Holders Representative. (a) Effective upon and by virtue of the vote of the Stockholders approving and adopting this Agreement and the Merger (including pursuant to the Written Consent) and in respect of the other Holders by virtue of approval of the Merger pursuant to any Letter of Transmittal or other receipt of consideration in respect of the Merger, and without any further act of any of the Holders, the Holders’ Representative shall be hereby appointed as the representative of the Holders and as the attorney-in-fact and agent for and on behalf of each such Holder for purposes of this Agreement and the Escrow Agreement and will take such actions to be taken by the Holders’ Representative under this Agreement and the Escrow Agreement and such other actions on behalf of such Holders as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including (i) taking all actions and making all filings on behalf of such Holders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement or the Escrow Agreement, (ii) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement or the Escrow Agreement on behalf of such Holders, including indemnifications claims, (iii) negotiating and executing any waivers or amendments of this Agreement or the Escrow Agreement (provided that any amendment that shall adversely and disproportionately affect the rights or obligations of any Holder shall require the prior written consent of such Holder) and (iv) taking all other actions that are either necessary or appropriate in its judgment for the accomplishment of the foregoing or contemplated by the terms of this Agreement or the Escrow Agreement. The Holders’ Representative hereby accepts such appointment. The Holders’ Representative shall use commercially reasonable efforts based on contact information available to the Holders’ Representative to keep the Holders reasonably informed with respect to actions of the Holders’ Representative pursuant to the authority granted the Holders’ Representative under this Agreement which actions have a material impact on the amounts payable to the Holders. Each Holder shall promptly provide written notice to the Holders’ Representative of any change of address of such Holder. (b) A decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) hereunder shall constitute a decision, act, consent or instruction of all Holders and shall be final, binding and conclusive upon each of such Holders, and the Escrow Agent and Buyer may rely upon any such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) as being the decision, act, consent or instruction of each and every such Holder. The Escrow Agent and Buyer shall be relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person). (c) The Holders’ Representative shall have the right to recover from, at its sole discretion, the Holders’ Representative Expense Fund Account, the Holders’ Representative Expense Fund Property or any disbursements to be made to the Holders from the funds in the Indemnity Escrow Account, prior to any distribution to the Holders, (i) Holders’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and (ii) any amounts to which it is entitled pursuant to the indemnification provision in Section 9.10(e) (each item in clauses (i) and (ii) of this Section 9.10(c) referred to as a “Charge”, and collectively the “Charges”). In the event the Indemnity Escrow Account funds so distributed, the Holders’ Representative Expense Fund Account and the Holders’ Representative Expense Fund Property (collectively, the “Escrow Property”) is insufficient to satisfy the Charges, then the Holders (including the Holders’ Representative itself) will be obligated to pay the Charges in excess of the Escrow Property pro rata, based on their relative Indemnity Percentages. (d) The Holders’ Representative will incur no liability with respect to any action taken or suffered by any party in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Holders’ 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 its own gross negligence, bad faith or willful misconduct. In all questions arising under this Agreement or the Escrow Agreement, the Holders’ Representative may rely on the advice of outside counsel, and the Holders’ Representative will not be liable to any Holder for anything done, omitted or suffered in good faith by the Holders’ Representative based on such advice. (e) The Holders shall severally (each based on its Indemnity Percentage) but not jointly indemnify the Holders’ Representative and hold the Holders’ Representative harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct, on the part of the Holders’ Representative and arising out of or in connection with the acceptance or administration of the Holders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Holders’ Representative. (f) At any time during the term of the Escrow Agreement, a majority-in-interest of Holders may, by written consent, appoint a new representative as the Holders’ Representative. Notice together with a copy of the written consent appointing such new representative and bearing the signatures of Holders of a majority-in-interest of those Holders must be delivered to Buyer and, if applicable, the Escrow Agent not less than ten days prior to such appointment. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer and, if applicable, the Escrow Agent. For the purposes of this Section 9.10, a “majority-in-interest of the Holders” shall mean Holders representing in the aggregate over 50% of the percentage interests in the Escrow Property. (g) In the event that the Holders’ Representative becomes unable or unwilling to continue in its capacity as Holders’ Representative, or if the Holders’ Representative resigns as a Holders’ Representative, a majority-in-interest of the Holders shall use its reasonable best efforts, by written consent, to appoint a new representative as the Holders’ Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of the Holders of a majority-in-interest of the Holders must be delivered to Buyer and, if applicable, 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 Buyer and, if applicable, the Escrow Agent.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Actua Corp), Merger Agreement (Actua Corp)
Holders Representative. (a) Effective upon and by virtue of the vote of the Stockholders approving and adopting this Agreement and the Merger (including pursuant to the Written Consent) and in respect of the other Holders by virtue of approval of the Merger pursuant to any Letter of Transmittal or other receipt of consideration in respect of the Merger, and without any further act of any of the Holders, The Share Recipients hereby appoint ▇▇▇▇▇ ▇▇▇▇▇▇ as the Holders’ Representative shall be hereby appointed as the representative of the Holders and as the attorney-in-fact and agent for and on behalf of each such Holder for purposes of this Agreement and the Escrow Agreement Agreement, and will take such actions Holders’ Representative hereby accepts the appointment as the Holders’ Representative. Parent shall be entitled to be taken by deal exclusively with the Holders’ Representative under on all matters relating to this Agreement and the Escrow Agreement Agreement, and such other actions 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 Share Recipient by the Holders’ Representative, and on any other action taken or purported to be taken on behalf of any Share Recipient by the Holders’ Representative, as fully binding upon such Holders Share Recipients. If the Holders’ Representative shall die, become disabled or otherwise be unable or unwilling to fulfill her responsibilities as it may deem necessary or appropriate agent of the Share Recipients, then the Share Recipients constituting the recipients of a majority in interest of the Parent Common Shares issued in connection with the Merger shall, within twenty (20) days after such death, disability or to consummate resignation, appoint a successor agent and, promptly thereafter, shall notify Parent of the transactions contemplated hereby or thereby, including (i) taking all actions and making all filings on behalf identity of such Holders with successor. If the successor is appointed as described herein, no notice to any Governmental Authority or other Person necessary to effect Share Recipient shall be required. Any such successor shall become the consummation of the transactions contemplated by this Agreement or the Escrow Agreement, (ii) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement or the Escrow Agreement on behalf of such “Holders, including indemnifications claims, (iii) negotiating and executing any waivers or amendments ’ Representative” for purposes of this Agreement or the Escrow Agreement (provided that any amendment that shall adversely and disproportionately affect the rights or obligations of any Holder shall require the prior written consent of such Holder) and (iv) taking all other actions that are either necessary or appropriate in its judgment for the accomplishment of the foregoing or contemplated by the terms of this Agreement or the Escrow Agreement. The If for any reason there is no Holders’ Representative hereby accepts such appointment. The Holders’ Representative shall use commercially reasonable efforts based on contact information available at any time, all references herein to the Holders’ Representative to keep the Holders reasonably informed with respect to actions of the Holders’ Representative pursuant to the authority granted the Holders’ Representative under this Agreement which actions have a material impact on the amounts payable to the Holders. Each Holder shall promptly provide written notice to the Holders’ Representative of any change of address of such Holder.
(b) A decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) hereunder deemed to refer to the Share Recipients who shall constitute a decision, act, act by the consent or instruction approval by Share Recipients constituting a majority in interest of all Holders and the Parent Common Shares issued in connection with the Merger. If the successor is appointed as described herein, no notice to any other Indemnitor shall be final, binding and conclusive upon each of such Holders, and the Escrow Agent and Buyer may rely upon any such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) as being the decision, act, consent or instruction of each and every such Holderrequired. The Escrow Agent Share Recipients shall jointly and Buyer shall be relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person).
(c) The Holders’ Representative shall have the right to recover from, at its sole discretion, the Holders’ Representative Expense Fund Account, the Holders’ Representative Expense Fund Property or any disbursements to be made to the Holders from the funds in the Indemnity Escrow Account, prior to any distribution to the Holders, (i) Holders’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and (ii) any amounts to which it is entitled pursuant to the indemnification provision in Section 9.10(e) (each item in clauses (i) and (ii) of this Section 9.10(c) referred to as a “Charge”, and collectively the “Charges”). In the event the Indemnity Escrow Account funds so distributed, the Holders’ Representative Expense Fund Account and the Holders’ Representative Expense Fund Property (collectively, the “Escrow Property”) is insufficient to satisfy the Charges, then the Holders (including the Holders’ Representative itself) will be obligated to pay the Charges in excess of the Escrow Property pro rata, based on their relative Indemnity Percentages.
(d) The Holders’ Representative will incur no liability with respect to any action taken or suffered by any party in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Holders’ 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 its own gross negligence, bad faith or willful misconduct. In all questions arising under this Agreement or the Escrow Agreement, the Holders’ Representative may rely on the advice of outside counsel, and the Holders’ Representative will not be liable to any Holder for anything done, omitted or suffered in good faith by the Holders’ Representative based on such advice.
(e) The Holders shall severally (each based on its Indemnity Percentage) but not jointly indemnify the Holders’ Representative and hold the Holders’ Representative harmless against any loss, liability or expense incurred without gross negligencerecklessness, bad faith or willful misconduct, intentional misconduct on the part of the Holders’ Representative and arising out of or in connection with the acceptance or administration of the Holders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel or other professional retained by the Holders’ Representative.
(f) At any time during . By virtue of their approval of this Agreement, the term Share Recipients hereby agree to pay the costs and expenses of the Escrow Agreement, a majority-in-interest Holders’ Representative in connection with the acceptance and administration of Holders may, by written consent, appoint a new representative as the Holders’ Representative’s duties hereunder. Notice together with a copy of Notwithstanding the written consent appointing such new representative and bearing the signatures of Holders of a majority-in-interest of those Holders must be delivered to Buyer andforegoing sentence, if applicable, the Escrow Agent not less than ten days prior to such appointment. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer and, if applicable, the Escrow Agent. For the purposes of this Section 9.10, a “majority-in-interest of the Holders” shall mean Holders representing in the aggregate over 50% of the percentage interests as set forth in the Escrow Property.
(g) In the event that Agreement the Holders’ Representative becomes unable or unwilling shall be reimbursed for such reasonable costs and expenses by making claims against the Escrow Shares from time to continue in its capacity time as Holders’ Representativesuch costs and expenses are incurred, or if the Holders’ Representative resigns as a Holders’ Representative, a majority-in-interest provided that not more than fifty percent (50%) of the Holders Escrow Shares shall use its reasonable best efforts, by written consent, be subject to appoint a new representative as the Holders’ Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of the Holders of a majority-in-interest of the Holders must be delivered to Buyer and, if applicable, 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 Buyer and, if applicable, the Escrow Agentclaims.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Primus Knowledge Solutions Inc)
Holders Representative. (a) Effective Each Holder by executing this Note hereby constitutes and appoints ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ as Holders’ Representative, with full power and authority to act in the name of and for and on behalf of such Holder with respect to the receipt of payments due under this Note. Each Holder by executing this Note hereby constitutes and appoints ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ as Holders’ Representative, with full power and authority to act in the name of and for and on behalf of such Holder with respect to all other matters arising in connection with, or related to, this Note and the transactions contemplated hereby upon and by virtue written authorization with respect to any matter from Holders entitled to receive 51% of the vote total payments under the Note yet unpaid. Each Holder agrees that Issuer and its Affiliates shall have the absolute right and authority to rely upon the acts taken or omitted to be taken by Holders’ Representative on behalf of the Stockholders approving and adopting this Agreement and the Merger (including pursuant Holders with respect to the Written Consent) and in respect of the other Holders by virtue of approval of the Merger pursuant to any Letter of Transmittal or other receipt of consideration in payments due under this Note and shall have no liability with respect of the Mergerthereto, and without none of Issuer or any further act of its Affiliates shall have any duty to inquire as to the acts and omissions of Holders’ Representative with respect to the receipt of payments due under this Note. Each Holder agrees that all deliveries by Issuer of any payment of the Holders, the principal and interest under this Note to Holders’ Representative shall be hereby appointed as deemed deliveries to the representative Holders; Issuer shall not have any liability with respect to any aspect of the distribution or communication of such deliveries between Holders’ Representative and any Holder; and any disclosure made to Holders’ Representative by or on behalf of Issuer shall be deemed to be a disclosure made to each Holder. Each Holder agrees that any payment made by or on behalf of Issuer to Holders’ Representative on a Holder’s behalf shall be deemed a direct payment to a Holder, and no Holder shall have any recourse against Issuer or any of its Affiliates in the event that such payment is not delivered to such Holder by Holders’ Representative for any reason. All rights of the Holders shall be held and as the attorney-in-fact and agent for and on behalf of each such Holder for purposes of this Agreement and the Escrow Agreement and will take such actions to be taken exercised by the Holders’ Representative under this Agreement and the Escrow Agreement Issuer shall only be obligated to make payments to and such other actions on behalf of such Holders as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or therebyrespond to notices, including (i) taking all actions demands and making all filings on behalf of such Holders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement or the Escrow Agreement, (ii) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement or the Escrow Agreement on behalf of such Holders, including indemnifications claims, (iii) negotiating and executing any waivers or amendments of this Agreement or the Escrow Agreement (provided that any amendment that shall adversely and disproportionately affect the rights or obligations of any Holder shall require the prior written consent of such Holder) and (iv) taking all other actions that are either necessary or appropriate in its judgment for the accomplishment of the foregoing or contemplated by the terms of this Agreement or the Escrow Agreement. The Holders’ Representative hereby accepts such appointment. The Holders’ Representative shall use commercially reasonable efforts based on contact information available to inquiries from the Holders’ Representative to keep the Holders reasonably informed with respect to actions of the Holders’ Representative pursuant to the authority granted the Holders’ Representative under this Agreement which actions have a material impact on the amounts payable to the Holders. Each Holder shall promptly provide written notice to the Holders’ Representative of any change of address of such Holder.
(b) A decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) hereunder shall constitute a decision, act, consent or instruction of all Holders and shall be final, binding and conclusive upon each of such Holders, and the Escrow Agent and Buyer may rely upon any such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) as being the decision, act, consent or instruction of each and every such Holder. The Escrow Agent and Buyer shall be relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person).
(c) The Holders’ Representative shall have the right to recover from, at its sole discretion, the Holders’ Representative Expense Fund Account, the Holders’ Representative Expense Fund Property or any disbursements to be made to the Holders from the funds in the Indemnity Escrow Account, prior to any distribution to the Holders, (i) Holders’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and (ii) any amounts to which it is entitled pursuant to the indemnification provision in Section 9.10(e) (each item in clauses (i) and (ii) of this Section 9.10(c) referred to as a “Charge”, and collectively the “Charges”). In the event the Indemnity Escrow Account funds so distributed, the Holders’ Representative Expense Fund Account and the refuses to, or is no longer capable of, serving as Holders’ Representative Expense Fund Property (collectivelyhereunder, or if a majority of the Holders on the basis of the principal due all Holders under this Note notify Issuer that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ has been replaced, the “Escrow Property”) is insufficient to satisfy the Charges, then the Holders (including the Holders’ Representative itself) will be obligated to pay the Charges in excess of the Escrow Property pro rata, based on their relative Indemnity Percentages.
(d) The Holders’ Representative will incur no liability with respect to any action taken or suffered by any party in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Holders’ 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 its own gross negligence, bad faith or willful misconduct. In all questions arising under this Agreement or the Escrow Agreement, the Holders’ Representative may rely on the advice of outside counsel, and the Holders’ Representative will not be liable to any Holder for anything done, omitted or suffered in good faith by the Holders’ Representative based on such advice.
(e) The Holders shall severally (each based on its Indemnity Percentage) but not jointly indemnify the promptly appoint a successor Holders’ Representative and hold the shall thereafter be a successor Holders’ Representative harmless against any losshereunder, liability or expense incurred without gross negligence, bad faith or willful misconduct, on the part of the and Holders’ Representative shall serve until such successor is duly appointed and arising out of or in connection with the acceptance or administration of the Holders’ Representative’s duties qualified to act hereunder, including the reasonable fees and expenses of any legal counsel retained by the Holders’ Representative.
(f) At any time during the term of the Escrow Agreement, a majority-in-interest of Holders may, by written consent, appoint a new representative as the Holders’ Representative. Notice together with a copy of the written consent appointing such new representative and bearing the signatures of Holders of a majority-in-interest of those Holders must be delivered to Buyer and, if applicable, the Escrow Agent not less than ten days prior to such appointment. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer and, if applicable, the Escrow Agent. For the purposes of this Section 9.10, a “majority-in-interest of the Holders” shall mean Holders representing in the aggregate over 50% of the percentage interests in the Escrow Property.
(g) In the event that the Holders’ Representative becomes unable or unwilling to continue in its capacity as Holders’ Representative, or if the Holders’ Representative resigns as a Holders’ Representative, a majority-in-interest of the Holders shall use its reasonable best efforts, by written consent, to appoint a new representative as the Holders’ Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of the Holders of a majority-in-interest of the Holders must be delivered to Buyer and, if applicable, 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 Buyer and, if applicable, the Escrow Agent.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Primoris Services CORP)
Holders Representative. (a) Effective upon and by virtue The Holders hereby approve the designation of the vote of the Stockholders approving and adopting this Agreement and the Merger (including pursuant Summit Ventures VI-A, L.P. to the Written Consent) and in respect of the other Holders by virtue of approval of the Merger pursuant to any Letter of Transmittal or other receipt of consideration in respect of the Merger, and without any further act of any of the Holders, as the Holders’ Representative shall be hereby appointed as the representative of the Holders and Representative, as the attorney-in-fact and agent for and on behalf of each Holder and its respective heirs, successors and assigns with full power in each Holder’s name and on such Holder for purposes Holder’s behalf to act according to the terms of this Agreement in the absolute discretion of the Holders’ Representative, including with respect to the delivery of the cash payments to be made to the Holders pursuant to this Agreement, asserting or defending claims for indemnification under Article 8 and the Escrow Agreement taking by the Holders’ Representative of any and will take such all actions and the making of any decisions required or permitted to be taken by the Holders’ Representative or the Holders under this Agreement and the Escrow Agreement and such other actions on behalf of such Holders as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or therebyAgreement, including (i) taking all actions and making all filings on behalf of such Holders with any Governmental Authority or other Person necessary to effect the consummation exercise of the transactions contemplated power to: (a) authorize the release or delivery to Parent of all or any portion of the Indemnity Escrow Amount in satisfaction of indemnification claims by this Agreement Parent or the Escrow Agreement, any other Parent Indemnified Party pursuant to Article 8; (iib) agreeing agree to, negotiatingnegotiate, entering enter into settlements and compromises of, complying and comply with orders of courts with respect to, and otherwise administering and handling such indemnification claims; (c) litigate, arbitrate, resolve, settle or compromise any claims under this Agreement or the Escrow Agreement on behalf of such Holders, including indemnifications claims, (iii) negotiating and executing any waivers or amendments of this Agreement or the Escrow Agreement (provided that any amendment that shall adversely and disproportionately affect the rights or obligations of any Holder shall require the prior written consent of such Holder) claim for indemnification made pursuant to Article 8; and (ivd) taking take all other actions that are either necessary or appropriate in its the judgment of the Holders’ Representative for the accomplishment of the foregoing foregoing. These powers of attorney granted under this Section 12.13, and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Holder, by operation of law, whether by such person’s death, disability, protective supervision or contemplated any other event. Without limiting the foregoing, these powers of attorney are to ensure the performance of a special obligation and, accordingly, by approval of the terms Merger, each Holder shall, to the fullest extent permitted by law, be deemed to have waived and renounced its, his or her right to renounce this power of this Agreement attorney unilaterally. By approval of the Merger, each Holder shall, to the fullest extent permitted by law, be deemed to have waived any and all defenses that may be available to contest, negate or disaffirm the Escrow Agreement. The action of the Holders’ Representative hereby accepts such appointmenttaken in good faith. The Holders’ Representative shall use commercially reasonable efforts based have authority and power to act on contact information available behalf of the Holders with respect to the disposition, settlement or other handling of all claims under Article 8 and all rights or obligations arising under Article 8, including all rights to the Indemnity Escrow Amount. The Holders shall, to the fullest extent permitted by law, be bound by all actions taken and documents executed by the Holders’ Representative in connection with Article 8, and Parent shall be entitled to keep the Holders reasonably informed with respect to actions rely on any action or decision of the Holders’ Representative pursuant to the authority granted the Holders’ Representative under this Agreement which actions have a material impact on the amounts payable to the Holders. Each Holder shall promptly provide written notice to the Holders’ Representative of any change of address of such Holder.
(b) A decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) hereunder shall constitute a decision, act, consent or instruction of all Holders and shall be final, binding and conclusive upon each of such Holders, and the Escrow Agent and Buyer may rely upon any such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) as being the decision, act, consent or instruction of each and every such Holder. The Escrow Agent and Buyer shall be relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person).
(c) The Holders’ Representative shall have the right to recover from, at its sole discretion, the Holders’ Representative Expense Fund Account, the Holders’ Representative Expense Fund Property or any disbursements to be made to the Holders from the funds in the Indemnity Escrow Account, prior to any distribution to the Holders, (i) Holders’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and (ii) any amounts to which it is entitled pursuant to the indemnification provision in Section 9.10(e) (each item in clauses (i) and (ii) of this Section 9.10(c) referred to as a “Charge”, and collectively the “Charges”). In performing the event the Indemnity Escrow Account funds so distributed, the Holders’ Representative Expense Fund Account and the Holders’ Representative Expense Fund Property (collectively, the “Escrow Property”) is insufficient to satisfy the Charges, then the Holders (including the Holders’ Representative itself) will be obligated to pay the Charges functions specified in excess of the Escrow Property pro rata, based on their relative Indemnity Percentages.
(d) The Holders’ Representative will incur no liability with respect to any action taken or suffered by any party in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Holders’ 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 its own gross negligence, bad faith or willful misconduct. In all questions arising under this Agreement or the Escrow Agreement, the Holders’ Representative may rely on the advice of outside counsel, and the Holders’ Representative will not be liable to act upon any Holder for anything done, omitted instrument or suffered in good faith other writing believed by the Holders’ Representative based in good faith to be genuine and to be signed or presented by the proper Person and shall not, to the fullest extent permitted by Law, be liable to any Holders in connection with the performance by it of its duties in the absence of reckless or willful misconduct on such advice.
(e) The Holders shall severally (each based on its Indemnity Percentage) but not jointly indemnify the part of the Holders’ Representative and hold as to the interests of the Holders. Notwithstanding the power of attorney granted in this Section 12.13, no agreement, instrument, acknowledgement or other act or document shall be ineffective solely by reason of a Holder (instead of the Holders’ Representative) having signed or given the same directly.
(b) Each Holder hereby agrees that the Holders’ Representative shall, to the fullest extent permitted by law, be indemnified and held harmless by the Holders, severally (in accordance with their respective percentages set forth on Appendix C) from and against any loss, liability or expense incurred without gross negligence, bad faith reckless or willful misconduct, misconduct on the part of the Holders’ Representative toward the Holders and arising out of or in connection with the acceptance or administration of its duties hereunder as to the interests of the Holders. Any out-of-pocket costs and expenses incurred by the Holders’ Representative in connection with actions taken by the Holders’ Representative pursuant to the terms of this Agreement, including the hiring of legal counsel and the incurring of legal fees and costs (collectively, the “Representative Expenses”) shall be the responsibility of the Holders, severally (in accordance with their respective Percentages set forth on Appendix C). Upon final distribution of the Indemnity Escrow Amount, the Holders’ Representative shall be entitled to retain, out of the aggregate portion of funds in the Indemnity Escrow Amount that otherwise are to be distributed to the Holders, if any, pursuant to the terms of this Agreement any unpaid Representative Expenses or other amounts to be paid by the Holders’ Representative on account of claims for indemnification under Article 8, (including all costs associated with any indemnification claims under Article 8), in accordance with Section 12.14. Without limiting the generality of the foregoing, the Holders’ Representative shall have full power and authority to interpret all the terms and provisions of this Merger Agreement, and to consent to any amendment hereof or thereof, on behalf of all the Holders and their respective heirs, successors and assigns.
(c) Holders who in the aggregate hold at least a majority of the Holders’ percentages as set forth on Appendix C shall have the right at any time to remove the then-acting Holders’ Representative and to appoint a successor Holders’ Representative; provided, that the successor Holders’ Representative appointed accept the responsibility of successor Holders’ Representative and agree to perform and be bound by all of the provisions of this Agreement applicable to the Holders’ Representative’s duties hereunder. Each successor Holders’ Representative shall have all of the power, including authority, rights and privileges conferred by this Agreement upon the reasonable fees original Holders’ Representative, and expenses of the term “Holders’ Representative” as used herein and shall be deemed to include any legal counsel retained by the interim or successor Holders’ Representative.
(fd) At Notwithstanding anything to the contrary contained herein, the Company shall act on its own behalf at all times prior to the Effective Time, shall sign on its own behalf and shall not appoint any time during the term of the Escrow Agreement, a majorityPerson as its lawful attorney-in-interest of Holders may, by written consent, appoint a new representative as the Holders’ Representative. Notice together with a copy of the written consent appointing such new representative and bearing the signatures of Holders of a majority-in-interest of those Holders must be delivered to Buyer and, if applicable, the Escrow Agent not less than ten days prior to such appointment. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer and, if applicable, the Escrow Agent. For the purposes of this Section 9.10, a “majority-in-interest of the Holders” shall mean Holders representing in the aggregate over 50% of the percentage interests in the Escrow Propertyfact.
(ge) In the event that If reasonably requested by the Holders’ Representative becomes unable or unwilling for the purpose of satisfying the obligations of Holders’ Representative hereunder, upon reasonable prior notice from the Holders’ Representative and execution of a standard confidentiality agreement, and provided that it does not unduly burden its operations, the Surviving Company shall (i) give Holders’ Representative and its authorized representatives reasonable access during reasonable times to continue in such of the Surviving Company’s and each Subsidiary’s books and records as are reasonably necessary for the Holders’ Representative to satisfy its capacity as obligations hereunder, and (ii) make its officers, employees and accountants, available to Holders’ Representative and cause them to assist and cooperate with Holders’ Representative, or if to the extent reasonably necessary to allow the Holders’ Representative resigns as a Holders’ Representative, a majority-in-interest of the Holders shall use to satisfy its reasonable best efforts, by written consent, to appoint a new representative as the Holders’ Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of the Holders of a majority-in-interest of the Holders must be delivered to Buyer and, if applicable, 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 Buyer and, if applicable, the Escrow Agentobligations hereunder.
Appears in 1 contract
Holders Representative. (a) The parties have designated JCF III HoldCo I L.P. as the initial Holders’ Representative for certain limited purposes set forth herein and JCF III HoldCo I L.P. hereby agrees to act in such capacity effective as of the Effective upon and by Time. By virtue of the vote of the Stockholders approving duly executing and adopting this Agreement and the Merger (including pursuant to the Written Consent) and in respect of the other Holders by virtue of approval of the Merger pursuant to any delivering a Letter of Transmittal or other receipt Holder Acknowledgement, as the case may be, which contains (i) the irrevocable agreement of consideration in respect an Oxygen Holder to be bound by this Section 6.18 and to appoint JCF III HoldCo I L.P. as the initial Holders’ Representative and (ii) an irrevocable power of attorney granted to the MergerHolders’ Representative for the Holders’ Representative to take the actions contemplated by this Section 6.18, and without any further act of any such Oxygen Holder (an “Electing Oxygen Holder”) shall have the benefit of the Holders’ Representative exercising the rights set forth herein with respect to such Electing Oxygen Holder. Following the Effective Time, the Holders’ Representative may be changed at any time by approval of Electing Oxygen Holders that collectively would be entitled to more than 60% of any subsequent Released Holdback Amount (“Requisite Holders”); provided that such Holders’ Representative shall be reasonably acceptable to Carbon. In the event that the Holders’ Representative has resigned or been removed, a new Holders’ Representative shall be appointed by a vote of the Requisite Holders, such appointment to become effective upon the written acceptance thereof by the new Holders’ Representative. STRICTLY CONFIDENTIAL EXECUTION
(b) The Holders’ Representative shall have such powers and authority as are necessary to carry out the functions assigned to it under this Agreement; provided that the Holders’ Representative shall have no power or authority to act on behalf of any Oxygen Holder who is not an Electing Oxygen Holder. Without limiting the generality of the foregoing, from and after the Effective Time, the Holders’ Representative shall be hereby appointed as the representative of the Holders have full power, authority and as the attorney-in-fact and agent for and discretion to act on behalf of each such Holder for purposes an Electing Oxygen Holder’s in connection with the transactions contemplated by Section 6.17 of this Agreement Agreement, including executing documents, making all elections and the Escrow Agreement and will take such actions decisions to be taken made by such Electing Oxygen Holder in connection with the Holders’ Representative under transactions contemplated by Section 6.17 of this Agreement Agreement, giving and the Escrow Agreement and such other actions receiving notices on behalf of such Holders as it may deem necessary or appropriate in connection with or Electing Oxygen Holder and receiving the Holdback Reports and disputing the matters contained therein pursuant to consummate the transactions contemplated hereby or thereby, including (i) taking all actions and making all filings on behalf of such Holders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement or the Escrow Agreement, (ii) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect toSection 6.17, and otherwise administering and handling any claims under this Agreement or the Escrow Agreement on behalf of such Holders, including indemnifications claims, (iii) negotiating and executing any waivers or amendments of this Agreement or the Escrow Agreement (provided that any amendment that shall adversely and disproportionately affect exercising the rights or obligations of any Holder shall require the prior written consent of such Holder) and (iv) taking all other actions that are either necessary or appropriate set forth in its judgment for the accomplishment of the foregoing or contemplated by the terms of this Agreement or the Escrow Agreement. The Holders’ Representative hereby accepts such appointment. The Holders’ Representative shall use commercially reasonable efforts based on contact information available to the Holders’ Representative to keep the Holders reasonably informed Section 9.11 with respect to actions of the Holders’ Representative pursuant to the authority granted the Holders’ Representative under this Agreement which actions have a material impact on the amounts payable to the Electing Oxygen Holders. Each Holder shall promptly provide written notice to the Holders’ Representative of any change of address of such Holder.
(b) A decision, actaction, consent consent, instruction or instruction omission of the Holders’ Representative (or any one of them, if acting in its capacity as the Holders’ Representative shall be comprised of more than one PersonRepresentative) hereunder shall constitute a decision, actaction, consent consent, instruction or instruction omission of all Holders each Electing Oxygen Holder and shall be final, binding and conclusive upon each of such Holders, and the Escrow Agent and Buyer may rely upon any such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) as being the decision, act, consent or instruction of each and every such Electing Oxygen Holder. The Escrow Agent and Buyer shall be relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person).
(c) The Holders’ Representative shall have the right at all times be entitled to recover from, at its sole discretion, the Holders’ Representative Expense Fund Account, the Holders’ Representative Expense Fund Property or rely on any disbursements to be made to the Holders directions received from the funds Requisite Holders and 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 Indemnity Escrow Account, prior to any distribution to the Holders, (i) Holders’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and (ii) any amounts to which it is entitled pursuant to the indemnification provision in Section 9.10(e) (each item in clauses (i) and (ii) absence of this Section 9.10(c) referred to as a “Charge”, and collectively the “Charges”). In the event the Indemnity Escrow Account funds so distributed, the Holders’ Representative Expense Fund Account and the Holders’ Representative Expense Fund Property (collectively, the “Escrow Property”) is insufficient to satisfy the Charges, then the Holders (including the Holders’ Representative itself) will be obligated to pay the Charges in excess of the Escrow Property pro rata, based on their relative Indemnity Percentages.
(d) The Holders’ Representative will incur no liability with respect to any action taken or suffered by any party in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Holders’ 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 its own gross negligence, bad faith or willful misconduct. In all questions arising under this Agreement or the Escrow Agreement, the Holders’ Representative may rely on the advice of outside counsel, and the Holders’ Representative will not be liable to any Holder for anything done, omitted or suffered in good faith by the Holders’ Representative based on such advice.
(e) The Holders shall severally (each based on its Indemnity Percentage) but not jointly indemnify the Holders’ Representative and hold the Holders’ Representative harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct, on the part of the Holders’ Representative Representative) shall be entitled to conclusively rely on the opinions and arising out advice of or in connection with the acceptance or administration such Persons. No bond shall be required of the Holders’ Representative’s duties hereunder, and the Holders’ Representative shall not receive compensation for its services. The Holders’ Representative shall be entitled to reimbursement from the Electing Oxygen Holders for all reasonable expenses, disbursements and advances (including the reasonable fees and expenses disbursements of any legal counsel retained its counsel, experts and other agents and consultants) incurred by the Holders’ Representative in such capacity, and shall be entitled to indemnification by the Electing Oxygen Holders against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Holders’ Representative (except for those arising out of the Holders’ Representatives’ gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims; provided that the Holders’ Representative shall first recover such expenses, disbursements, losses, liabilities and advances from the Holder Expense Fund.
(d) Carbon and its Affiliates shall be entitled to rely upon any decision, action, consent, instruction or omission of the Holders’ Representative relating to the transactions contemplated in Section 6.17 as being the decision, action, consent, instruction or omission of each Electing Oxygen Holder. Notwithstanding anything to the contrary, each Electing Oxygen Holder, on behalf of itself and its Affiliates, representatives, agents, successors and assigns, voluntarily, irrevocably, unconditionally and completely waives and releases, acquits and forever discharges Carbon and its Subsidiaries, and each of their respective present and future Affiliates and their respective directors, officers, shareholders, partners, members, agents and representatives, and the predecessors, successors and assigns of each of the foregoing other than the Holders’ Representative (each such persons collectively, the “Released Parties”) from any and all claims, demands, rights, promises, causes of actions, suits, expenses, damages, Liabilities and obligations of any nature whatsoever (whether based on any Law, known or unknown, suspected or claimed, fixed or contingent, matured or unmatured, determined or determinable, at law or in equity) (each a “Claim”) in any way arising out of or based on any action or omission STRICTLY CONFIDENTIAL EXECUTION of the Holders’ Representative, the appointment of the Holders’ Representative, any obligations of the Holders’ Representative under this Agreement or any documents or instruments delivered in connection herewith, or any actions or omissions of any Released Party taken in reliance upon any decision, action, consent, instruction or omission of the Holders’ Representative, in each case pursuant to or in accordance with this Section 6.18.
(e) The Holders’ Representative hereby represents and warrants to Carbon, Oxygen and Merger Sub as follow: (i) The Holders’ Representative has all requisite power and authority to execute and deliver this Agreement, (ii) the execution and delivery by the Holders’ Representative of this Agreement and the performance by the Holders’ Representative of its obligations hereunder do not and will not conflict with, violate any provision of, any applicable Law or Contract applicable to the Holders’ Representative, and (iii) this Agreement has been duly and validly executed and delivered by the Holders’ Representative and constitutes a valid and binding agreement of the Holders’ Representative; enforceable against the Holders’ Representative in accordance with its terms, except as may be limited by the Enforceability Exceptions.
(f) At any time during the term of the Escrow Agreement, a majority-in-interest of Holders may, by written consent, appoint a new representative as the Holders’ Representative. Notice together with a copy of the written consent appointing such new representative and bearing the signatures of Holders of a majority-in-interest of those Holders must be delivered to Buyer and, if applicable, the Escrow Agent not less than ten days prior to such appointment. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer and, if applicable, the Escrow Agent. For the purposes of this Section 9.10, a “majority-in-interest of the Holders” shall mean Holders representing in the aggregate over 50% of the percentage interests in the Escrow Property.
(g) In the event that the Holders’ Representative becomes unable or unwilling to continue determines, in its capacity as Holders’ Representativesole and absolute discretion, or if that the amount of the Holder Expense Fund exceeds the expenses incurred by the Holders’ Representative resigns in such capacity, prior to the final release of any funds payable to the Oxygen Holders, the Holder Representative shall transfer such excess amount to Carbon solely for disbursement (or otherwise cause such excess amount to be disbursed) to the Oxygen Holders as a Holders’ Representativethough such amounts were Released Holdback Amounts being distributed pursuant to 6.17(f); provided, a majority-in-interest however, that notwithstanding anything to the contrary in this Agreement, in no event shall such excess amount become part of the Holders shall use its reasonable best efforts, by written consent, Holdback Amount or otherwise become payable to appoint a new representative as the Holders’ Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of the Holders of a majority-in-interest of the Holders must be delivered to Buyer and, if applicable, 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 Buyer and, if applicable, the Escrow AgentCarbon.
Appears in 1 contract
Sources: Merger Agreement (Cit Group Inc)
Holders Representative. (a) Effective upon Lewis has been appointed to act as exclusive agent and by virtue attorney-in-fa▇▇ ▇o act on behalf of the vote holders of Target Capital Stock with respect to any and all matters, claims, controversies, or disputes arising out of the Stockholders approving and adopting terms of this Agreement and (the Merger (including pursuant to "Holders' Representative"). In the Written Consent) and in respect event of the other Holders death, disability or resignation of such Person, a successor may be appointed by virtue of approval of the Merger pursuant Holders. The Holders' Representative shall have the power to take any Letter of Transmittal and all actions which the Holders' Representative believes are necessary or other receipt of consideration appropriate or in respect of the Merger, and without any further act of any best interests of the Holders, the Holders’ Representative shall be hereby appointed as the representative of the Holders and fully as the attorney-in-fact and agent for and on behalf of if each such Holder was acting on its, his or her own behalf with respect to all claims for purposes of indemnification under this Agreement and to take any action or no action in connection therewith as the Escrow Agreement Holders' Representative may deem appropriate as effectively as the Holders could act themselves, including the settlement or compromise of any dispute or controversy. In no event shall the Holders' Representative be required to expend his own funds to defend any claim for indemnification hereunder, and will take he may require, as a condition of undertaking such defense, contribution by the Holders of funds necessary to pay the cost of any such defense. The authority granted hereunder is deemed to be coupled with an interest. The death or incapacity of any Holder shall not terminate the authority and agency of the Holders' Representative. Acquiror shall have the right to rely on any actions taken or omitted to be taken by the Holders’ ' Representative under this Agreement and as being the Escrow Agreement and such other actions on behalf of such Holders as it may deem necessary act or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including (i) taking all actions and making all filings on behalf of such Holders with any Governmental Authority or other Person necessary to effect the consummation omission of the transactions contemplated by this Agreement or Holders, without the Escrow Agreement, (ii) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect toneed for any inquiry, and otherwise administering and handling any claims under this Agreement such actions or the Escrow Agreement on behalf of such Holders, including indemnifications claims, (iii) negotiating and executing any waivers or amendments of this Agreement or the Escrow Agreement (provided that any amendment that omissions shall adversely and disproportionately affect the rights or obligations of any Holder shall require the prior written consent of such Holder) and (iv) taking all other actions that are either necessary or appropriate in its judgment for the accomplishment be binding upon each of the foregoing or contemplated by the terms of this Agreement or the Escrow AgreementHolders. The Holders’ Representative hereby accepts such appointment. The Holders’ ' Representative shall use commercially reasonable efforts based on contact information available to the Holders’ Representative to keep the Holders reasonably informed with respect to actions of the Holders’ Representative pursuant to the authority granted the Holders’ Representative under this Agreement which actions have a material impact on the amounts payable to the Holders. Each Holder shall promptly provide written notice to the Holders’ Representative of any change of address of such Holder.
(b) A decisionincur no liability, actloss, consent damage or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) hereunder shall constitute a decision, act, consent or instruction of all Holders and shall be final, binding and conclusive upon each of such Holders, and the Escrow Agent and Buyer may rely upon any such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) as being the decision, act, consent or instruction of each and every such Holder. The Escrow Agent and Buyer shall be relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person).
(c) The Holders’ Representative shall have the right to recover from, at its sole discretion, the Holders’ Representative Expense Fund Account, the Holders’ Representative Expense Fund Property or any disbursements to be made to the Holders from the funds in the Indemnity Escrow Account, prior to any distribution to the Holders, (i) Holders’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and (ii) any amounts to which it is entitled pursuant to the indemnification provision in Section 9.10(e) (each item in clauses (i) and (ii) of this Section 9.10(c) referred to expense as a “Charge”, and collectively the “Charges”). In the event the Indemnity Escrow Account funds so distributed, the Holders’ Representative Expense Fund Account and the Holders’ Representative Expense Fund Property (collectively, the “Escrow Property”) is insufficient to satisfy the Charges, then the Holders (including the Holders’ Representative itself) will be obligated to pay the Charges in excess result of the Escrow Property pro rata, based on their relative Indemnity Percentages.
(d) The Holders’ Representative will incur no liability with respect to any action taken or suffered by any party in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Holders’ 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 its own gross negligence, bad faith or willful misconduct. In all questions arising under this Agreement or the Escrow Agreement, the Holders’ Representative may rely on the advice of outside counsel, and the Holders’ Representative will not be liable to any Holder for anything done, omitted or suffered in good faith by the Holders’ Representative based on such advice.
(e) The Holders shall severally (each based on its Indemnity Percentage) but not jointly indemnify the Holders’ Representative and hold the Holders’ Representative harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct, on the part of the Holders’ Representative and arising out of or in connection with the acceptance or administration of the Holders’ Representative’s duties hereunder, including the reasonable any legal fees and expenses of any legal counsel retained by the Holders’ Representativeexpenses.
(f) At any time during the term of the Escrow Agreement, a majority-in-interest of Holders may, by written consent, appoint a new representative as the Holders’ Representative. Notice together with a copy of the written consent appointing such new representative and bearing the signatures of Holders of a majority-in-interest of those Holders must be delivered to Buyer and, if applicable, the Escrow Agent not less than ten days prior to such appointment. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer and, if applicable, the Escrow Agent. For the purposes of this Section 9.10, a “majority-in-interest of the Holders” shall mean Holders representing in the aggregate over 50% of the percentage interests in the Escrow Property.
(g) In the event that the Holders’ Representative becomes unable or unwilling to continue in its capacity as Holders’ Representative, or if the Holders’ Representative resigns as a Holders’ Representative, a majority-in-interest of the Holders shall use its reasonable best efforts, by written consent, to appoint a new representative as the Holders’ Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of the Holders of a majority-in-interest of the Holders must be delivered to Buyer and, if applicable, 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 Buyer and, if applicable, the Escrow Agent.
Appears in 1 contract
Sources: Plan of Reorganization and Agreement of Merger (Maverick Tube Corporation)
Holders Representative. (a) Effective upon and by virtue of the vote of the Stockholders approving and adopting this Agreement and the Merger (including pursuant to the Written Consent) and in respect of the other Holders by virtue of approval of the Merger pursuant to any Letter of Transmittal or other receipt of consideration in respect of the Merger, and without any further act of any of the Holders, The Shareholders hereby appoint ▇▇▇▇▇ ▇▇▇▇▇▇▇ as the Holders’ Representative shall be hereby appointed as the representative of the Holders and as the attorney-in-fact and agent for and on behalf of each such Holder for purposes of this Agreement and the Escrow Agreement Agreement, and will take such actions Holders’ Representative hereby accepts the appointment as the Holders’ Representative. Parent shall be entitled to be taken by deal exclusively with the Holders’ Representative under on all matters relating to this Agreement and the Escrow Agreement Agreement, and such other actions 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 Shareholder by the Holders’ Representative, and on any other action taken or purported to be taken on behalf of any Shareholder by the Holders’ Representative, as fully binding upon such Holders Shareholders. If the Holders’ Representative shall die, become disabled or otherwise be unable or unwilling to fulfill her responsibilities as it may deem necessary or appropriate agent of the Shareholders, then the Shareholders constituting the recipients of a majority in interest of the Parent Common Shares issued in connection with the Purchase and Sale shall, within twenty (20) days after such death, disability or to consummate resignation, appoint a successor agent and, promptly thereafter, shall notify Parent of the transactions contemplated hereby or thereby, including (i) taking all actions and making all filings on behalf identity of such Holders with successor. If the successor is appointed as described herein, no notice to any Governmental Authority or other Person necessary to effect Shareholder shall be required. Any such successor shall become the consummation of the transactions contemplated by this Agreement or the Escrow Agreement, (ii) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement or the Escrow Agreement on behalf of such “Holders, including indemnifications claims, (iii) negotiating and executing any waivers or amendments ’ Representative” for purposes of this Agreement or the Escrow Agreement (provided that any amendment that shall adversely and disproportionately affect the rights or obligations of any Holder shall require the prior written consent of such Holder) and (iv) taking all other actions that are either necessary or appropriate in its judgment for the accomplishment of the foregoing or contemplated by the terms of this Agreement or the Escrow Agreement. The If for any reason there is no Holders’ Representative hereby accepts such appointment. The Holders’ Representative shall use commercially reasonable efforts based on contact information available at any time, all references herein to the Holders’ Representative to keep the Holders reasonably informed with respect to actions of the Holders’ Representative pursuant to the authority granted the Holders’ Representative under this Agreement which actions have a material impact on the amounts payable to the Holders. Each Holder shall promptly provide written notice to the Holders’ Representative of any change of address of such Holder.
(b) A decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) hereunder deemed to refer to the Shareholders who shall constitute a decision, act, act by the consent or instruction approval by Shareholders constituting a majority in interest of all Holders the Parent Common Shares issued in connection with the Purchase and Sale. If the successor is appointed as described herein, no notice to any other Indemnitor shall be final, binding and conclusive upon each of such Holders, and the Escrow Agent and Buyer may rely upon any such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) as being the decision, act, consent or instruction of each and every such Holderrequired. The Escrow Agent Shareholders shall jointly and Buyer shall be relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person).
(c) The Holders’ Representative shall have the right to recover from, at its sole discretion, the Holders’ Representative Expense Fund Account, the Holders’ Representative Expense Fund Property or any disbursements to be made to the Holders from the funds in the Indemnity Escrow Account, prior to any distribution to the Holders, (i) Holders’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and (ii) any amounts to which it is entitled pursuant to the indemnification provision in Section 9.10(e) (each item in clauses (i) and (ii) of this Section 9.10(c) referred to as a “Charge”, and collectively the “Charges”). In the event the Indemnity Escrow Account funds so distributed, the Holders’ Representative Expense Fund Account and the Holders’ Representative Expense Fund Property (collectively, the “Escrow Property”) is insufficient to satisfy the Charges, then the Holders (including the Holders’ Representative itself) will be obligated to pay the Charges in excess of the Escrow Property pro rata, based on their relative Indemnity Percentages.
(d) The Holders’ Representative will incur no liability with respect to any action taken or suffered by any party in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Holders’ 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 its own gross negligence, bad faith or willful misconduct. In all questions arising under this Agreement or the Escrow Agreement, the Holders’ Representative may rely on the advice of outside counsel, and the Holders’ Representative will not be liable to any Holder for anything done, omitted or suffered in good faith by the Holders’ Representative based on such advice.
(e) The Holders shall severally (each based on its Indemnity Percentage) but not jointly indemnify the Holders’ Representative and hold the Holders’ Representative harmless against any loss, liability or expense incurred without gross negligencerecklessness, bad faith or willful misconduct, intentional misconduct on the part of the Holders’ Representative and arising out of or in connection with the acceptance or administration of the Holders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel or other professional retained by the Holders’ Representative.
(f) At any time during . The Shareholders hereby agree to pay the term costs and expenses of the Holders’ Representative in connection with the acceptance and administration of the Holders’ Representative’s duties hereunder. Notwithstanding the foregoing sentence, as set forth in the Escrow Agreement, a majority-in-interest of Holders may, by written consent, appoint a new representative as the Holders’ Representative. Notice together with a copy of the written consent appointing such new representative and bearing the signatures of Holders of a majority-in-interest of those Holders must be delivered to Buyer and, if applicable, the Escrow Agent not less than ten days prior to such appointment. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer and, if applicable, the Escrow Agent. For the purposes of this Section 9.10, a “majority-in-interest of the Holders” shall mean Holders representing in the aggregate over 50% of the percentage interests in the Escrow Property.
(g) In the event that the Holders’ Representative becomes unable or unwilling shall be reimbursed for such reasonable costs and expenses by making claims against the Escrow Shares from time to continue in its capacity time as Holders’ Representativesuch costs and expenses are incurred, or if the Holders’ Representative resigns as a Holders’ Representative, a majority-in-interest provided that not more than fifty percent (50%) of the Holders Escrow Shares shall use its reasonable best efforts, by written consent, be subject to appoint a new representative as the Holders’ Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of the Holders of a majority-in-interest of the Holders must be delivered to Buyer and, if applicable, 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 Buyer and, if applicable, the Escrow Agentclaims.
Appears in 1 contract
Sources: Share Purchase Agreement (Primus Knowledge Solutions Inc)
Holders Representative. (a) Effective upon and by virtue of the vote of the Stockholders approving and adopting By entering into this Agreement and receiving the Merger (including pursuant to the Written Consent) and in respect of the other Holders by virtue of approval of the Merger pursuant to any Letter of Transmittal or other receipt of consideration in respect of the Mergerbenefits hereof, and without any further act of any of the Holders, the Holders’ Representative each Holder shall be hereby appointed deemed to have approved the designation of and designates the Seller as the representative of the Holders Holder and as the attorney-in-fact and agent for and on behalf of each such Holder with respect to claims for purposes of this Agreement indemnification under Article X and Article XI and the Escrow Agreement taking by the Seller of any and will take such all actions and the making of any decisions required or permitted to be taken by the Holders’ Representative Seller under this Agreement Article X and Article XI and the Escrow Agreement Agreement, including the authority and such other actions power to act on behalf of each Holder or otherwise with respect to the settlement or other handling of all claims under Article X and Article XI and all rights or obligations arising under Article X and Article XI. The Seller may engage attorneys, accountants and other professionals and experts. The Seller may in good faith rely conclusively upon information, reports, statements and opinions prepared or presented by such professionals, and any action taken by the Seller based on such reliance shall be deemed conclusively to have been taken in good faith. The Seller shall receive no compensation for his, her or its services.
(b) The Holders as it may deem necessary or appropriate agree that $350,000 of the Estimated Purchase Price paid by Buyer to Seller at the Second Closing in connection accordance with or to consummate Section 2.3(d) hereof (the transactions contemplated hereby or thereby, including “Seller Expense Amount”) shall be used (i) taking all actions and making all filings on behalf of such Holders with any Governmental Authority or other Person necessary to effect for anticipated administrative expenses, including payment for the consummation Seller’ portion of the transactions contemplated by this Agreement fees payable to the Resolution Accountants pursuant to Section 2.4 or the Escrow Agent pursuant to Section 2.3(d) and the Escrow Agreement, (ii) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement or the Escrow Agreement on behalf of such Holders, including indemnifications claims, (iii) negotiating and executing any waivers or amendments of this Agreement or the Escrow Agreement (provided that any amendment that shall adversely and disproportionately affect the rights or obligations of any Holder shall require the prior written consent of such Holder) and (iv) taking all other actions that are either necessary or appropriate in its judgment for the accomplishment of the foregoing or contemplated by the terms of this Agreement or the Escrow Agreement. The Holders’ Representative hereby accepts such appointment. The Holders’ Representative shall use commercially reasonable efforts based on contact information available to the Holders’ Representative to keep the Holders reasonably informed with respect to actions of the Holders’ Representative pursuant to the authority granted the Holders’ Representative under this Agreement which actions have a material impact on the amounts payable to the Holders. Each Holder shall promptly provide written notice to the Holders’ Representative of any change of address of such Holder.
(b) A decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) hereunder shall constitute a decision, act, consent or instruction of all Holders and shall be final, binding and conclusive upon each of such Holders, and the Escrow Agent and Buyer may rely upon any such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) as being the decision, act, consent or instruction of each and every such Holder. The Escrow Agent and Buyer shall be relieved from any liability to any Person for any acts done expenses reasonably incurred by them in accordance with such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person).
(c) The Holders’ Representative shall have the right to recover from, at its sole discretion, the Holders’ Representative Expense Fund Account, the Holders’ Representative Expense Fund Property or any disbursements to be made to the Holders from the funds in the Indemnity Escrow Account, prior to any distribution to the Holders, (i) Holders’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and (ii) any amounts to which it is entitled pursuant to the indemnification provision in Section 9.10(e) (each item in clauses (i) and (ii) of this Section 9.10(c) referred to as a “Charge”, and collectively the “Charges”). In the event the Indemnity Escrow Account funds so distributed, the Holders’ Representative Expense Fund Account and the Holders’ Representative Expense Fund Property (collectively, the “Escrow Property”) is insufficient to satisfy the Charges, then the Holders (including the Holders’ Representative itself) will be obligated to pay the Charges in excess of the Escrow Property pro rata, based on their relative Indemnity Percentages.
(d) The Holders’ Representative will incur no liability with respect to any action taken or suffered by any party in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Holders’ 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 its own gross negligence, bad faith or willful misconduct. In all questions arising under this Agreement or the Escrow Agreement, the Holders’ Representative may rely on the advice of outside counsel, and the Holders’ Representative will not be liable to any Holder for anything done, omitted or suffered in good faith by the Holders’ Representative based on such advice.
(e) The Holders shall severally (each based on its Indemnity Percentage) but not jointly indemnify the Holders’ Representative and hold the Holders’ Representative harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct, on the part of the Holders’ Representative and arising out of or Seller in connection with the acceptance defense, investigation, or administration settlement of any Third-Party Claim. Seller shall have full discretion over the Seller Expense Amount. The Seller Expense Amount (or the remainder thereof at any given time) shall be invested as reasonably determined by Seller. At such time that Seller believes that no additional expenses referred to above will be incurred, Seller shall distribute any remaining funds from the Seller Expense Amount to the other Shareholders in accordance with the provisions of the Holders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Holders’ RepresentativeFirst Closing Schedule.
(f) At any time during the term of the Escrow Agreement, a majority-in-interest of Holders may, by written consent, appoint a new representative as the Holders’ Representative. Notice together with a copy of the written consent appointing such new representative and bearing the signatures of Holders of a majority-in-interest of those Holders must be delivered to Buyer and, if applicable, the Escrow Agent not less than ten days prior to such appointment. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer and, if applicable, the Escrow Agent. For the purposes of this Section 9.10, a “majority-in-interest of the Holders” shall mean Holders representing in the aggregate over 50% of the percentage interests in the Escrow Property.
(g) In the event that the Holders’ Representative becomes unable or unwilling to continue in its capacity as Holders’ Representative, or if the Holders’ Representative resigns as a Holders’ Representative, a majority-in-interest of the Holders shall use its reasonable best efforts, by written consent, to appoint a new representative as the Holders’ Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of the Holders of a majority-in-interest of the Holders must be delivered to Buyer and, if applicable, 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 Buyer and, if applicable, the Escrow Agent.
Appears in 1 contract
Sources: Share Purchase Agreement (Idt Corp)
Holders Representative. (a) Effective upon The adoption and by virtue approval of the vote of the Stockholders approving and adopting this Agreement and by the Merger (including pursuant to the Written Consent) and in respect of the other Holders by virtue of Company's stockholders shall constitute approval of the Merger pursuant to any Letter Escrow Agreement and of Transmittal or other receipt of consideration in respect all of the Mergerarrangements relating thereto, including without limitation the placement of the Escrow Shares in escrow, and without any further act of any the appointment of the Step▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Holders, the Holders’ ' Representative shall be hereby appointed as the representative to act for and on behalf of all stockholders of the Holders and Company, as the attorney-in-fact and agent for of all such persons, to give and on behalf receive notices - 52- 58 and communications, to authorize delivery of each such Holder for purposes any shares of this Agreement Parent Common Stock and cash, if any, from the Escrow Agreement and will take Fund in satisfaction of claims by Parent Indemnitees, to object to such actions deliveries, to be taken by the Holders’ Representative under this Agreement and the Escrow Agreement and such other actions on behalf of such Holders as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including (i) taking all actions and making all filings on behalf of such Holders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement or the Escrow Agreement, (ii) agreeing agree to, negotiating, entering negotiate and enter into settlements and compromises of, complying and comply with orders of courts and decrees with respect toto such claims, and otherwise administering and handling any claims under this Agreement or the Escrow Agreement on behalf of such Holders, including indemnifications claims, (iii) negotiating and executing any waivers or amendments of this Agreement or the Escrow Agreement (provided that any amendment that shall adversely and disproportionately affect the rights or obligations of any Holder shall require the prior written consent of such Holder) and (iv) taking to take all other actions that are either necessary or appropriate in its the judgment of such representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement or the Escrow Agreementforegoing. The Holders’ Representative hereby accepts such appointment. The Holders’ Representative shall use commercially reasonable efforts based on contact information available to the Holders’ Representative to keep the Holders reasonably informed with respect to actions of the Holders’ Representative pursuant to the authority granted the Holders’ Representative under this Agreement which actions have a material impact on the amounts payable to the Holders. Each Holder shall promptly provide written notice to the Holders’ Representative of any change of address of such Holder.
(b) A decision, act, consent or instruction of the Holders’ ' Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) hereunder shall constitute a decision, act, consent or instruction decision of all Holders the stockholders of Company and shall be final, binding and conclusive upon each of the stockholders of Company. Without limiting the generality of the foregoing, the Holders' Representative shall have full power and authority, on behalf of all the Company Stockholders and their successors, to interpret all the terms and provisions of this Agreement, to dispute or fail to dispute any Claim of Indemnifiable Damages against the Escrow Shares made by a Parent Indemnitee, to assert Claims of Indemnifiable Damages against any the Escrow Fund, to negotiate and compromise any dispute which may arise under this Agreement, to sign any releases or other documents with respect to any such dispute, and to authorize delivery of Escrow Shares pursuant to the Escrow Agreement or any other payments to be made with respect thereto.
(b) The Holders' Representative, or any successor hereafter appointed, may resign and shall be discharged of his duties hereunder upon the appointment of a successor Holders' Representative as hereinafter provided. In case of such resignation, or in the event of the death or inability to act of the Representative, a successor shall be named from among the Stockholders by a majority of the members of the Board of Directors of who served on such board prior to the Merger. Each such successor Holders' Representative shall have all the power, authority, rights and privileges hereby conferred upon the original Holders' Representative, and the Escrow Agent and Buyer may rely upon any such decision, act, consent or instruction of the term "Holders’ Representative (or any one of them, if the Holders’ Representative ' Representative" as used herein shall be comprised of more than one Person) as being the decision, act, consent or instruction of each and every deemed to include such Holder. The Escrow Agent and Buyer shall be relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the successor Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person)' Representative.
(c) The Holders’ Representative shall have In performing any of its duties under this Agreement, or upon the right claimed failure to recover from, at its sole discretionperform his duties hereunder, the Holders’ ' Representative Expense Fund Account, the Holders’ Representative Expense Fund Property or any disbursements to shall not be made liable to the Holders from the funds in the Indemnity Escrow AccountCompany stockholders or anyone else for any Indemnifiable Damages, prior to any distribution to the Holders, (i) Holders’ Representative’s reasonable out-of-pocket losses or expenses incurred in serving in that capacity and (ii) any amounts to which it is entitled pursuant to the indemnification provision in Section 9.10(e) (each item in clauses (i) and (ii) of this Section 9.10(c) referred to they may incur as a “Charge”result of any act, and collectively the “Charges”). In the event the Indemnity Escrow Account funds so distributed, the Holders’ Representative Expense Fund Account and the Holders’ Representative Expense Fund Property (collectively, the “Escrow Property”) is insufficient or failure to satisfy the Charges, then the Holders (including the Holders’ Representative itself) will be obligated to pay the Charges in excess of the Escrow Property pro rata, based on their relative Indemnity Percentages.
(d) The Holders’ Representative will incur no liability with respect to any action taken or suffered by any party in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Holders’ 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 its own gross negligence, bad faith or willful misconduct. In all questions arising act under this Agreement or the Escrow Agreement; provided, however, that the Holders’ Representative may rely on the advice of outside counsel, and the Holders’ Representative will not shall be liable to any Holder for anything done, Indemnifiable Damages arising out of actions or omissions that both (i) were taken or omitted or suffered not in good faith and (ii) constituted willful default or gross negligence under this Agreement or the Escrow Agreement. Accordingly, the Representative shall not incur any such Liability with respect to (i) any action taken or omitted to be taken in good faith upon advice of his counsel given with respect to any questions relating to the duties and responsibilities of the Holders' Representative hereunder; or (ii) any action taken or omitted to be taken in reliance upon any document, including any written notice or instructions provided for in this Agreement or the Escrow Agreement, not only as to its due execution and to the validity and effectiveness of its provisions, but also as to the truth and accuracy of any information contained therein, which the Holders' Representative shall in good faith believe to be genuine, to have been signed or presented by the purported proper person or persons and to conform with the provisions of this Agreement and the Escrow Agreement. The limitation of liability provisions of this Section shall survive the termination of this Agreement and the resignation of the Holders’ Representative based on such advice.
(e) ' Representative. The Holders stockholders of Company shall severally (each based on its Indemnity Percentage) but not jointly indemnify the Holders’ ' Representative and hold the Holders’ Representative him harmless against any loss, liability or expense (including any expenses of legal counsel retained by the Holders' Representative) incurred without willful default, gross negligence, negligence or bad faith or willful misconduct, on the part of the Holders’ Representative and arising out of or in connection with the acceptance or administration of the Holders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Holders’ Representative.
(f) At any time during the term of the Escrow Agreement, a majority-in-interest of Holders may, by written consent, appoint a new representative as the Holders’ Representative. Notice together with a copy of the written consent appointing such new representative and bearing the signatures of Holders of a majority-in-interest of those Holders must be delivered to Buyer and, if applicable, the Escrow Agent not less than ten days prior to such appointment. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer and, if applicable, the Escrow Agent. For the purposes of this Section 9.10, a “majority-in-interest of the Holders” shall mean Holders representing in the aggregate over 50% of the percentage interests in the Escrow Property.
(g) In the event that the Holders’ Representative becomes unable or unwilling to continue in its capacity as Holders’ Representative, or if the Holders’ Representative resigns as a Holders’ Representative, a majority-in-interest of the Holders shall use its reasonable best efforts, by written consent, to appoint a new representative as the Holders’ Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of the Holders of a majority-in-interest of the Holders must be delivered to Buyer and, if applicable, 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 Buyer and, if applicable, the Escrow Agent.'
Appears in 1 contract
Holders Representative. (a) Effective upon and by virtue ▇▇▇▇▇ ▇▇ shall act as the Shareholders' representative (the "Holders' Representative") for the purpose of settling on behalf of the vote Shareholders any indemnification claims made by Buyer Indemnified Party hereunder, and taking any other action that is specifically delegated to the Holders' Representative hereunder. Buyer shall give notice under Section 10.4 of any claim for indemnification against the Stockholders approving and adopting this Agreement Shareholders to Shareholders and the Merger (including pursuant to the Written Consent) and in respect of the other Holders by virtue of approval of the Merger pursuant to any Letter of Transmittal or other receipt of consideration in respect of the MergerHolders' Representative, and without any further act of any of only the Holders, the Holders’ ' Representative shall be hereby appointed as the representative of the Holders and as the attorney-in-fact and agent for and empowered following such notice to respond to or take any other action on behalf of each such Holder for purposes of this Agreement the Shareholders with respect to the claim. Shareholders shall be bound by any and the Escrow Agreement and will take such all actions to be taken by the Holders’ ' Representative under on their behalf in accordance with this Agreement and the Escrow Agreement and such other actions on behalf of such Holders as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including (i) taking all actions and making all filings on behalf of such Holders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement or the Escrow Agreement, (ii) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement or the Escrow Agreement on behalf of such Holders, including indemnifications claims, (iii) negotiating and executing any waivers or amendments of this Agreement or the Escrow Agreement (provided that any amendment that shall adversely and disproportionately affect the rights or obligations of any Holder shall require the prior written consent of such Holder) and (iv) taking all other actions that are either necessary or appropriate in its judgment for the accomplishment of the foregoing or contemplated by the terms of this Agreement or the Escrow Agreement. The Holders’ Representative hereby accepts such appointment. The Holders’ Representative shall use commercially reasonable efforts based on contact information available to the Holders’ Representative to keep the Holders reasonably informed with respect to actions of the Holders’ Representative pursuant to the authority granted the Holders’ Representative under this Agreement which actions have a material impact on the amounts payable to the Holders. Each Holder shall promptly provide written notice to the Holders’ Representative of any change of address of such Holder.
(b) A decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) hereunder shall constitute a decision, act, consent or instruction of all Holders and shall be final, binding and conclusive upon each of such Holders, and the Escrow Agent and Buyer may rely upon any such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) as being the decision, act, consent or instruction of each and every such Holder. The Escrow Agent and Buyer shall be relieved from entitled to rely exclusively upon any liability to communications or writings given or executed by the Holders' Representative and shall not be liable in any Person manner whatsoever for any acts done action taken or not taken in reliance upon the actions taken or not taken or communications or writings given or executed by them in accordance with such decision, act, consent or instruction of the Holders’ Representative (' Representative. Buyer shall be entitled to disregard any notices or any one of them, if communications given or made by the Shareholders unless given or made through the Holders’ Representative shall be comprised of more than one Person)' Representative.
(c) The Holders’ Representative shall have the right to recover from, at its sole discretion, the Holders’ Representative Expense Fund Account, the Holders’ Representative Expense Fund Property or any disbursements to be made to the Holders from the funds in the Indemnity Escrow Account, prior to any distribution to the Holders, (i) Holders’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and (ii) any amounts to which it is entitled pursuant to the indemnification provision in Section 9.10(e) (each item in clauses (i) and (ii) of this Section 9.10(c) referred to as a “Charge”, and collectively the “Charges”). In the event of the Indemnity Escrow Account funds so distributeddeath of the Holders' Representative or his inability to perform his functions hereunder, the Shareholders who immediately prior to the Closing owned a majority of Shares shall choose another Holders’ Representative Expense Fund Account and the Holders’ Representative Expense Fund Property (collectively, the “Escrow Property”) is insufficient to satisfy the Charges, then the Holders (including the Holders’ Representative itself) will be obligated to pay the Charges in excess of the Escrow Property pro rata, based on their relative Indemnity Percentages' Representative.
(d) The Holders’ ' Representative will incur no liability with respect to any action taken or suffered by any party in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Holders’ 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 its own gross negligence, bad faith or willful misconduct. In all questions arising under this Agreement or the Escrow Agreement, the Holders’ Representative may rely on the advice of outside counsel, and the Holders’ Representative will not be liable to any Holder Shareholder or any other party for anything doneany action taken or omitted to be taken by him as Holders' Representative except, omitted in the case of willful misconduct or suffered in good faith by the Holders’ Representative based on such advice.
(e) The Holders shall severally (each based on its Indemnity Percentage) but not gross negligence. Shareholders jointly indemnify the Holders’ ' Representative and hold the Holders’ Representative him harmless from and against any loss, liability or expense of any nature incurred without gross negligence, bad faith or willful misconduct, on the part of by the Holders’ ' Representative and arising out of or in connection with the acceptance or administration of the his duties as Holders’ ' Representative’s duties hereunder, including the reasonable legal fees and other costs and expenses of defending or preparing to defend against any legal counsel retained claim or liability in the premises, unless such loss, liability or expense shall be caused by the Holders’ ' Representative's willful misconduct or gross negligence.
(f) At any time during the term of the Escrow Agreement, a majority-in-interest of Holders may, by written consent, appoint a new representative as the Holders’ Representative. Notice together with a copy of the written consent appointing such new representative and bearing the signatures of Holders of a majority-in-interest of those Holders must be delivered to Buyer and, if applicable, the Escrow Agent not less than ten days prior to such appointment. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer and, if applicable, the Escrow Agent. For the purposes of this Section 9.10, a “majority-in-interest of the Holders” shall mean Holders representing in the aggregate over 50% of the percentage interests in the Escrow Property.
(g) In the event that the Holders’ Representative becomes unable or unwilling to continue in its capacity as Holders’ Representative, or if the Holders’ Representative resigns as a Holders’ Representative, a majority-in-interest of the Holders shall use its reasonable best efforts, by written consent, to appoint a new representative as the Holders’ Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of the Holders of a majority-in-interest of the Holders must be delivered to Buyer and, if applicable, 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 Buyer and, if applicable, the Escrow Agent.
Appears in 1 contract
Holders Representative. (a) Effective upon and by virtue of the vote of the Stockholders approving and adopting this Agreement and the Merger (including pursuant to the Written Consent) and in respect of the other Holders by virtue of approval of the Merger pursuant to any Letter of Transmittal or other receipt of consideration in respect of the Merger, and without any further WPI shall act of any of as the Holders, ' Representative (the "Holders’ Representative shall be hereby appointed as ' Representative") for the representative purpose of the Holders and as the attorney-in-fact and agent for and on behalf of each such Holder for purposes of this Agreement and the Escrow Agreement and will take such actions to be taken by the Holders’ Representative under this Agreement and the Escrow Agreement and such other actions on behalf of such Holders as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including (i) taking all actions and making all filings on behalf of such Holders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement or administering the Escrow Agreement, (ii) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement or the Escrow Agreement settling on behalf of such Holdersthe Participating Common Holders any indemnification claims made by any Buyer Indemnified Party under Section 11.1, including indemnifications claims, (iii) negotiating and executing any waivers or amendments of this Agreement or representing the Escrow Agreement (provided that any amendment that shall adversely and disproportionately affect Participating Common Holders in connection with the rights or obligations of any Holder shall require the prior written consent of such Holder) and (iv) taking all other actions that are either necessary or appropriate in its judgment for the accomplishment determination of the foregoing or contemplated by the terms of this Agreement or the Escrow Agreement. The Holders’ Representative hereby accepts such appointment. The Holders’ Representative shall use commercially reasonable efforts based on contact information available Closing Net Worth and taking any other action that is specifically delegated to the Holders’ ' Representative hereunder. A Buyer Indemnified Party shall give notice under this Section 11.3 of any claim for indemnification under Section 11.1 to keep the Participating Common Holder s and the Holders' Representative, but only the Holders' Representative shall be empowered, following such notice, to respond to or take any other action on behalf of the Participating Common Holders reasonably informed with respect to any such claim. The Participating Common Holders shall be bound by any and all actions of taken on their behalf by the Holders’ ' Representative pursuant to the authority granted the Holders’ Representative under in accordance with this Agreement which actions have a material impact on the amounts payable to the Holders. Each Holder shall promptly provide written notice to the Holders’ Representative of any change of address of such HolderAgreement.
(b) A decision, act, consent The Buyer Indemnified Parties shall be entitled to rely exclusively upon any communications or instruction of writings given or executed by the Holders’ ' Representative (and shall not be liable in any manner whatsoever for any action taken or any one of them, if not taken in reliance upon the actions taken or not taken or communications or writings given or executed by the Holders’ Representative ' Representative. Except as specifically contemplated by the Escrow Agreement, the Indemnified Buyer Parties shall be comprised of more than one Person) hereunder shall constitute entitled to disregard any notices or communications given or made by any Participating Common Holders with respect to a decision, act, consent claim under Section 11.1 unless given or instruction of all Holders and shall be final, binding and conclusive upon each of such Holders, and the Escrow Agent and Buyer may rely upon any such decision, act, consent or instruction of made through the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) as being the decision, act, consent or instruction of each and every such Holder. The Escrow Agent and Buyer shall be relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person)' Representative.
(c) The If the Holders’ ' Representative shall have the right to recover from, at becomes incapable of performing its sole discretionresponsibilities, the Holders’ Representative Expense Fund Account, the Holders’ Representative Expense Fund Property or any disbursements to be made Participating Common Holders that immediately prior to the Holders from the funds in the Indemnity Escrow Account, prior to any distribution to the Holders, (i) Holders’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and (ii) any amounts to which it is entitled pursuant to the indemnification provision in Section 9.10(e) (each item in clauses (i) and (ii) of this Section 9.10(c) referred to as Effective Date owned a “Charge”, and collectively the “Charges”). In the event the Indemnity Escrow Account funds so distributed, the Holders’ Representative Expense Fund Account and the Holders’ Representative Expense Fund Property (collectively, the “Escrow Property”) is insufficient to satisfy the Charges, then the Holders (including the Holders’ Representative itself) will be obligated to pay the Charges in excess majority of the Escrow Property pro rata, based on their relative Indemnity Percentagestotal of the outstanding Common Shares and Option Shares issuable under Exercisable Options shall choose another Holders' Representative.
(d) The Holders’ ' Representative will incur no liability with respect to any action taken or suffered by any party in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Holders’ 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 its own gross negligence, bad faith or willful misconduct. In all questions arising under this Agreement or the Escrow Agreement, the Holders’ Representative may rely on the advice of outside counsel, and the Holders’ Representative will not be liable to any Participating Common Holder or any other Party for anything done, any action taken or omitted to be taken by him as Holders' Representative except in the case of willful misconduct or suffered in good faith by the Holders’ Representative based on such advice.
(e) gross negligence. The Participating Common Holders shall severally (each based severally, on its Indemnity Percentage) but not jointly a pro-rata basis, indemnify the Holders’ ' Representative and hold the Holders’ Representative it harmless from and against any loss, liability or expense of any nature incurred without gross negligence, bad faith or willful misconduct, on the part of by the Holders’ ' Representative and arising out of or in connection with the acceptance or administration of the its duties as Holders’ ' Representative’s duties hereunder, including the reasonable legal fees and other costs and expenses of defending or preparing to defend against any legal counsel retained claim or liability in the premises, unless such loss, liability or expense shall be caused by the Holders’ ' Representative's willful misconduct or gross negligence.
(f) At any time during the term of the Escrow Agreement, a majority-in-interest of Holders may, by written consent, appoint a new representative as the Holders’ Representative. Notice together with a copy of the written consent appointing such new representative and bearing the signatures of Holders of a majority-in-interest of those Holders must be delivered to Buyer and, if applicable, the Escrow Agent not less than ten days prior to such appointment. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer and, if applicable, the Escrow Agent. For the purposes of this Section 9.10, a “majority-in-interest of the Holders” shall mean Holders representing in the aggregate over 50% of the percentage interests in the Escrow Property.
(g) In the event that the Holders’ Representative becomes unable or unwilling to continue in its capacity as Holders’ Representative, or if the Holders’ Representative resigns as a Holders’ Representative, a majority-in-interest of the Holders shall use its reasonable best efforts, by written consent, to appoint a new representative as the Holders’ Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of the Holders of a majority-in-interest of the Holders must be delivered to Buyer and, if applicable, 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 Buyer and, if applicable, the Escrow Agent.
Appears in 1 contract
Holders Representative. (a) Effective upon and by virtue For purposes of this Agreement, the Holders hereby consent to the appointment of the vote of the Stockholders approving and adopting this Agreement and the Merger (including pursuant to the Written Consent) and in respect of the other Holders by virtue of approval of the Merger pursuant to any Letter of Transmittal or other receipt of consideration in respect of the MergerRepresentative, and without any further act of any as representative of the Holders, the Holders’ Representative shall be hereby appointed as the representative of the Holders and as the attorney-in-fact and agent for and on behalf of each such Holder for purposes Holder, and, subject to the express limitations set forth below, the taking by the Representative of this Agreement any and all actions and the Escrow Agreement and will take such actions making of any decisions required or permitted to be taken by the Holders’ Representative him under this Agreement and Agreement, including, without limitation, the Escrow Agreement and such other actions on behalf exercise of such Holders as it may deem necessary or appropriate in connection with or the power to consummate the transactions contemplated hereby or thereby, including (i) taking all actions and making all filings on behalf of such Holders with any Governmental Authority or other Person necessary authorize delivery to effect the consummation ISI of the transactions contemplated by this Agreement Escrow Shares, or the Escrow Agreementany portion thereof, in satisfaction of Claims, (ii) agreeing agree to, negotiatingnegotiate, entering enter into settlements and compromises of, complying and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, and otherwise administering and handling any claims under this Agreement or the Escrow Agreement on behalf of to such Holders, including indemnifications claimsClaims, (iii) negotiating and executing resolve any waivers or amendments of this Agreement or the Escrow Agreement (provided that any amendment that shall adversely and disproportionately affect the rights or obligations of any Holder shall require the prior written consent of such Holder) Claims and (iv) taking take all other actions that are either necessary or appropriate in its the judgment of the Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement. The Representative will have unlimited authority and power to act on behalf of each Holder with respect to this Agreement and the disposition, settlement or contemplated other handling of all Claims, rights or obligations arising under this Agreement so long as all Holders are treated in the same manner. The Holders will be bound by all actions taken by the Representative in connection with this Agreement, and ISI will be entitled to rely on any action or decision of the Representative. In performing his functions hereunder, the Representative will not be liable to the Holders in the absence of gross negligence or willful misconduct. The Representative may resign from such position, effective upon a new representative being appointed in writing by Holders who beneficially own a majority of the Escrow Shares. The Representative will not be entitled to receive any compensation from ISI or the Holders in connection with this Agreement. Any out-of-pocket costs and expenses reasonably incurred by the Representative, including reasonable expenses of counsel and other experts employed on behalf of the Holders in connection with any actions taken pursuant to the terms of this Agreement or to enforce the Escrow Agreement. The Holders’ Representative hereby accepts such appointment. The Holders’ Representative shall use commercially reasonable efforts based on contact information available to the Holders’ Representative to keep rights of the Holders reasonably informed with respect to actions of the Holders’ Representative pursuant to the authority granted the Holders’ Representative under this Agreement which actions have a material impact on will be paid by the amounts payable Holders to the Holders. Each Holder shall promptly provide written notice Representative in proportion to the Holders’ Representative of any change of address of such Holder.
(b) A decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) hereunder shall constitute a decision, act, consent or instruction of all Holders and shall be final, binding and conclusive upon each of such Holders, and the Escrow Agent and Buyer may rely upon any such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) as being the decision, act, consent or instruction of each and every such Holder. The Escrow Agent and Buyer shall be relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person).
(c) The Holders’ Representative shall have the right to recover from, at its sole discretion, the Holders’ Representative Expense Fund Account, the Holders’ Representative Expense Fund Property or any disbursements to be made to the Holders from the funds in the Indemnity Escrow Account, prior to any distribution to the Holders, (i) Holders’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and (ii) any amounts to which it is entitled pursuant to the indemnification provision in Section 9.10(e) (each item in clauses (i) and (ii) of this Section 9.10(c) referred to as a “Charge”, and collectively the “Charges”). In the event the Indemnity Escrow Account funds so distributed, the Holders’ Representative Expense Fund Account and the Holders’ Representative Expense Fund Property (collectively, the “Escrow Property”) is insufficient to satisfy the Charges, then the Holders (including the Holders’ Representative itself) will be obligated to pay the Charges in excess of the Escrow Property pro rata, based on their relative Indemnity Percentages.
(d) The Holders’ Representative will incur no liability with respect to any action taken or suffered by any party in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Holders’ 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 its own gross negligence, bad faith or willful misconduct. In all questions arising under this Agreement or the Escrow Agreement, the Holders’ Representative may rely on the advice of outside counsel, and the Holders’ Representative will not be liable to any Holder for anything done, omitted or suffered in good faith by the Holders’ Representative based on such advice.
(e) The Holders shall severally (each based on its Indemnity Percentage) but not jointly indemnify the Holders’ Representative and hold the Holders’ Representative harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct, on the part of the Holders’ Representative and arising out of or in connection with the acceptance or administration of the Holders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Holders’ Representative.
(f) At any time during the term of the Escrow Agreement, a majority-in-interest of Holders may, by written consent, appoint a new representative as the Holders’ Representative. Notice together with a copy of the written consent appointing such new representative and bearing the signatures of Holders of a majority-in-interest of those Holders must be delivered to Buyer and, if applicable, the Escrow Agent not less than ten days prior to such appointment. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer and, if applicable, the Escrow Agent. For the purposes of this Section 9.10, a “majority-in-interest of the Holders” shall mean Holders representing in the aggregate over 50% of the percentage interests in the Escrow PropertyShares set forth on Exhibit A through the release to the Representative of Escrow Shares equal in value to the amount of such costs and expenses incurred.
(g) In the event that the Holders’ Representative becomes unable or unwilling to continue in its capacity as Holders’ Representative, or if the Holders’ Representative resigns as a Holders’ Representative, a majority-in-interest of the Holders shall use its reasonable best efforts, by written consent, to appoint a new representative as the Holders’ Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of the Holders of a majority-in-interest of the Holders must be delivered to Buyer and, if applicable, 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 Buyer and, if applicable, the Escrow Agent.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Integrated Systems Inc)
Holders Representative. (a) Effective upon P▇▇▇ ▇▇▇▇ (such person and by virtue of any successor or successors being the vote of the Stockholders approving and adopting this Agreement and the Merger (including pursuant to the Written Consent) and in respect of the other “Holders by virtue of approval of the Merger pursuant to any Letter of Transmittal or other receipt of consideration in respect of the MergerRepresentative”), and without any further shall act of any of the Holders, the Holders’ Representative shall be hereby appointed as the representative of the Holders Holders, and as the attorney-in-fact and agent for and shall be authorized to act on behalf of each such Holder the Holders and to take any and all actions required or permitted to be taken by the Holders Representative under this Agreement, with respect to any claims (including the settlement thereof) made by a NETGEAR Indemnified Party for purposes of indemnification pursuant to this Agreement and the Escrow Agreement and will take such Article XI, with respect to any other actions to be taken by the Holders Representative pursuant to this Agreement and with respect to any actions to be taken by the Holders Representative pursuant to the terms of the Escrow Agreement (including, without limitation, the exercise of the power to (i) authorize the delivery of Escrow Consideration to a NETGEAR Indemnified Party in satisfaction of claims by a NETGEAR Indemnified Party, (ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims and (iii) take all actions necessary in the judgment of the Holders Representative for the accomplishment of the foregoing.
(b) In all matters relating to this Article XI, the Holders Representative shall be the only party entitled to assert the rights of the Holders’ , and the Holders Representative shall perform all of the obligations of the Holders. The Holders shall be bound by all actions taken by the Holders Representative in his capacity as such. NETGEAR is authorized to rely conclusively on any such action of the Holders Representative as being the duly authorized action of the Holders and no party shall have any cause of action against NETGEAR for any action taken by NETGEAR in reliance upon the instructions, decisions or actions of the Holders Representative. The NETGEAR Indemnified Parties shall be entitled to rely on all statements, representations, decisions and actions of the Holders Representative.
(c) The Holders Representative shall promptly provide written notice to the Holders of any action taken on their behalf by the Holders Representative pursuant to the authority delegated to the Holders Representative under this Agreement and Section 11.5. The Holders Representative shall at all times act in his capacity as Holders Representative in a manner that the Escrow Agreement and such other actions on behalf of such Holders as it may deem necessary or appropriate Representative believes to be in connection with or to consummate the transactions contemplated hereby or thereby, including (i) taking all actions and making all filings on behalf of such Holders with any Governmental Authority or other Person necessary to effect the consummation best interests of the transactions contemplated by Holders. Neither the Holders Representative, nor any of its directors, officers, agents or employees, if any, shall be liable to any Person for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement or the Escrow Agreement, (ii) agreeing toexcept in the case of its gross negligence, negotiatingbad faith or willful breach. The Holders Representative may consult with legal counsel, entering into settlements independent public accountants and compromises of, complying other experts selected by him and shall not be liable for any action taken or omitted to be taken in good faith by him in accordance with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement or the Escrow Agreement on behalf advice of such Holderscounsel, including indemnifications claims, accountants or experts. The Holders Representative (iiiin his capacity as such) negotiating and executing shall not have any waivers duty to ascertain or amendments of this Agreement to inquire as to the performance or the Escrow Agreement (provided that any amendment that shall adversely and disproportionately affect the rights or obligations observance of any Holder shall require the prior written consent of such Holder) and (iv) taking all other actions that are either necessary or appropriate in its judgment for the accomplishment of the foregoing terms, covenants or contemplated by the terms conditions of this Agreement or the Escrow Agreement. The Holders’ Representative hereby accepts such appointment. The Holders’ Representative shall use commercially reasonable efforts based on contact information available to the Holders’ Representative to keep the Holders reasonably informed with respect to actions of the Holders’ Representative pursuant to the authority granted the Holders’ Representative under this Agreement which actions have a material impact on the amounts payable to the Holders. Each Holder shall promptly provide written notice to the Holders’ Representative of any change of address of such Holder.
(b) A decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) hereunder shall constitute a decision, act, consent or instruction of all Holders and shall be final, binding and conclusive upon each of such Holders, and the Escrow Agent and Buyer may rely upon any such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) as being the decision, act, consent or instruction of each and every such Holder. The Escrow Agent and Buyer shall be relieved from any liability As to any Person matters not expressly provided for any acts done by them in accordance with such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person).
(c) The Holders’ Representative shall have the right to recover from, at its sole discretion, the Holders’ Representative Expense Fund Account, the Holders’ Representative Expense Fund Property or any disbursements to be made to the Holders from the funds in the Indemnity Escrow Account, prior to any distribution to the Holders, (i) Holders’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and (ii) any amounts to which it is entitled pursuant to the indemnification provision in Section 9.10(e) (each item in clauses (i) and (ii) of this Section 9.10(c) referred to as a “Charge”, and collectively the “Charges”). In the event the Indemnity Escrow Account funds so distributed, the Holders’ Representative Expense Fund Account and the Holders’ Representative Expense Fund Property (collectively, the “Escrow Property”) is insufficient to satisfy the Charges, then the Holders (including the Holders’ Representative itself) will be obligated to pay the Charges in excess of the Escrow Property pro rata, based on their relative Indemnity Percentages.
(d) The Holders’ Representative will incur no liability with respect to any action taken or suffered by any party in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Holders’ 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 its own gross negligence, bad faith or willful misconduct. In all questions arising under this Agreement or the Escrow Agreement, the Holders’ Holders Representative may rely on the advice of outside counsel, and the Holders’ Representative will (in his capacity as such) shall not be liable to exercise any Holder for anything done, omitted discretion or suffered in good faith by the Holders’ Representative based on such advicetake any action.
(ed) The Holders Each Holder shall severally (each based on its Indemnity Percentage) but not jointly indemnify the Holders’ Representative and hold harmless and reimburse the Holders’ Holders Representative harmless from and against such ratable share of any lossand all liabilities, liability losses, damages, claims, costs or expense expenses suffered or incurred without by the Holders Representative arising out of or resulting from any action taken or omitted to be taken by the Holders Representative under this Agreement, the Escrow Agreement or in connection with the management and operation of the business related to the Covered Products, other than such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Holders Representative’s gross negligence, bad faith or willful misconduct, on the part of the Holders’ Representative and arising out of or in connection with the acceptance or administration of the Holders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Holders’ Representativebreach.
(f) At any time during the term of the Escrow Agreement, a majority-in-interest of Holders may, by written consent, appoint a new representative as the Holders’ Representative. Notice together with a copy of the written consent appointing such new representative and bearing the signatures of Holders of a majority-in-interest of those Holders must be delivered to Buyer and, if applicable, the Escrow Agent not less than ten days prior to such appointment. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer and, if applicable, the Escrow Agent. For the purposes of this Section 9.10, a “majority-in-interest of the Holders” shall mean Holders representing in the aggregate over 50% of the percentage interests in the Escrow Property.
(g) In the event that the Holders’ Representative becomes unable or unwilling to continue in its capacity as Holders’ Representative, or if the Holders’ Representative resigns as a Holders’ Representative, a majority-in-interest of the Holders shall use its reasonable best efforts, by written consent, to appoint a new representative as the Holders’ Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of the Holders of a majority-in-interest of the Holders must be delivered to Buyer and, if applicable, 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 Buyer and, if applicable, the Escrow Agent.
Appears in 1 contract
Sources: Merger Agreement (Netgear, Inc)
Holders Representative. (aa ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall act as the Stockholders' representative (the "HOLDERS' REPRESENTATIVE") Effective upon and by virtue for the purpose of the vote settling on behalf of the Stockholders approving any indemnification claims made by Buyer Indemnified Party hereunder, and adopting this Agreement taking any other action that is specifically delegated to the Holders' Representative hereunder. Buyer shall give notice under Section 11.4 of any claim for indemnification against the Stockholders to the Stockholders and the Merger (including pursuant to the Written Consent) and in respect of the other Holders by virtue of approval of the Merger pursuant to any Letter of Transmittal or other receipt of consideration in respect of the MergerHolders' Representative, and without any further act of any of only the Holders, the Holders’ ' Representative shall be hereby appointed as the representative of the Holders and as the attorney-in-fact and agent for and empowered following such notice to respond to or take any other action on behalf of each such Holder for purposes of this Agreement the Stockholders with respect to the claim. The Stockholders shall be bound by any and the Escrow Agreement and will take such all actions to be taken by the Holders’ ' Representative under on their behalf in accordance with this Agreement and the Escrow Agreement and such other actions on behalf of such Holders as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including (i) taking all actions and making all filings on behalf of such Holders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement or the Escrow Agreement, (ii) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement or the Escrow Agreement on behalf of such Holders, including indemnifications claims, (iii) negotiating and executing any waivers or amendments of this Agreement or the Escrow Agreement (provided that any amendment that shall adversely and disproportionately affect the rights or obligations of any Holder shall require the prior written consent of such Holder) and (iv) taking all other actions that are either necessary or appropriate in its judgment for the accomplishment of the foregoing or contemplated by the terms of this Agreement or the Escrow Agreement. The Holders’ Representative hereby accepts such appointment. The Holders’ Representative shall use commercially reasonable efforts based on contact information available to the Holders’ Representative to keep the Holders reasonably informed with respect to actions of the Holders’ Representative pursuant to the authority granted the Holders’ Representative under this Agreement which actions have a material impact on the amounts payable to the Holders. Each Holder shall promptly provide written notice to the Holders’ Representative of any change of address of such Holder.
(b) A decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) hereunder shall constitute a decision, act, consent or instruction of all Holders and shall be final, binding and conclusive upon each of such Holders, and the Escrow Agent and Buyer may rely upon any such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) as being the decision, act, consent or instruction of each and every such Holder. The Escrow Agent and b Buyer shall be relieved from entitled to rely exclusively upon any liability to any Person for any acts done communications or writings given or executed by them in accordance with such decision, act, consent or instruction of the Holders’ ' Representative (or and shall not be liable in any one of them, if the Holders’ Representative shall be comprised of more than one Person).
(c) The Holders’ Representative shall have the right to recover from, at its sole discretion, the Holders’ Representative Expense Fund Account, the Holders’ Representative Expense Fund Property or any disbursements to be made to the Holders from the funds in the Indemnity Escrow Account, prior to any distribution to the Holders, (i) Holders’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and (ii) any amounts to which it is entitled pursuant to the indemnification provision in Section 9.10(e) (each item in clauses (i) and (ii) of this Section 9.10(c) referred to as a “Charge”, and collectively the “Charges”). In the event the Indemnity Escrow Account funds so distributed, the Holders’ Representative Expense Fund Account and the Holders’ Representative Expense Fund Property (collectively, the “Escrow Property”) is insufficient to satisfy the Charges, then the Holders (including the Holders’ Representative itself) will be obligated to pay the Charges in excess of the Escrow Property pro rata, based on their relative Indemnity Percentages.
(d) The Holders’ Representative will incur no liability with respect to manner whatsoever for any action taken or suffered by any party not taken in reliance upon any notice, direction, instruction, consent, statement the actions taken or other document believed by such Holders’ Representative to be genuine and to have been signed not taken or communications or writings given or executed by the proper person Holders' Representative. Buyer shall be entitled to disregard any notices or communications given or made by the Stockholders unless given or made through the Holders' Representative.
(and shall have no responsibility c In the event of the death of the Holders' Representative or his inability to determine the authenticity thereof), nor for any other action or inaction, except its own gross negligence, bad faith or willful misconduct. In all questions arising under this Agreement or the Escrow Agreementperform his functions hereunder, the Stockholders who immediately prior to the Closing owned a majority of shares of Seller's Common Stock shall choose another Holders’ ' Representative.
(d The Holders' Representative may rely on the advice of outside counsel, and the Holders’ Representative will shall not be liable to any Holder Stockholder or any other party for anything doneany action taken or omitted to be taken by him as Holders' Representative except, omitted in the case of willful misconduct or suffered in good faith by the Holders’ Representative based on such advice.
(e) gross negligence. The Holders Stockholders shall severally (each based on its Indemnity Percentage) but not jointly indemnify the Holders’ ' Representative and hold the Holders’ Representative him harmless from and against any loss, liability or expense of any nature incurred without gross negligence, bad faith or willful misconduct, on the part of by the Holders’ ' Representative and arising out of or in connection with the acceptance or administration of the his duties as Holders’ ' Representative’s duties hereunder, including the reasonable legal fees and other costs and expenses of defending or preparing to defend against any legal counsel retained claim or liability in the premises, unless such loss, liability or expense shall be caused by the Holders’ ' Representative's willful misconduct or gross negligence.
(f) At e Solely with respect to Damages arising out of a breach by the Seller Parties of any time during the term of the Escrow Agreementrepresentations, a majority-in-interest warranties or covenants contained in Section 4.10, (i) any accounts receivable of Holders maySeller collected by Buyer later than 90 days from the Closing Date but within 180 days of the Closing Date shall be credited against the Indemnification Threshold (or remitted to Seller Parties to the extent that the Seller Parties have made indemnification payments to Buyer in connection with such accounts receivable), and (ii) any accounts receivable of Seller outstanding (the "UNCOLLECTIBLE RECEIVABLES") as of that date which is 180 days following the Closing Date (the "DETERMINATION DATE") shall be the net amount of the Uncollectible Receivables to be applied against the Indemnification Threshold. Within 15 days of the Determination Date, the Uncollectible Receivables as of the Determination Date shall be assigned by written consent, appoint a new representative as Buyer to the Holders’ Representative. Notice together with a copy ' Representative for collection on behalf of the written consent appointing such new representative and bearing the signatures of Holders of a majority-in-interest of those Holders must be delivered to Buyer and, if applicable, the Escrow Agent not less than ten days prior to such appointment. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer and, if applicable, the Escrow Agent. For the purposes of this Section 9.10, a “majority-in-interest of the Holders” shall mean Holders representing in the aggregate over 50% of the percentage interests in the Escrow PropertyStockholders for their own account.
(g) In the event that the Holders’ Representative becomes unable or unwilling to continue in its capacity as Holders’ Representative, or if the Holders’ Representative resigns as a Holders’ Representative, a majority-in-interest of the Holders shall use its reasonable best efforts, by written consent, to appoint a new representative as the Holders’ Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of the Holders of a majority-in-interest of the Holders must be delivered to Buyer and, if applicable, 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 Buyer and, if applicable, the Escrow Agent.
Appears in 1 contract
Sources: Merger Agreement (Verticalnet Inc)
Holders Representative. (a) Effective upon and by virtue 10.13.1. As an integral component of the vote terms and conditions of the Stockholders approving and adopting this Agreement and the Merger (including pursuant to the Written Consent) and in respect of the other Holders by virtue of approval of the Merger pursuant to any Letter of Transmittal or other receipt of consideration in respect of the Merger, and without any further act of any of the Holders, the Holders’ Representative shall be is hereby appointed irrevocably appointed, authorized and empowered as the representative of the Holders and their respective successors and assigns and as the attorney-in-fact fact, with full power of substitution and re-substitution, and exclusive agent for and on behalf of each such Holder for purposes of this Agreement and the Escrow Agreement and will is empowered to take such actions contemplated to be taken by the Holders’ Representative under this Agreement and the Escrow Agreement and such other actions on behalf of such Holders as it may deem necessary or appropriate in connection with with, or to consummate consummate, the transactions contemplated hereby or therebyContemplated Transactions, including (i) taking all actions and making all filings on behalf of such Holders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement or the Escrow AgreementContemplated Transactions, (ii) agreeing tomaking all determinations, negotiatingdecisions and judgments, making all filings, entering into settlements all Contracts, to prosecute, defend, settle or otherwise compromise all Actions and compromises ofclaims and to take all other actions, complying in each case on behalf of all or any subset of the Holders as required by or in connection with orders of courts this Agreement and the Escrow Agreement or the Contemplated Transactions, and providing any consents or waivers with respect toto any of the foregoing, (iii) taking any and all other actions on behalf of all or any subset of the Holders and their respective successors and assigns as the Holders’ Representative may from time to time deem necessary or desirable to resolve or settle claims, disagreements, disputes or Actions under or relating to this Agreement or any Escrow Agreement or otherwise administering relating to the Contemplated Transactions, (iv) to receive process on behalf of any or all of the Holders and handling their respective successors and assigns in any claim or Action in any way relating to this Agreement, the Escrow Agreement or the Contemplated Transactions and to file any proofs of debt, claims and petitions as the Holders’ Representative may deem necessary, appropriate or desirable in connection therewith and to file and prosecute appeals from any decision, judgment or award rendered in any such Action, (v) enforcing any rights or remedies of any of the Holders under this Agreement or in connection with the Escrow Agreement on behalf of such Holders, including indemnifications claimsContemplated Transactions, (iiivi) negotiating and executing any waivers or amendments of this Agreement or the Escrow Agreement (provided that any amendment that shall adversely and disproportionately affect the rights or obligations of any Holder shall require the prior written consent of such Holder) and (ivvii) taking all other actions that are either necessary or appropriate in its judgment for the accomplishment of the foregoing or contemplated by the terms of this Agreement or the Escrow Agreement. The Holders’ Representative hereby accepts such appointment. The Holders’ Representative shall use commercially reasonable efforts based on contact information available to the Holders’ Representative to keep the Holders reasonably informed with respect to actions of the Holders’ Representative pursuant to the authority granted the Holders’ Representative under this Agreement which actions have a material impact on the amounts payable to the Holders. Each Holder shall promptly provide written notice to the Holders’ Representative of any change of address of such Holder.
(b) 10.13.2. A decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) hereunder shall will constitute a decision, act, consent or instruction of all Holders and shall will be final, binding and conclusive upon each of such Holders, and the Escrow Agent and Buyer Parent may rely upon any such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) as being the decision, act, consent or instruction of each and every such Holder. The Escrow Agent and Buyer shall be relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person).
(c) 10.13.3. The Holders’ Representative shall will have the right to recover fromrecover, at its sole discretion, from the Holders’ Representative Expense Fund Account, the Holders’ Representative Expense Fund Property or any disbursements to be made to the Holders from the funds in the Indemnity Escrow AccountFund, prior to any distribution to the Holders, (i) the Holders’ Representative’s reasonable out-of-pocket expenses (including fees and charges of counsel, accountants or other agents) incurred in serving in that capacity and (ii) any amounts to which it is entitled pursuant to the indemnification provision in Section 9.10(e) 10.13.5 (each item in clauses (i) and (ii) of this Section 9.10(c) 10.13.3 referred to as a “Charge”, and collectively the “ChargesHolders’ Representative Expenses”). In the event the Indemnity Escrow Account funds so distributed, amount of the Holders’ Representative Expense Fund Account and the available to satisfy Holders’ Representative Expense Fund Property Expenses (collectively, the “Escrow Remaining Fund Property”) is insufficient to satisfy the Charges, then the Holders (including the all Holders’ Representative itself) Expenses, then each Holder will be obligated to pay its Pro Rata Share of the Charges Holders’ Representative Expenses in excess of the Escrow Property pro rata, based on their relative Indemnity PercentagesRemaining Fund Property.
(d) 10.13.4. The Holders’ Representative will incur no liability with respect to any action taken or suffered by any party in reliance upon any notice, direction, instruction, consent, statement or other document believed by such the Holders’ Representative to be genuine and to have been signed by the proper person (and shall the Holders’ Representative will have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except its own gross negligence, bad faith or willful misconduct. In all questions arising under this Agreement or the Escrow Agreement, the Holders’ Representative may rely on the advice of outside counsel, and the Holders’ Representative will not be liable to any Holder for anything done, omitted or suffered in good faith by the Holders’ Representative based on such advice.
(e) 10.13.5. The Holders shall will severally (each based on and limited to its Indemnity PercentagePro Rata Share) but not jointly indemnify the Holders’ Representative and hold the Holders’ Representative harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconductincurred, on the part of the Holders’ Representative and arising out of or in connection with the acceptance or administration of the Holders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel or other agents retained by the Holders’ Representative.
(f) At any time during the term of the Escrow Agreement, a majority-in-interest of Holders may, by written consent, appoint a new representative as the Holders’ Representative10.13.6. Notice together with a copy of the written consent appointing such new representative and bearing the signatures of Holders of a majority-in-interest of those Holders must be delivered to Buyer and, if applicable, the Escrow Agent not less than ten days prior to such appointment. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer and, if applicable, the Escrow Agent. For the purposes of this Section 9.10, a “majority-in-interest of the Holders” shall mean Holders representing in the aggregate over 50% of the percentage interests in the Escrow Property.
(g) In the event that the Holders’ Representative becomes unable or unwilling to continue in its capacity as Holders’ Representative, or if the Holders’ Representative resigns as a Holders’ Representative, a majority-in-interest of the Holders shall use its reasonable best effortsmay, by written consent, to appoint a new representative as the Holders’ Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of the Holders of a majority-in-interest of the Holders must be delivered to Buyer Parent and, if applicable, 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 Buyer Parent and, if applicable, the Escrow Agent. For the purposes of this Section 10.13, a “majority-in-interest of the Holders” means Holders representing in the aggregate a Pro Rata Share of greater than 50%.
10.13.7. From time to time, as necessary (in the good faith judgment of the Holders’ Representative), the Holder’s Representative shall update the Pro-Rata Schedule by delivery of written notice to the Parent. Following the Closing, any payments to be made to the Stockholders shall be made to such Stockholders by the Surviving Corporation, or Escrow Agent, as applicable, in accordance with this Agreement, the Transmittal Documents and the Pro-Rata Schedule. Notwithstanding anything herein to the contrary, Parent and the Surviving Corporation shall not be liable for payment of any wrong amount to the Stockholders following the Closing to the extent such amount was calculated consistently by the Surviving Corporation using the percentages set forth in the Pro-Rata Schedule.
10.13.8. Notwithstanding anything to the contrary contained in in this Agreement or any Escrow Agreement, (i) no Holder shall have any right to, or any interest or claim relating to the Escrow Funds or the Holders’ Representative Fund unless and until it has been finally determined in accordance with the terms and conditions of this Agreement or the Escrow Agreement that such funds or other property are to be distributed to such Holder in accordance with the terms and conditions of this Agreement or the Escrow Agreement, as applicable.
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Holders Representative. (a) Effective upon and by virtue For purposes of this Agreement, the Holders hereby consent to the appointment of the vote of the Stockholders approving and adopting this Agreement and the Merger (including pursuant to the Written Consent) and in respect of the other Holders by virtue of approval of the Merger pursuant to any Letter of Transmittal or other receipt of consideration in respect of the MergerRepresentative, and without any further act of any as representative of the Holders, the Holders’ Representative shall be hereby appointed as the representative of the Holders and as the attorney-in-fact and agent for and on behalf of each such Holder for purposes Holder, and, subject to the express limitation set forth below, the taking by the Representative of this Agreement any and all actions and the Escrow Agreement and will take such actions making of any decisions required or permitted to be taken by the Holders’ Representative under this Agreement and Agreement, including, without limitation, the Escrow Agreement and such other actions on behalf exercise of such Holders as it may deem necessary or appropriate in connection with or the power to consummate the transactions contemplated hereby or thereby, including (i) taking all actions and making all filings on behalf of such Holders with any Governmental Authority or other Person necessary authorize delivery to effect the consummation ▇▇▇▇▇▇▇▇ of the transactions contemplated by this Agreement Escrow Shares, or the Escrow Agreementany portion thereof, in satisfaction of any Claims, (ii) agreeing agree to, negotiatingnegotiate, entering enter into settlements and compromises of, complying and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, and otherwise administering and handling to any claims under this Agreement or the Escrow Agreement on behalf of such Holders, including indemnifications claimsClaims, (iii) negotiating and executing resolve any waivers or amendments of this Agreement or the Escrow Agreement (provided that any amendment that shall adversely and disproportionately affect the rights or obligations of any Holder shall require the prior written consent of such Holder) Claims, and (iv) taking take all other actions that are either necessary or appropriate in its the judgment of the Representative for the accomplishment of the foregoing or contemplated by and all of the terms other terms, conditions and limitations of this Agreement or the Escrow Agreement. The Holders’ Representative hereby accepts such appointment. The Holders’ Representative shall use commercially reasonable efforts based will have unlimited authority and power to act on contact information available to the Holders’ Representative to keep the Holders reasonably informed behalf of each Holder with respect to actions of the Holders’ Representative pursuant to the authority granted the Holders’ Representative under this Agreement which actions have a material impact on and the amounts payable to the Holders. Each Holder shall promptly provide written notice to the Holders’ Representative of any change of address of such Holder.
(b) A decisiondisposition, act, consent settlement or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) hereunder shall constitute a decision, act, consent or instruction other handling of all Holders and shall be finalClaims, binding and conclusive upon each of such Holders, and the Escrow Agent and Buyer may rely upon any such decision, act, consent rights or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) as being the decision, act, consent or instruction of each and every such Holder. The Escrow Agent and Buyer shall be relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person).
(c) The Holders’ Representative shall have the right to recover from, at its sole discretion, the Holders’ Representative Expense Fund Account, the Holders’ Representative Expense Fund Property or any disbursements to be made to the Holders from the funds in the Indemnity Escrow Account, prior to any distribution to the Holders, (i) Holders’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and (ii) any amounts to which it is entitled pursuant to the indemnification provision in Section 9.10(e) (each item in clauses (i) and (ii) of this Section 9.10(c) referred to as a “Charge”, and collectively the “Charges”). In the event the Indemnity Escrow Account funds so distributed, the Holders’ Representative Expense Fund Account and the Holders’ Representative Expense Fund Property (collectively, the “Escrow Property”) is insufficient to satisfy the Charges, then the Holders (including the Holders’ Representative itself) will be obligated to pay the Charges in excess of the Escrow Property pro rata, based on their relative Indemnity Percentages.
(d) The Holders’ Representative will incur no liability with respect to any action taken or suffered by any party in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Holders’ 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 its own gross negligence, bad faith or willful misconduct. In all questions obligations arising under this Agreement so long as all Holders are treated in the same manner. The Holders will be bound by all actions taken by the Representative in connection with this Agreement, and ▇▇▇▇▇▇▇▇ will be entitled to rely on any action or decision of the Escrow Representative. In performing the functions specified in this Agreement, the Holders’ Representative may rely on the advice of outside counsel, and the Holders’ Representative will not be liable to any Holder for anything done, omitted or suffered the Holders in good faith by the Holders’ Representative based on such advice.
(e) The Holders shall severally (each based on its Indemnity Percentage) but not jointly indemnify the Holders’ Representative and hold the Holders’ Representative harmless against any loss, liability or expense incurred without absence of gross negligence, bad faith negligence or willful misconduct. The Representative may resign from such position, on the part effective upon a new representative being appointed in writing by Holders who beneficially own a majority of the Holders’ Escrow Shares. The Representative and arising out of will not be entitled to receive any compensation from ▇▇▇▇▇▇▇▇ or the Holders in connection with the acceptance or administration of the Holders’ Representative’s duties hereunder, including the reasonable fees this Agreement. Any out-of-pocket costs and expenses of any legal counsel retained reasonably incurred by the Holders’ Representative.
(f) At any time during Representative in connection with actions taken pursuant to the term terms of the Escrow Agreement, a majority-in-interest of Holders may, by written consent, appoint a new representative as the Holders’ Representative. Notice together with a copy of the written consent appointing such new representative and bearing the signatures of Holders of a majority-in-interest of those Holders must be delivered to Buyer and, if applicable, the Escrow Agent not less than ten days prior to such appointment. Such appointment this Agreement will be effective upon paid by the later of Holders to the date indicated Representative in the consent or the date such consent is received by Buyer and, if applicable, the Escrow Agent. For the purposes of this Section 9.10, a “majority-in-interest of the Holders” shall mean Holders representing in the aggregate over 50% of the proportion to their percentage interests in the Escrow Property.
(g) In the event that the Holders’ Representative becomes unable or unwilling to continue in its capacity Shares as Holders’ Representative, or if the Holders’ Representative resigns as a Holders’ Representative, a majority-in-interest of the Holders shall use its reasonable best efforts, by written consent, to appoint a new representative as the Holders’ Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of the Holders of a majority-in-interest of the Holders must be delivered to Buyer and, if applicable, 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 Buyer and, if applicable, the Escrow Agent.set forth on ATTACHMENT A.
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Holders Representative. (a) Effective upon and For purposes of this Escrow Agreement, the Holders have, by virtue the execution of the vote of the Stockholders approving and adopting this Agreement and the Merger (including pursuant Escrow Agreement, consented to the Written Consent) and in respect of the other Holders by virtue of approval of the Merger pursuant to any Letter of Transmittal or other receipt of consideration in respect of the Merger, and without any further act of any appointment of the Holders, the Holders’ ' Representative shall be hereby appointed as the representative of the Holders and as the attorney-in-fact and agent for and on behalf of each such Holder for purposes Holder, and, subject to the express limitations set forth below, the taking by the Holders' Representative of this Agreement any and all actions and the Escrow Agreement and will take such actions making of any decisions required or permitted to be taken by the Holders’ ' Representative under this Agreement and the Escrow Agreement and such other actions on behalf of such Holders as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or therebyAgreement, including but not limited to the exercise of the power to: (i) taking all actions and making all filings on behalf of such Holders with any Governmental Authority or other Person necessary authorize delivery to effect the consummation KHC of the transactions contemplated by this Agreement Escrow Shares, or the Escrow Agreementany portion thereof, (ii) agreeing agree to, negotiatingnegotiate, entering enter into settlements and compromises of, complying and demand arbitration and comply with orders of courts and awards of arbitrators with respect toto disputes under this Escrow Agreement, and otherwise administering and handling any claims under this Agreement or the Escrow Agreement on behalf of such Holders, including indemnifications claims, (iii) negotiating and executing any waivers or amendments take all actions necessary in the judgment of this Agreement or the Escrow Agreement (provided that any amendment that shall adversely and disproportionately affect the rights or obligations of any Holder shall require the prior written consent of such Holder) and (iv) taking all other actions that are either necessary or appropriate in its judgment Holders' Representative for the accomplishment of the foregoing or contemplated by and all of the terms other terms, conditions, and limitations of this Agreement or the Escrow Agreement. The Holders’ Representative hereby accepts such appointment. The Holders’ ' Representative shall use commercially reasonable efforts based have unlimited authority and power to act on contact information available to the Holders’ Representative to keep the Holders reasonably informed behalf of each Holder with respect to actions this Escrow Agreement (including without limitation the amendment of the Holders’ Representative pursuant to terms hereof) and the authority granted disposition, settlement, or other handling of all claims, rights, or obligations arising under this Escrow Agreement so long as all Holders are treated in the same manner. The Holders shall be bound by all actions taken by the Holders’ ' Representative under in connection with this Agreement which actions have a material impact on the amounts payable to the Holders. Each Holder shall promptly provide written notice to the Holders’ Representative of any change of address of such Holder.
(b) A decisionEscrow Agreement, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) hereunder shall constitute a decision, act, consent or instruction of all Holders and shall be final, binding and conclusive upon each of such Holders, KHC and the Escrow Agent and Buyer may shall be entitled to rely upon on any such decision, act, consent action or instruction decision of the Holders’ Representative (or any one of them, if the ' Representative. In performing Holders’ Representative shall be comprised of more than one Person) as being the decision, act, consent or instruction of each and every such Holder. The Escrow Agent and Buyer shall be relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person).
(c) The Holders’ Representative shall have the right to recover from, at its sole discretion' Representative's functions hereunder, the Holders’ ' Representative Expense Fund Account, the Holders’ Representative Expense Fund Property or any disbursements to shall not be made liable to the Holders from the funds in the Indemnity absence of gross negligence or willful misconduct. The Holders' Representative shall not be entitled to receive any compensation from KHC or out of the Escrow Account, prior to Shares in connection with this Escrow Agreement. The Holders will pay any distribution to the Holders, (i) Holders’ Representative’s reasonable out-of-pocket costs and expenses reasonably incurred by the Holders' Representative in serving in that capacity and (ii) any amounts to which it is entitled connection with actions taken pursuant to the indemnification provision in Section 9.10(e) (each item in clauses (i) and (ii) terms of this Section 9.10(c) referred Escrow Agreement to as a “Charge”, and collectively the “Charges”). In the event the Indemnity Escrow Account funds so distributed, the Holders’ ' Representative Expense Fund Account and the Holders’ Representative Expense Fund Property (collectively, the “Escrow Property”) is insufficient in proportion to satisfy the Charges, then the Holders (including the Holders’ Representative itself) will be obligated to pay the Charges in excess of the Escrow Property pro rata, based on their relative Indemnity Percentages.
(d) The Holders’ Representative will incur no liability with respect to any action taken or suffered by any party in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Holders’ 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 its own gross negligence, bad faith or willful misconduct. In all questions arising under this Agreement or the Escrow Agreement, the Holders’ Representative may rely on the advice of outside counsel, and the Holders’ Representative will not be liable to any Holder for anything done, omitted or suffered in good faith by the Holders’ Representative based on such advice.
(e) The Holders shall severally (each based on its Indemnity Percentage) but not jointly indemnify the Holders’ Representative and hold the Holders’ Representative harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct, on the part of the Holders’ Representative and arising out of or in connection with the acceptance or administration of the Holders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Holders’ Representative.
(f) At any time during the term of the Escrow Agreement, a majority-in-interest of Holders may, by written consent, appoint a new representative as the Holders’ Representative. Notice together with a copy of the written consent appointing such new representative and bearing the signatures of Holders of a majority-in-interest of those Holders must be delivered to Buyer and, if applicable, the Escrow Agent not less than ten days prior to such appointment. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer and, if applicable, the Escrow Agent. For the purposes of this Section 9.10, a “majority-in-interest of the Holders” shall mean Holders representing in the aggregate over 50% of the percentage interests in the Escrow PropertyShares.
(g) In the event that the Holders’ Representative becomes unable or unwilling to continue in its capacity as Holders’ Representative, or if the Holders’ Representative resigns as a Holders’ Representative, a majority-in-interest of the Holders shall use its reasonable best efforts, by written consent, to appoint a new representative as the Holders’ Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of the Holders of a majority-in-interest of the Holders must be delivered to Buyer and, if applicable, 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 Buyer and, if applicable, the Escrow Agent.
Appears in 1 contract
Holders Representative. (a) Effective upon The adoption and by virtue approval of the vote of the Stockholders approving and adopting this Agreement and by the Merger (including pursuant to the Written Consent) and in respect of the other Holders by virtue of Company's stockholders shall constitute approval of the Merger pursuant to any Letter Escrow Agreement and of Transmittal or other receipt of consideration in respect all of the Mergerarrangements relating thereto, including without limitation the placement of the Escrow Shares in escrow, and without any further act of any the appointment of the Stephen Fredrick as Holders, the Holders’ Representative shall be hereby appointed as the representative ' ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ to act for and on behalf of all stockholders of the Holders and Company, as the attorney-in-fact and agent for of all such persons, to give and on behalf receive notices and communications, to authorize delivery of each such Holder for purposes any shares of this Agreement Parent Common Stock and cash, if any, from the Escrow Agreement and will take Fund in satisfaction of claims by Parent Indemnitees, to object to such actions deliveries, to be taken by the Holders’ Representative under this Agreement and the Escrow Agreement and such other actions on behalf of such Holders as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including (i) taking all actions and making all filings on behalf of such Holders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement or the Escrow Agreement, (ii) agreeing agree to, negotiating, entering negotiate and enter into settlements and compromises of, complying and comply with orders of courts and decrees with respect toto such claims, and otherwise administering and handling any claims under this Agreement or the Escrow Agreement on behalf of such Holders, including indemnifications claims, (iii) negotiating and executing any waivers or amendments of this Agreement or the Escrow Agreement (provided that any amendment that shall adversely and disproportionately affect the rights or obligations of any Holder shall require the prior written consent of such Holder) and (iv) taking to take all other actions that are either necessary or appropriate in its the judgment of such representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement or the Escrow Agreementforegoing. The Holders’ Representative hereby accepts such appointment. The Holders’ Representative shall use commercially reasonable efforts based on contact information available to the Holders’ Representative to keep the Holders reasonably informed with respect to actions of the Holders’ Representative pursuant to the authority granted the Holders’ Representative under this Agreement which actions have a material impact on the amounts payable to the Holders. Each Holder shall promptly provide written notice to the Holders’ Representative of any change of address of such Holder.
(b) A decision, act, consent or instruction of the Holders’ ' Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) hereunder shall constitute a decision, act, consent or instruction decision of all Holders the stockholders of Company and shall be final, binding and conclusive upon each of the stockholders of Company. Without limiting the generality of the foregoing, the Holders' Representative shall have full power and authority, on behalf of all the Company Stockholders and their successors, to interpret all the terms and provisions of this Agreement, to dispute or fail to dispute any Claim of Indemnifiable Damages against the Escrow Shares made by a Parent Indemnitee, to assert Claims of Indemnifiable Damages against any the Escrow Fund, to negotiate and compromise any dispute which may arise under this Agreement, to sign any releases or other documents with respect to any such dispute, and to authorize delivery of Escrow Shares pursuant to the Escrow Agreement or any other payments to be made with respect thereto.
(b) The Holders' Representative, or any successor hereafter appointed, may resign and shall be discharged of his duties hereunder upon the appointment of a successor Holders' Representative as hereinafter provided. In case of such resignation, or in the event of the death or inability to act of the Representative, a successor shall be named from among the Stockholders by a majority of the members of the Board of Directors of who served on such board prior to the Merger. Each such successor Holders' Representative shall have all the power, authority, rights and privileges hereby conferred upon the original Holders' Representative, and the Escrow Agent and Buyer may rely upon any such decision, act, consent or instruction of the term "Holders’ Representative (or any one of them, if the Holders’ Representative ' Representative" as used herein shall be comprised of more than one Person) as being the decision, act, consent or instruction of each and every deemed to include such Holder. The Escrow Agent and Buyer shall be relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the successor Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person)' Representative.
(c) The Holders’ Representative shall have In performing any of its duties under this Agreement, or upon the right claimed failure to recover from, at its sole discretionperform his duties hereunder, the Holders’ ' Representative Expense Fund Account, the Holders’ Representative Expense Fund Property or any disbursements to shall not be made liable to the Holders from the funds in the Indemnity Escrow AccountCompany stockholders or anyone else for any Indemnifiable Damages, prior to any distribution to the Holders, (i) Holders’ Representative’s reasonable out-of-pocket losses or expenses incurred in serving in that capacity and (ii) any amounts to which it is entitled pursuant to the indemnification provision in Section 9.10(e) (each item in clauses (i) and (ii) of this Section 9.10(c) referred to they may incur as a “Charge”result of any act, and collectively the “Charges”). In the event the Indemnity Escrow Account funds so distributed, the Holders’ Representative Expense Fund Account and the Holders’ Representative Expense Fund Property (collectively, the “Escrow Property”) is insufficient or failure to satisfy the Charges, then the Holders (including the Holders’ Representative itself) will be obligated to pay the Charges in excess of the Escrow Property pro rata, based on their relative Indemnity Percentages.
(d) The Holders’ Representative will incur no liability with respect to any action taken or suffered by any party in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Holders’ 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 its own gross negligence, bad faith or willful misconduct. In all questions arising act under this Agreement or the Escrow Agreement; provided, however, that the Holders’ Representative may rely on the advice of outside counsel, and the Holders’ Representative will not shall be liable to any Holder for anything done, Indemnifiable Damages arising out of actions or omissions that both (i) were taken or omitted or suffered not in good faith and (ii) constituted willful default or gross negligence under this Agreement or the Escrow Agreement. Accordingly, the Representative shall not incur any such Liability with respect to (i) any action taken or omitted to be taken in good faith upon advice of his counsel given with respect to any questions relating to the duties and responsibilities of the Holders' Representative hereunder; or (ii) any action taken or omitted to be taken in reliance upon any document, including any written notice or instructions provided for in this Agreement or the Escrow Agreement, not only as to its due execution and to the validity and effectiveness of its provisions, but also as to the truth and accuracy of any information contained therein, which the Holders' Representative shall in good faith believe to be genuine, to have been signed or presented by the purported proper person or persons and to conform with the provisions of this Agreement and the Escrow Agreement. The limitation of liability provisions of this Section shall survive the termination of this Agreement and the resignation of the Holders’ Representative based on such advice.
(e) ' Representative. The Holders stockholders of Company shall severally (each based on its Indemnity Percentage) but not jointly indemnify the Holders’ ' Representative and hold the Holders’ Representative him harmless against any loss, liability or expense (including any expenses of legal counsel retained by the Holders' Representative) incurred without willful default, gross negligence, negligence or bad faith or willful misconduct, on the part of the Holders’ ' Representative and arising out of or in connection with the acceptance or administration of the Holders’ Representative’s his duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Holders’ Representative.
(f) At any time during the term of the Escrow Agreement, a majority-in-interest of Holders may, by written consent, appoint a new representative as the Holders’ Representative. Notice together with a copy of the written consent appointing such new representative and bearing the signatures of Holders of a majority-in-interest of those Holders must be delivered to Buyer and, if applicable, the Escrow Agent not less than ten days prior to such appointment. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer and, if applicable, the Escrow Agent. For the purposes of this Section 9.10, a “majority-in-interest of the Holders” shall mean Holders representing in the aggregate over 50% of the percentage interests in the Escrow Property.
(g) In the event that the Holders’ Representative becomes unable or unwilling to continue in its capacity as Holders’ Representative, or if the Holders’ Representative resigns as a Holders’ Representative, a majority-in-interest of the Holders shall use its reasonable best efforts, by written consent, to appoint a new representative as the Holders’ Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of the Holders of a majority-in-interest of the Holders must be delivered to Buyer and, if applicable, 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 Buyer and, if applicable, the Escrow Agent.
Appears in 1 contract
Holders Representative. (a) Effective upon and by virtue ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall act as the Principal Stockholders' representative (the "Holders' Representative") for the purpose of settling on behalf of the vote Principal Stockholders any indemnification claims made by a Buyer Indemnified Party hereunder, and taking any other action that is specifically delegated to the Holders' Representative hereunder. Buyer shall give notice under Section 11.4 of any claim for indemnification against the Principal Stockholders approving and adopting this Agreement to the Principal Stockholders and the Merger (including pursuant to the Written Consent) and in respect of the other Holders by virtue of approval of the Merger pursuant to any Letter of Transmittal or other receipt of consideration in respect of the MergerHolders' Representative, and without any further act of any of only the Holders, the Holders’ ' Representative shall be hereby appointed as the representative of the Holders and as the attorney-in-fact and agent for and empowered following such notice to respond to or take any other action on behalf of each such Holder for purposes of this Agreement the Principal Stockholders with respect to the claim. The Principal Stockholders shall be bound by any and the Escrow Agreement and will take such all actions to be taken by the Holders’ ' Representative under on their behalf in accordance with this Agreement and the Escrow Agreement and such other actions on behalf of such Holders as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including (i) taking all actions and making all filings on behalf of such Holders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement or the Escrow Agreement, (ii) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement or the Escrow Agreement on behalf of such Holders, including indemnifications claims, (iii) negotiating and executing any waivers or amendments of this Agreement or the Escrow Agreement (provided that any amendment that shall adversely and disproportionately affect the rights or obligations of any Holder shall require the prior written consent of such Holder) and (iv) taking all other actions that are either necessary or appropriate in its judgment for the accomplishment of the foregoing or contemplated by the terms of this Agreement or the Escrow Agreement. The Holders’ Representative hereby accepts such appointment. The Holders’ Representative shall use commercially reasonable efforts based on contact information available to the Holders’ Representative to keep the Holders reasonably informed with respect to actions of the Holders’ Representative pursuant to the authority granted the Holders’ Representative under this Agreement which actions have a material impact on the amounts payable to the Holders. Each Holder shall promptly provide written notice to the Holders’ Representative of any change of address of such Holder.
(b) A decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) hereunder shall constitute a decision, act, consent or instruction of all Holders and shall be final, binding and conclusive upon each of such Holders, and the Escrow Agent and Buyer may rely upon any such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) as being the decision, act, consent or instruction of each and every such Holder. The Escrow Agent and Buyer shall be relieved from entitled to rely exclusively upon any liability to communications or writings given or executed by the Holders' Representative and shall not be liable in any Person manner whatsoever for any acts done action taken or not taken in reliance upon the actions taken or not taken or communications or writings given or executed by them in accordance with such decision, act, consent or instruction of the Holders’ Representative (' Representative. Buyer shall be entitled to disregard any notices or any one of them, if communications given or made by the Principal Stockholders unless given or made through the Holders’ Representative shall be comprised of more than one Person)' Representative.
(c) The Holders’ Representative shall have the right to recover from, at its sole discretion, the Holders’ Representative Expense Fund Account, the Holders’ Representative Expense Fund Property or any disbursements to be made to the Holders from the funds in the Indemnity Escrow Account, prior to any distribution to the Holders, (i) Holders’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and (ii) any amounts to which it is entitled pursuant to the indemnification provision in Section 9.10(e) (each item in clauses (i) and (ii) of this Section 9.10(c) referred to as a “Charge”, and collectively the “Charges”). In the event of the Indemnity Escrow Account funds so distributeddeath of the Holders' Representative or his inability to perform his functions hereunder, the Holders’ Representative Expense Fund Account and Principal Stockholder or Principal Stockholders who immediately prior to the Holders’ Representative Expense Fund Property (collectively, the “Escrow Property”) is insufficient to satisfy the Charges, then the Holders (including the Holders’ Representative itself) will be obligated to pay the Charges in excess Closing owned a majority of shares of the Escrow Property pro rata, based on their relative Indemnity PercentagesCompany's Common Stock shall choose another Holders' Representative.
(d) The Holders’ ' Representative will incur no liability with respect to any action taken or suffered by any party in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Holders’ 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 its own gross negligence, bad faith or willful misconduct. In all questions arising under this Agreement or the Escrow Agreement, the Holders’ Representative may rely on the advice of outside counsel, and the Holders’ Representative will not be liable to any Holder Principal Stockholder or any other party for anything done, any action taken or omitted to be taken by him as Holders' Representative except in the case of willful misconduct or suffered in good faith by the Holders’ Representative based on such advice.
(e) gross negligence. The Holders Principal Stockholders shall severally (each based on its Indemnity Percentage) but not jointly indemnify the Holders’ ' Representative and hold the Holders’ Representative him harmless from and against any loss, liability or expense of any nature incurred without gross negligence, bad faith or willful misconduct, on the part of by the Holders’ ' Representative and arising out of or in connection with the acceptance or administration of the his duties as Holders’ ' Representative’s duties hereunder, including the reasonable legal fees and other costs and expenses of defending or preparing to defend against any legal counsel retained claim or liability, unless such loss, liability or expense shall be caused by the Holders’ ' Representative's willful misconduct or gross negligence.
(f) At any time during the term of the Escrow Agreement, a majority-in-interest of Holders may, by written consent, appoint a new representative as the Holders’ Representative. Notice together with a copy of the written consent appointing such new representative and bearing the signatures of Holders of a majority-in-interest of those Holders must be delivered to Buyer and, if applicable, the Escrow Agent not less than ten days prior to such appointment. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer and, if applicable, the Escrow Agent. For the purposes of this Section 9.10, a “majority-in-interest of the Holders” shall mean Holders representing in the aggregate over 50% of the percentage interests in the Escrow Property.
(g) In the event that the Holders’ Representative becomes unable or unwilling to continue in its capacity as Holders’ Representative, or if the Holders’ Representative resigns as a Holders’ Representative, a majority-in-interest of the Holders shall use its reasonable best efforts, by written consent, to appoint a new representative as the Holders’ Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of the Holders of a majority-in-interest of the Holders must be delivered to Buyer and, if applicable, 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 Buyer and, if applicable, the Escrow Agent.
Appears in 1 contract
Sources: Merger Agreement (Verticalnet Inc)
Holders Representative. (a) Effective upon and by virtue of the vote of the Stockholders approving and adopting this Agreement and the Merger (including pursuant to the Written Consent) and in respect of the other The Holders by virtue of approval of the Merger pursuant to any Letter of Transmittal or other receipt of consideration in respect of the MergerRepresentative, and without any further act of any of the Holdersits successors, the Holders’ Representative shall be is hereby appointed by the Company as the representative of the Holders and as the attorney-in-fact fact, proxy and agent for and on behalf of each of the Holders, with full power of substitution and re-substitution to act in its, his or her name, place and ▇▇▇▇▇ in connection with the authority granted to such Holders Representative pursuant to this Section 7.14, and such appointment is coupled with an interest and shall survive the death, incompetency, bankruptcy or liquidation of each such Holder. By executing this Agreement under the heading “Holders Representative,” Catapult Energy Services Group, LLC hereby (i) accepts its appointment and authorization to act as Holders Representative and agent, proxy and attorney-in-fact on behalf of the Holders in accordance with the terms of this Agreement, and (ii) agrees to perform its obligations under, and otherwise comply with, this Section 7.14.
(b) Except as otherwise set forth in this Section 7.14, all the statements, directions or other communications made by the Holders Representative are binding on each of the Holders as if such Holder for purposes had made the statement, direction or other communication itself.
(c) The Holders Representative shall have the authority to take all actions it believes necessary or appropriate under this Agreement, including interpreting all of the terms and provisions of this Agreement Agreement, authorizing payments to be made with respect hereto and thereto, determining and settling all payment obligations pursuant to this Agreement, determining the allocation of proceeds pursuant to this Agreement, consenting to, compromising or settling all claims, conducting negotiations with Buyer and its agents regarding such claims, and engaging counsel, accountants or other Representatives in connection with the foregoing. Without limiting the foregoing, (i) the Holders Representative shall be authorized to act as the sole point of contact between the Buyer and the Escrow Agreement Holders, to take any and will take such all actions required or permitted to be taken by the Holders Representative under or in connection with this Agreement and to do all things and execute any and all documents which may be necessary, convenient or appropriate to facilitate the consummation of the Contemplated Transactions, and for the following additional purposes: (A) to give and receive notices and communications to or from the Buyer relating to this Agreement and the Transaction Documents and the other Contemplated Transactions and the Transaction Documents; (B) to act on such Holder’s behalf with respect to the matters set forth in Section 1.10, Section 1.11 and Section 1.12, in accordance with the terms and provisions of Section 1.10, Section 1.11 and Section 1.12, including giving and receiving all notices and communications to be given or received with respect to the matters set forth in Section 1.10, Section 1.11 and Section 1.12 and disputing the matters in Section 1.10, Section 1.11 and Section 1.12; (C) to authorize deliveries to Buyer of cash from the Indemnification Escrow Account in satisfaction of claims for indemnification pursuant to Article V or otherwise pursuant to this Agreement or for the payment of any Merger Consideration adjustment amounts pursuant to Section 1.10 and Section 1.12; (D) to authorize deliveries to the Holders Representative (on behalf of the Holders’ Representative ) or to Holders of cash from the Escrow Accounts once such funds are eligible for distribution therefrom; (E) on behalf of the Holders, to initiate or to refrain from initiating or to dispute or to refrain from disputing any indemnity or other claim under this Agreement and the Escrow Agreement and such other actions Transaction Documents, as the Holders Representative, in its reasonable discretion, determines to be necessary or desirable; (F) on behalf of such Holders as it the Holders, to negotiate, compromise and resolve any dispute which may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including (i) taking all actions and making all filings on behalf of such Holders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement or the Escrow Agreement, (ii) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims arise under this Agreement or the Escrow Agreement Transaction Documents, as the Holders Representative, in its reasonable discretion, determines to be necessary or desirable; (G) on behalf of such the Holders, to exercise or refrain from exercising rights or remedies (including indemnifications claims, (iii) negotiating and executing any waivers rights or amendments remedies of a Holder as a third party beneficiary of this Agreement) available under this Agreement and the Transaction Documents and to sign any release or other document with respect to such dispute or remedy, as the Escrow Holders Representative, in its reasonable discretion, determines to be necessary or desirable; (H) to execute and deliver waivers and consents in connection with this Agreement and the Transaction Documents as the Holders Representative, in its reasonable discretion, determines to be necessary or desirable; (provided that any amendment that shall adversely and disproportionately affect the rights or obligations of any Holder shall require the prior written consent of I) to act on such Holder) ’s behalf with respect to the matters set forth in Section 4.5 and Section 4.6; and (ivJ) taking to take all other actions that are either necessary or appropriate in its judgment the reasonable discretion of the Holders Representative for the accomplishment of the foregoing foregoing, in each case without having to seek or contemplated obtain the consent of any Holder and (ii) agrees to be bound by all agreements and determinations made by and documents executed and delivered by the terms of this Agreement or the Escrow Agreement. The Holders’ Representative hereby accepts such appointment. The Holders’ Representative shall use commercially reasonable efforts based on contact information available to the Holders’ Representative to keep the Holders reasonably informed with respect to actions of the Holders’ Representative pursuant to the authority granted to it hereunder.
(d) The Holders Representative (i) shall not be liable for any actions taken or omitted to be taken under or in connection with this Agreement or the Holders’ Contemplated Transactions and (ii) shall not owe or have any fiduciary duty or fiduciary responsibility to any Holder as a result of any action taken by the Holders Representative pursuant to this Agreement, except for any such action taken or omitted to be taken resulting from the Holders Representative’s willful misconduct. The Holders Representative is authorized to act on its behalf, notwithstanding any dispute or disagreement between any Holder and the Holders Representative, and each Indemnified Party and any other Person shall be entitled to rely on any and all actions taken by the Holders Representative under this Agreement which actions have a material impact on the amounts payable without any liability to, or obligation to inquire of, any of the Holders. Each Holder shall promptly provide written Any notice to the Holders’ Representative of or communication given or received by, and any change of address of such Holder.
(b) A decision, actaction, consent failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Holders Representative that is within the scope of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) hereunder Holders Representative’s authority under this Section 7.14 shall constitute a notice or communication to or by, or a decision, actaction, consent failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Holders and shall be final, binding and conclusive upon each of such Holders, Holder. Each Indemnified Party and the Escrow Agent and Buyer may any other Person shall be entitled to rely upon any such notice, communication, decision, actaction, consent failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person) as being the a notice or communication to or by, or a decision, actaction, consent failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of of, each and every such Holder. The Escrow Agent and Buyer shall be relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Holders’ Representative (or any one of them, if the Holders’ Representative shall be comprised of more than one Person).
(c) The Holders’ Representative shall have the right to recover from, at its sole discretion, the Holders’ Representative Expense Fund Account, the Holders’ Representative Expense Fund Property or any disbursements to be made to the Holders from the funds in the Indemnity Escrow Account, prior to any distribution to the Holders, (i) Holders’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity and (ii) any amounts to which it is entitled pursuant to the indemnification provision in Section 9.10(e) (each item in clauses (i) and (ii) of this Section 9.10(c) referred to as a “Charge”, and collectively the “Charges”). In the event the Indemnity Escrow Account funds so distributed, the Holders’ Representative Expense Fund Account and the Holders’ Representative Expense Fund Property (collectively, the “Escrow Property”) is insufficient to satisfy the Charges, then the Holders (including the Holders’ Representative itself) will be obligated to pay the Charges in excess of the Escrow Property pro rata, based on their relative Indemnity Percentages.
(d) The Holders’ Representative will incur no liability with respect to any action taken or suffered by any party in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Holders’ 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 its own gross negligence, bad faith or willful misconduct. In all questions arising under this Agreement or the Escrow Agreement, the Holders’ Representative may rely on the advice of outside counsel, and the Holders’ Representative will not be liable to any Holder for anything done, omitted or suffered in good faith by the Holders’ Representative based on such advice.
(e) Absent willful misconduct, any actions taken by the Holders Representative pursuant to the authority granted in this Section 7.14 or otherwise under this Agreement shall be immediately and unconditionally effective and absolutely binding on the Holders as if such actions had been directly taken by the Holders.
(f) The Buyer shall be entitled to rely upon the actions, determinations and authority of the Holders Representative to act as the agent of the Holders.
(g) The Holders shall severally (each based on its Indemnity Percentage) but not shall, jointly and severally, indemnify the Holders’ Holders Representative for, and hold the Holders’ Holders Representative harmless against against, any lossLoss, liability or expense incurred without gross negligence, bad faith or willful misconduct, on the part of the Holders’ Representative and Holders Representative, arising out of or in connection with the acceptance or administration of the Holders’ Holders Representative’s carrying out its duties hereunderunder this Agreement or any Transaction Document, including the reasonable fees costs and expenses of successfully defending the Holders Representative against any legal claim or liability in respect thereof. The Holders Representative may consult with counsel retained of its own choice and as to any claims brought by the Holders’ Representative.
(f) At any time during Holders against the term of the Escrow Agreement, a majority-in-interest of Holders may, by written consent, appoint a new representative as the Holders’ Representative. Notice together The Holders Representative will have full and complete authorization and protection for any action taken and suffered by it in good faith or in accordance with a copy the opinion of the written consent appointing such new representative and bearing the signatures of Holders of a majority-in-interest of those Holders must be delivered to Buyer and, if applicable, the Escrow Agent not less than ten days prior to such appointment. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer and, if applicable, the Escrow Agent. For the purposes of this Section 9.10, a “majority-in-interest of the Holders” shall mean Holders representing in the aggregate over 50% of the percentage interests in the Escrow Propertycounsel.
(g) In the event that the Holders’ Representative becomes unable or unwilling to continue in its capacity as Holders’ Representative, or if the Holders’ Representative resigns as a Holders’ Representative, a majority-in-interest of the Holders shall use its reasonable best efforts, by written consent, to appoint a new representative as the Holders’ Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of the Holders of a majority-in-interest of the Holders must be delivered to Buyer and, if applicable, 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 Buyer and, if applicable, the Escrow Agent.
Appears in 1 contract