interest of the Escrow Account shall, within 10 days after such death, removal, disability, resignation or inability, appoint a successor to the Representative and immediately upon or prior to such appointment notify Parent of the identity of such successor. Any such successor shall succeed the former Representative as the Representative hereunder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Amc Entertainment Holdings, Inc.)
Authorization of the Representative. (a) Each EquityholderThe Representative hereby is appointed, upon voting for the approval or consenting to the transactions contemplated herein, will have appointed the Representative, or his designee or successor (as appointed in writing), who is authorized and empowered to act as the agent of the Equityholders Securityholders in connection with, and to facilitate the consummation of the transactions contemplated inby, this Agreement and the other Transaction Documentsrelated transaction documents, and in connection with the activities to be performed on behalf of the Equityholders Securityholders under this Agreement, for the purposes and with the powers and authority hereinafter set forth in this Section 11.1Article 9, which will shall include the full power and authority:
(ia) to take such actions and to execute and deliver such amendments, modifications, waivers and consents in connection with this Agreement and the other Transaction Documents transaction documents and the consummation of the transactions contemplated herein hereby and thereby as the Representative, in its his reasonable discretion, may deem necessary or desirable to give effect to the intentions of this Agreement and the other Transaction Documentstransaction documents;
(iib) as the Representative of the EquityholdersSecurityholders, to enforce and protect the rights and interests of the Equityholders Securityholders and to enforce and protect the rights and interests of the Representative arising out of or under or in any manner relating to this Agreement and each other Transaction Document transaction document and, in connection therewith, to (Ai) resolve all questions, disputes, conflicts and controversies concerning (xA) the determination of any amounts pursuant to ARTICLE II under this Agreement and (yB) indemnification claims pursuant to ARTICLE XArticle 8; (Bii) employ such agents, consultants and professionals, to delegate authority to its his agents, to take such actions and to execute such documents on behalf of the Equityholders Securityholders in connection with ARTICLE II Article 2 and ARTICLE X and the Transaction Documents Article 8 as the Representative, in its his reasonable discretion, deems to be in the best interest of the EquityholdersSecurityholders; (Ciii) assert or institute any claim, action, proceeding or investigation; (Div) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Parent▇▇▇▇▇▇, any Indemnified PartyParent or the Surviving Corporation, or any other Person, against the Representative and/or the EquityholdersRepresentative, and receive process on behalf of any or all Equityholders Securityholders in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Representative shall determine to be appropriate, give receipts, releases and discharges on behalf of all of Equityholders the Securityholders with respect to any such claim, action, proceeding or investigation; (Ev) file any proofs, debts, claims and petitions as the Representative may deem advisable or necessary; (Fvi) settle or compromise any claims asserted under ARTICLE II Article 2 or ARTICLE XArticle 8; (Gvii) assume, on behalf of all of Equityholdersthe Securityholders, the defense of any claim that is the basis of any claim asserted under ARTICLE II Article 2 or ARTICLE X; Article 8, and (Hviii) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing claims, actions, proceedings or investigations, it being understood that the Representative shall not have any obligation to take any such actions, and shall not have liability for any failure to take such any action;
(iiic) to enforce payment from the Holdback Amount and of any other amounts payable to Equityholdersthe Securityholders, in each case on behalf of Equityholdersthe Securityholders, in the name of the Representative;
(ivd) to authorize, if required, authorize and instruct the reduction and offset against Parent to release funds from the Escrow Holdback Amount the full amount of any Loss in favor of any Indemnified Party pursuant to ARTICLE X and also any other amounts to be paid to Parent pursuant to accordance with this Agreement;
(v) to cause to be paid to Equityholders in accordance with ARTICLE II any distributions;
(vie) to waive or refrain from enforcing any right of the Securityholders or any Equityholder of them and/or of the Representative arising out of or under or in any manner relating to this Agreement or any other Transaction Documenttransaction document; and
(viif) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Representative, in its his sole and absolute direction, may consider necessary or proper or convenient in connection with or to carry out the activities described in paragraphs (ia) through (ivf) above and the transactions contemplated in by this Agreement and the other Transaction Documents.
(b) Parenttransaction documents. ▇▇▇▇▇▇, Parent and the Indemnified Parties, the Company and each of their Affiliates will Surviving Corporation shall be entitled to rely exclusively upon the communications of the Representative relating to the foregoing as the communications of the EquityholdersSecurityholders. None of such Persons will ▇▇▇▇▇▇, Parent or the Surviving Corporation (i) need be concerned with the authority of the Representative to act on behalf of all Securityholders hereunder, or (ii) shall be held liable or accountable in any manner for any act or omission of the Representative in such capacity.
. Representative covenants and agrees with ▇▇▇▇▇▇, Parent and the Surviving Corporation that at any time notice is given or made to the Representative on behalf of the Securityholders in accordance with Section 10.1, Representative shall promptly cause the notice to be given or made to each Securityholder at the address last known to the Representative. Notwithstanding anything to the contrary contained herein, the parties acknowledge and agree that (ci) the Representative may not enter into or grant any amendments, modifications, waivers or consents described in Section 9.1(a) unless such amendments, modifications, waivers or consents shall affect each Securityholder similarly and to the same relative extent, and (ii) any such amendment, modification, waiver or consent that does not affect any Securityholder similarly and to the same relative extent as it affects other Securityholders must be executed by such Securityholder to be binding on such Securityholder. Each Securityholder, by its approval of this Agreement (or through a separate agreement with the Company or the Representative), makes, constitutes and appoints the Representative such Securityholder’s true and lawful attorney in fact for and in such Securityholder’s name, place, and stead and for its use and benefit, to prepare, execute, certify, acknowledge, swear to, file, deliver, or record any and all agreements, instruments or other documents, and to take any and all actions, that are within the scope and authority of the Representative provided for in this Section 9.1. The grant of authority provided for in this Section 11.1 9.1 (ai) is coupled with an interest and is being granted, in part, as an inducement to the Company and Parent parties hereto to enter into this Agreement and will shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Equityholder Securityholder and will shall be binding on any successor thereto, and (bii) will shall survive any distribution from the Escrow AccountHoldback Amount and any Future Payment Distribution. Each Equityholder, by voting for the approval of or consenting to the transactions contemplated herein, will have agreed to receive correspondence from the Representative, including in electronic form.
(d) If the person serving in the capacity of Representative shall die, be removed, resign that capacity or shall die or become disabled, resign or otherwise be unable to fulfill its responsibilities hereunder, the Equityholders representing a majority in interest of the Escrow Account shall, within 10 days after such death, removal, disability, resignation or inability, Securityholders shall endeavor to appoint a successor Representative who shall be reasonably acceptable to ▇▇▇▇▇▇, Parent and the Surviving Corporation. For this purpose, any person who is offered an Employment Agreement or who is a holder of Common Stock immediately before the Effective Time shall be deemed to be acceptable to ▇▇▇▇▇▇, Parent and the Surviving Corporation. The successor Representative shall execute and immediately upon or prior to deliver an instrument accepting such appointment notify Parent and shall have all the rights, powers, and duties of the identity of such successor. Any such successor predecessor Representative, who shall succeed the former Representative as the Representative hereunderthereupon be discharged from any further liability under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Jl Halsey Corp)
Authorization of the Representative. (a) Each EquityholderThe Representative hereby is appointed, upon voting for the approval or consenting to the transactions contemplated herein, will have appointed the Representative, or his designee or successor (as appointed in writing), who is authorized and empowered to act as the agent (mandatario) of the Equityholders Shareholders in connection with, and to facilitate the consummation of the transactions contemplated inby, this Agreement and the other Transaction Documents, and in connection with the activities to be performed on behalf of the Equityholders Shareholders under this Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth in this Section 11.1Article IX and in the Escrow Agreement, which will shall include the full power and authority:
(ia) to execute and deliver the Escrow Agreement (with such modifications or changes thereto as to which the Representative, in his reasonable discretion, shall have consented to) and to agree to such amendments or modifications thereto as the Representative, in his reasonable discretion, may deem necessary or desirable to give effect to the matters set forth in Article VIII and this Article IX;
(b) to take such actions and to execute and deliver such amendments, modifications, waivers and consents in connection with this Agreement and the other Transaction Documents and the consummation of the transactions contemplated herein hereby and thereby as the Representative, in its his reasonable discretion, may deem necessary or desirable to give effect to the intentions of this Agreement and the other Transaction Documents;
(iic) as the Representative of the EquityholdersShareholders, to enforce and protect the rights and interests of the Equityholders Shareholders and to enforce and protect the rights and interests of the Representative arising out of or under or in any manner relating to this Agreement, the Escrow Agreement and each other Transaction Document and, in connection therewith, to (Ai) resolve all questions, disputes, conflicts and controversies concerning (xA) the determination of any amounts pursuant to ARTICLE Article II and (yB) indemnification claims pursuant to ARTICLE XArticle VIII; (Bii) employ such agents, consultants and professionals, to delegate authority to its his agents, to take such actions and to execute such documents on behalf of the Equityholders Shareholders in connection with ARTICLE Article II and ARTICLE X Article VIII and the Transaction Documents Escrow Agreement as the Representative, in its his reasonable discretion, deems to be in the best interest of the EquityholdersShareholders; (Ciii) assert or institute any claim, action, proceeding or investigation; (Div) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Parent, any Indemnified Party, or any other Person, against the Representative and/or the EquityholdersEscrow Account, and receive process on behalf of any or all Equityholders Shareholders in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Representative shall determine to be appropriate, give receipts, releases and discharges on behalf of all of Equityholders the Shareholders with respect to any such claim, action, proceeding or investigation; (Ev) file any proofs, debts, claims and petitions as the Representative may deem advisable or necessary; (Fvi) settle or compromise any claims asserted under ARTICLE Article II or ARTICLE XArticle VIII or under the Escrow Agreement; (Gvii) assume, on behalf of all of EquityholdersShareholders, the defense of any claim that is the basis of any claim asserted under ARTICLE Article II or ARTICLE XArticle VIII or under the Escrow Agreement; and (Hviii) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing claims, actions, proceedings or investigations, it being understood that the Representative shall not have any obligation to take any such actions, and shall not have liability for any failure to take any such any action;
(iiid) to enforce payment from the Escrow Account and of any other amounts payable to EquityholdersShareholders, in each case on behalf of EquityholdersShareholders, in the name of the Representative;
(ive) to authorize, if required, the reduction authorize and offset against cause to be paid out of the Escrow Amount Account the full amount of any Loss indemnification claims in favor of any Indemnified Party Buyer Indemnitee pursuant to ARTICLE X Article VIII and also any other amounts to be paid to Parent out of the Escrow Account pursuant to this Agreement and the Escrow Agreement;
(vf) to cause to be paid from the Escrow Account to Equityholders the Shareholders in accordance with ARTICLE II Article VIII any distributionsEscrow Distributions;
(vig) to waive or refrain from enforcing any right of any Equityholder Shareholder and/or of the Representative arising out of or under or in any manner relating to this Agreement, the Escrow Agreement or any other Transaction Document; and
(viih) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Representative, in its his sole and absolute direction, may consider necessary or proper or convenient in connection with or to carry out the activities described in paragraphs (ia) through (ivg) above and the transactions contemplated in by this Agreement, the Escrow Agreement and the other Transaction Documents.
(b) Parent, the Indemnified Parties, the Company and each of their Affiliates will . The Buyer Parties shall be entitled to rely exclusively upon the communications of the Representative relating to the foregoing as the communications of the EquityholdersShareholders. None of such Persons will No Buyer Party shall be held liable or accountable in any manner for any act or omission of the Representative in such capacity.
(c) . The grant of authority provided for in this Section 11.1 9.01 (ai) is coupled with an interest and is being granted, in part, as an inducement to the Company Seller Parties, Buyer Parties and Parent the Representative to enter into this Agreement and will shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Equityholder Shareholders and will shall be binding on any successor thereto, and (bii) will shall survive any distribution from the Escrow Account. Each Equityholder, by voting for the approval of or consenting to the transactions contemplated herein, will have agreed to receive correspondence from the Representative, including in electronic form.
(d) If the Representative shall die, be removed, become disabled, resign or otherwise be unable to fulfill its responsibilities hereunder, the Equityholders representing a majority in interest of the Escrow Account shall, within 10 days after such death, removal, disability, resignation or inability, appoint a successor to the Representative and immediately upon or prior to such appointment notify Parent of the identity of such successor. Any such successor shall succeed the former Representative as the Representative hereunder.
Appears in 1 contract
Authorization of the Representative. (a) Each EquityholderThe Representative hereby is appointed, upon voting for the approval or consenting to the transactions contemplated herein, will have appointed the Representative, or his designee or successor (as appointed in writing), who is authorized and empowered to act as the agent of the Equityholders Securityholders in connection with, and to facilitate the consummation of the transactions contemplated inby, this Agreement and the other Transaction Documents, and in connection with the activities to be performed on behalf of the Equityholders Securityholders under this Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth in this Section 11.1ARTICLE X and in the Escrow Agreement, which will shall include the full power and authority:
(ia) to execute and deliver the Escrow Agreement (with such modifications or changes thereto as to which the Representative, in its reasonable discretion, shall have consented to) and to agree to such amendments or modifications thereto as the Representative, in its reasonable discretion, may deem necessary or desirable to give effect to the matters set forth in ARTICLE IX and this ARTICLE X;
(b) to take such actions and to execute and deliver such amendments, modifications, waivers and consents in connection with this Agreement and the other Transaction Documents and the consummation of the transactions contemplated herein hereby and thereby as the Representative, in its reasonable discretion, may deem necessary or desirable to give effect to the intentions of this Agreement and the other Transaction Documents;
(iic) as the Representative of the EquityholdersSecurityholders, to enforce and protect the rights and interests of the Equityholders Securityholders and to enforce and protect the rights and interests of the Representative arising out of or under or in any manner relating to this Agreement, the Escrow Agreement and each other Transaction Document and, in connection therewith, to (Ai) resolve all questions, disputes, conflicts and controversies concerning (xA) the determination of any amounts pursuant to ARTICLE II and (yB) indemnification claims pursuant to ARTICLE XIX; (Bii) employ such agents, consultants and professionals, to delegate authority to its agents, to take such actions and to execute such documents on behalf of the Equityholders Securityholders in connection with ARTICLE II and ARTICLE X IX and the Transaction Documents Escrow Agreement as the Representative, in its reasonable discretion, deems to be in the best interest of the EquityholdersSecurityholders; (Ciii) assert or institute any claim, action, proceeding or investigation; (Div) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Parent, any Indemnified Party, or any other Person, against the Representative and/or the EquityholdersEscrow Amount, and receive process on behalf of any or all Equityholders Securityholders in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Representative shall determine to be appropriate, give receipts, releases and discharges on behalf of all of Equityholders the Securityholders with respect to any such claim, action, proceeding or investigation; (Ev) file any proofs, debts, claims and petitions as the Representative may deem advisable or necessary; (Fvi) settle or compromise any claims asserted under ARTICLE II or ARTICLE XIX or under the Escrow Agreement; (Gvii) assume, on behalf of all of EquityholdersSecurityholders, the defense of any claim that is the basis of any claim asserted under ARTICLE II or ARTICLE XIX or under the Escrow Agreement; and (Hviii) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing claims, actions, proceedings or investigations, it being understood that the Representative shall not have any obligation to take any such actions, and shall not have liability for any failure to take such any action;
(iiid) to enforce payment from the Escrow Account and of any other amounts payable to EquityholdersSecurityholders, in each case on behalf of EquityholdersSecurityholders, in the name of the Representative;
(ive) to authorize, if required, the reduction authorize and offset against cause to be paid out of the Escrow Amount Account the full amount of any Loss indemnification claims in favor of any Parent Indemnified Party Person pursuant to ARTICLE X and also any other amounts to be paid to Parent out of the Escrow Account pursuant to this Agreement and the Escrow Agreement;
(vf) to cause to be paid of the Escrow Account to Equityholders Securityholders in accordance with ARTICLE II any distributionsEscrow Distributions;
(vig) to waive or refrain from enforcing any right of any Equityholder Securityholder and/or of the Representative arising out of or under or in any manner relating to this Agreement, the Escrow Agreement or any other Transaction Document; and
(viih) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Representative, in its sole and absolute direction, may consider necessary or proper or convenient in connection with or to carry out the activities described in paragraphs (ia) through (ivg) above and the transactions contemplated in by this Agreement, the Escrow Agreement and the other Transaction Documents.
(b) . Parent, the Indemnified Parties, the Colorado Company and each of their Affiliates will Delaware Company shall be entitled to rely exclusively upon the communications of the Representative relating to the foregoing as the communications of the EquityholdersSecurityholders. None Neither Parent, Colorado Company nor Delaware Company (a) need be concerned with the authority of such Persons will the Representative to act on behalf of all Securityholders hereunder, or (b) shall be held liable or accountable in any manner for any act or omission of the Representative in such capacity.
(c) . The grant of authority provided for in this Section 11.1 10.01 (ai) is coupled with an interest and is being granted, in part, as an inducement to the Company Colorado Company, Delaware Company, Parent and Parent Merger Sub to enter into this Agreement and will shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Equityholder Securityholders and will shall be binding on any successor thereto, and (bii) will shall survive any distribution from the Escrow Account. Each Equityholder, by voting for the approval of or consenting to the transactions contemplated herein, will have agreed to receive correspondence from the Representative, including in electronic form.
(d) If the Representative shall die, be removed, become disabled, resign or otherwise be unable to fulfill its responsibilities hereunder, the Equityholders representing a majority in interest of the Escrow Account shall, within 10 days after such death, removal, disability, resignation or inability, appoint a successor to the Representative and immediately upon or prior to such appointment notify Parent of the identity of such successor. Any such successor shall succeed the former Representative as the Representative hereunder.
Appears in 1 contract
Sources: Merger Agreement (Perficient Inc)
Authorization of the Representative. (a) Each EquityholderThe Representative hereby is appointed, upon voting for the approval or consenting to the transactions contemplated herein, will have appointed the Representative, or his designee or successor (as appointed in writing), who is authorized and empowered to act as the agent of the Equityholders Securityholders in connection with, and to facilitate the consummation of the transactions contemplated inby, this Agreement and the other Transaction Documentsrelated transaction documents, and in connection with the activities to be performed on behalf of the Equityholders Securityholders under this Agreement, for the purposes and with the powers and authority hereinafter set forth in this Section 11.1Article 8, which will shall include the full power and authority:
(ia) to take such actions and to execute and deliver such amendments, modifications, waivers and consents in connection with this Agreement and the other Transaction Documents transaction documents and the consummation of the transactions contemplated herein hereby and thereby as the Representative, in its his reasonable discretion, may deem necessary or desirable to give effect to the intentions of this Agreement and the other Transaction Documentstransaction documents;
(iib) as the Representative of the EquityholdersSecurityholders, to enforce and protect the rights and interests of the Equityholders Securityholders and to enforce and protect the rights and interests of the Representative arising out of or under or in any manner relating to this Agreement and each other Transaction Document transaction document and, in connection therewith, to (Ai) resolve all questions, disputes, conflicts and controversies concerning (xA) the determination of any amounts pursuant to ARTICLE II under this Agreement and (yB) indemnification claims pursuant to ARTICLE XArticle 7; (Bii) employ such agents, consultants and professionals, to delegate authority to its his agents, to take such actions and to execute such documents on behalf of the Equityholders Securityholders in connection with ARTICLE II Article 2 and ARTICLE X and the Transaction Documents Article 7 as the Representative, in its his reasonable discretion, deems to be in the best interest of the EquityholdersSecurityholders; (Ciii) assert or institute any claim, action, proceeding or investigation; (Div) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Parent▇▇▇▇▇▇, any Indemnified PartyParent or the Surviving Corporation, or any other Person, against the Representative and/or the EquityholdersRepresentative, and receive process on behalf of any or all Equityholders Securityholders in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Representative shall determine to be appropriate, give receipts, releases and discharges on behalf of all of Equityholders the Securityholders with respect to any such claim, action, proceeding or investigation; (Ev) file any proofs, debts, claims and petitions as the Representative may deem advisable or necessary; (Fvi) settle or compromise any claims asserted under ARTICLE II Article 2 or ARTICLE XArticle 7; (Gvii) assume, on behalf of all of Equityholdersthe Securityholders, the defense of any claim that is the basis of any claim asserted under ARTICLE II Article 2 or ARTICLE XArticle 7; and (Hviii) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing claims, actions, proceedings or investigations, it being understood that the Representative shall not have any obligation to take any such actions, and shall not have liability for any failure to take such any action;
(iiic) to enforce payment from the Holdback Amount and of any other amounts payable to Equityholdersthe Securityholders, in each case on behalf of Equityholdersthe Securityholders, in the name of the Representative;
(ivd) to authorize, if required, authorize and instruct the reduction and offset against Parent to release funds from the Escrow Holdback Amount the full amount of any Loss in favor of any Indemnified Party pursuant to ARTICLE X and also any other amounts to be paid to Parent pursuant to accordance with this Agreement;
(v) to cause to be paid to Equityholders in accordance with ARTICLE II any distributions;
(vie) to waive or refrain from enforcing any right of the Securityholders or any Equityholder of them and/or of the Representative arising out of or under or in any manner relating to this Agreement or any other Transaction Documenttransaction document; and
(viif) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Representative, in its his sole and absolute direction, may consider necessary or proper or convenient in connection with or to carry out the activities described in paragraphs (ia) through (ivf) above and the transactions contemplated in by this Agreement and the other Transaction Documents.
(b) Parenttransaction documents. ▇▇▇▇▇▇, Parent and the Indemnified Parties, the Company and each of their Affiliates will Surviving Corporation shall be entitled to rely exclusively upon the communications of the Representative relating to the foregoing as the communications of the EquityholdersSecurityholders. None of such Persons will ▇▇▇▇▇▇, Parent or the Surviving Corporation (i) need be concerned with the authority of the Representative to act on behalf of all Securityholders hereunder, or (ii) shall be held liable or accountable in any manner for any act or omission of the Representative in such capacity.
. Representative covenants and agrees with ▇▇▇▇▇▇, Parent and the Surviving Corporation that at any time notice is given or made to the Representative on behalf of the Securityholders in accordance with Section 9.1, Representative shall promptly cause the notice to be given or made to each Securityholder. Notwithstanding anything to the contrary contained herein, the parties acknowledge and agree that (ci) the Representative may not enter into or grant any amendments, modifications, waivers or consents described in Section 8.1(a) unless such amendments, modifications, waivers or consents shall affect each Securityholder similarly and to the same relative extent, and (ii) any such amendment, modification, waiver or consent that does not affect any Securityholder similarly and to the same relative extent as it affects other Securityholders must be executed by such Securityholder to be binding on such Securityholder. Each Securityholder, by its approval of this Agreement, makes, constitutes and appoints the Representative such Securityholder’s true and lawful attorney-in-fact for and in such Securityholder’s name, place, and stead and for its use and benefit, to prepare, execute, certify, acknowledge, swear to, file, deliver, or record any and all agreements, instruments or other documents, and to take any and all actions, that are within the scope and authority of the Representative provided for in this Section 8.1. The grant of authority provided for in this Section 11.1 8.1 (ai) is coupled with an interest and is being granted, in part, as an inducement to the Company and Parent parties hereto to enter into this Agreement and will shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Equityholder Securityholder and will shall be binding on any successor thereto, and (bii) will shall survive any distribution from the Escrow Account. Each Equityholder, by voting for the approval of or consenting to the transactions contemplated herein, will have agreed to receive correspondence from the Representative, including in electronic formHoldback Amount and any Future Payment Distribution.
(d) If the Representative shall die, be removed, become disabled, resign or otherwise be unable to fulfill its responsibilities hereunder, the Equityholders representing a majority in interest of the Escrow Account shall, within 10 days after such death, removal, disability, resignation or inability, appoint a successor to the Representative and immediately upon or prior to such appointment notify Parent of the identity of such successor. Any such successor shall succeed the former Representative as the Representative hereunder.
Appears in 1 contract
Sources: Merger Agreement (Jl Halsey Corp)