Holders Representative. (a) Each Holder hereby designates the Founder (solely in his capacity as the representative of the Holders, the “Holders’ Representative”) as his or her representative, attorney-in-fact and agent with full power and authority: (i) to execute and deliver the Transaction Documents and any documents or certificates required to be delivered pursuant to this Agreement or any of the Transaction Documents, and to agree to such amendments or modifications to this Agreement, any of the Transaction Documents and such other agreements, documents, instruments or certificates as the Holders’ Representative, in his sole discretion, determines to be desirable, in each case prior to the Closing Date or in connection with the consummation of the Transactions, the enforcement of rights under this Agreement or the defense of claims under this Agreement; (ii) to execute and deliver such amendments, waivers and consents in connection with this Agreement, the other Transaction Documents and the consummation of the Transactions as the Holders’ Representative, in his sole discretion, may deem necessary or desirable, including any amendments or modifications to this Agreement, in each case prior to the Closing Date or in connection with the consummation of the Transactions, the enforcement of rights under this Agreement or the defense of claims under this Agreement; (iii) to collect and receive all moneys and other proceeds and property payable to the Holders pursuant to this Agreement, and, subject to any applicable withholding retention Laws, to disburse and pay the same to each Holder in accordance with the terms of this Agreement; (iv) to enforce and protect the rights and interests of the Holders arising out of or under or in any manner relating to this Agreement, any of the other Transaction Documents and each other agreement, document, instrument or certificate referred to herein or therein or the Transactions, and to take any and all actions which the Holders’ Representative believes are necessary or appropriate under this Agreement and the other Transaction Documents for and on behalf of the Holders, including (but subject to Section 10.4 herein) asserting or pursuing any claim against the Acquiror or Parent, defending any Third-Party Claims or claims by any Acquiror Indemnified Party, consenting to, compromising or settling any such claims, and conducting negotiations with any Acquiror Indemnified Party or the Acquiror, Parent and their respective Representatives regarding such claims, and, in connection therewith, to (A) assert any claim or institute any action, proceeding or investigation, (B) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by the Acquiror or Parent or any other Person, or by any Governmental Authority against the Holders’ Representative or any or all of the Holders, and receive process on behalf of any or all of the Holders in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Holders’ Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to any such claim, action, proceeding or investigation, (C) file any proofs of debt, claims and petitions as the Holders’ Representative may deem advisable or necessary and (D) file and prosecute appeals from any decision, judgment or award rendered in any such action, proceeding or investigation (it being understood that the Holders’ Representative shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions); (v) to refrain from enforcing any right of the Holders or any of them and/or the Holders’ Representative arising out of or under or in any manner relating to this Agreement or the other Transaction Documents, or any other agreement, instrument or document in connection with the foregoing; provided, however, that no such failure to act on the part of the Holders’ Representative, except as otherwise provided in this Agreement or in any other Transaction Document, shall be deemed a waiver of any such right or interest by the Holders’ Representative or by such Holders unless such waiver is in writing signed by the waiving party or by the Holders’ Representative; (vi) to engage attorneys, accountants, financial advisors or such other third party service providers, and to otherwise incur such expenses, as the Holders’ Representative determines necessary or advisable in his sole discretion for the exercise of the Holders’ Representative’s rights and obligations hereunder (including in connection with indemnification claims pursuant to Article X or in connection with Section 2.8) and the other Transaction Documents (the fees and expenses of such activities are referred to herein as the “Holders’ Representative Expenses”); (vii) to give and receive any notice to be given by or to the Holders pursuant to this Agreement or in any other Transaction Document; and (viii) to make any payments or pay any expenses under or in connection with this Agreement or on behalf of the Holders. The foregoing grant of authority set forth in this Section 2.7(a) is a special power of attorney coupled with an interest, is irrevocable and shall survive the death or incompetence of any Holder. All decisions and actions by the Holders’ Representative in its capacity as the representative of the Holders pursuant to this Agreement or any other Transaction Documents shall be binding upon all Holders, and no Holder shall have the right to object, dissent, protest or otherwise contest the same. Notwithstanding the foregoing, nothing in this Section 2.7(a) shall authorize the Holders’ Representative (A) prior to the Closing, to approve on behalf of the Holders any amendment or waiver to the Acquiror LP Agreement which, following the Closing, would require approval of holders of Class E Units, Class G Interests or Class H Interests pursuant to the terms of the Acquiror LP Agreement, (B) following the Closing, to approve on behalf of Holders any amendment or waiver to the Acquiror LP Agreement or (C) to vote or dispose of, or to direct the voting or disposition of, any securities held by any Holder. (b) The Acquiror shall be entitled to rely on any and all actions taken by the Holders’ Representative without any liability to, or obligation to inquire of, or seek the consent of any Holder. (c) In connection with this Agreement and any instrument, agreement or document relating hereto, and in exercising or failing to exercise all or any of the powers conferred upon the Holders’ Representative by this power of attorney, coupled with an interest, (i) the Holders’ Representative shall incur no responsibility whatsoever to the Holders by reason of any error in judgment or other act or omission performed or omitted hereunder, excepting only responsibility for, any act or failure to act which represents gross negligence or willful misconduct and (ii) the Holders’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Holders’ Representative pursuant to such advice shall in no event subject the Holders’ Representative to liability to the Holders. The Holders shall severally and not jointly indemnify the Holders’ Representative and any other Holder serving on an advisory committee formed by the Holders’ Representative in connection with the performance of its responsibilities and hold the Holders’ Representative and any such Holder harmless against any Losses incurred without willful misconduct on the part of the Holders’ Representative arising out of or in connection with the acceptance or administration of its or his duties under this Agreement. (d) The Holders’ Representative may resign as the Holders’ Representative hereunder at any time and for any reason, effective upon a new representative (who may be an individual or entity) being appointed in writing by the current Holders’ Representative; provided, that if the Person serving as the Holders’ Representative dies or becomes incapable of performing the responsibilities of the Holders’ Representative hereunder or resigns, in each case, without so appointing a replacement Holders’ Representative, a substitute Holders’ Representative shall be appointed no later than ten (10) Business Days after such resignation by the Holders representing a majority of the Management Holdings Management Units (if the need for the Holders to appoint a substitute representative arises prior to the Closing) or by the Holders representing a majority of the outstanding Class E Units issued to all Holders at the Closing (if the need for the Holders to appoint a substitute representative arises on or after the Closing). The resigning Holders’ Representative or the Holders appointing such new representative shall provide notice to the Acquiror of the occurrence of the appointment of a new Holders’ Representative pursuant to this Section 2.7(d). (e) Each Holder agrees with the Holders’ Representative to bear, and promptly upon request reimburse the Holders’ Representative, for its pro rata portion of Holders’ Representative Expenses (which, for the avoidance of doubt, shall include a proportionate allocation of expenses incurred on behalf of Holding, Holding II and the Holders in connection with Section 2.8 or with any claim for indemnification pursuant to Section 10.2(a)) or Section 7.14), and of other expenses allocated to the Holders hereunder; provided, that the liability of each Holder pursuant to this sentence shall be limited to the value of vested and exchangeable Class E Units (other than any Exchange Restricted Units or Individual Exchange Restricted Units) held by such Holder (“Available Class E Units”), or to the proceeds of any disposition of Available Class E Units (or of Parent Common Stock issued in respect thereof).
Appears in 2 contracts
Sources: Contribution and Exchange Agreement, Contribution and Exchange Agreement (Evercore Partners Inc.)
Holders Representative. (a) Each Holder hereby designates consents to (i) the Founder (solely in his capacity appointment of GSO Capital Partners LP as the representative of the Holders, the “Holders’ Representative”) Representative hereunder and as his or her representative, the attorney-in-fact and agent with full power and authority:
(i) to execute and deliver the Transaction Documents and any documents or certificates required to be delivered pursuant to this Agreement or any of the Transaction Documents, and to agree to such amendments or modifications to this Agreement, any of the Transaction Documents and such other agreements, documents, instruments or certificates as the Holders’ Representative, in his sole discretion, determines to be desirable, in each case prior to the Closing Date or in connection with the consummation of the Transactions, the enforcement of rights under this Agreement or the defense of claims under this Agreement;
(ii) to execute and deliver such amendments, waivers and consents in connection with this Agreement, the other Transaction Documents and the consummation of the Transactions as the Holders’ Representative, in his sole discretion, may deem necessary or desirable, including any amendments or modifications to this Agreement, in each case prior to the Closing Date or in connection with the consummation of the Transactions, the enforcement of rights under this Agreement or the defense of claims under this Agreement;
(iii) to collect and receive all moneys and other proceeds and property payable to the Holders pursuant to this Agreement, and, subject to any applicable withholding retention Laws, to disburse and pay the same to each Holder in accordance with the terms of this Agreement;
(iv) to enforce and protect the rights and interests of the Holders arising out of or under or in any manner relating to this Agreement, any of the other Transaction Documents and each other agreement, document, instrument or certificate referred to herein or therein or the Transactions, and to take any and all actions which the Holders’ Representative believes are necessary or appropriate under this Agreement and the other Transaction Documents for and on behalf of the Holders, including (but subject to Section 10.4 herein) asserting or pursuing any claim against the Acquiror or Parent, defending any Third-Party Claims or claims by any Acquiror Indemnified Party, consenting to, compromising or settling any such claimsHolder, and conducting negotiations with any Acquiror Indemnified Party or (ii) the Acquiror, Parent and their respective Representatives regarding such claims, and, in connection therewith, to (A) assert any claim or institute any action, proceeding or investigation, (B) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by the Acquiror or Parent or any other Person, or by any Governmental Authority against the Holders’ Representative or any or all of the Holders, and receive process on behalf of any or all of the Holders in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Holders’ Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to any such claim, action, proceeding or investigation, (C) file any proofs of debt, claims and petitions as the Holders’ Representative may deem advisable or necessary and (D) file and prosecute appeals from any decision, judgment or award rendered in any such action, proceeding or investigation (it being understood that the Holders’ Representative shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions);
(v) to refrain from enforcing any right of the Holders or any of them and/or the Holders’ Representative arising out of or under or in any manner relating to this Agreement or the other Transaction Documents, or any other agreement, instrument or document in connection with the foregoing; provided, however, that no such failure to act on the part of the Holders’ Representative, except as otherwise provided in this Agreement or in any other Transaction Document, shall be deemed a waiver of any such right or interest taking by the Holders’ Representative of any and all actions and the making of any decisions required or by such Holders unless such waiver is in writing signed by permitted by, or with respect to this Agreement and the waiving party or by the Holders’ Representative;
transactions contemplated hereby, including, without limitation, (viA) to engage attorneys, accountants, financial advisors or such other third party service providers, and to otherwise incur such expenses, as the Holders’ Representative determines necessary or advisable in his sole discretion for the exercise of the Holders’ Representative’s rights power to agree to execute any consents under this Agreement and obligations hereunder (including B) to take all actions necessary in connection with indemnification claims pursuant to Article X or in connection with Section 2.8) the judgment of the Holders Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement and the other Transaction Documents (the fees and expenses of such activities are referred to herein as the “Holders’ Representative Expenses”);transactions contemplated hereby.
(viib) to give and receive any notice to Each Holder shall be given bound by or to the Holders pursuant to this Agreement or in any other Transaction Document; and
(viii) to make any payments or pay any expenses under or in connection with this Agreement or on behalf of the Holders. The foregoing grant of authority set forth in this Section 2.7(a) is a special power of attorney coupled with an interest, is irrevocable and shall survive the death or incompetence of any Holder. All decisions and actions taken by the Holders’ Representative in its capacity as exercising the representative of the Holders pursuant rights granted to it by this Agreement or any other Transaction Documents shall be binding upon all HoldersAgreement, and no Holder shall have the right to object, dissent, protest or otherwise contest the same. Notwithstanding the foregoing, nothing in this Section 2.7(a) shall authorize the Holders’ Representative (A) prior to the Closing, to approve on behalf of the Holders any amendment or waiver to the Acquiror LP Agreement which, following the Closing, would require approval of holders of Class E Units, Class G Interests or Class H Interests pursuant to the terms of the Acquiror LP Agreement, (B) following the Closing, to approve on behalf of Holders any amendment or waiver to the Acquiror LP Agreement or (C) to vote or dispose of, or to direct the voting or disposition of, any securities held by any Holder.
(b) The Acquiror Company shall be entitled to rely on any and all actions taken by such action or decision of the Holders’ Representative without any liability to, or obligation to inquire of, or seek the consent of any HolderRepresentative.
(c) In connection with this Agreement and any instrument, agreement or document relating hereto, and in exercising or failing to exercise all or any of the powers conferred upon the Holders’ Representative by this power of attorney, coupled with an interest, (i) If the Holders’ Representative shall incur no responsibility whatsoever resign or otherwise be unable to fulfill its responsibilities hereunder, the Holders by reason of any error in judgment or other act or omission performed or omitted hereunder, excepting only responsibility for, any act or failure to act which represents gross negligence or willful misconduct and (ii) the Holders’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Holders’ Representative pursuant to such advice shall in no event subject the Holders’ Representative to liability to the Holders. The Holders shall severally and not jointly indemnify the Holders’ Representative and any other Holder serving on an advisory committee formed by the Holders’ Representative in connection with the performance of its responsibilities and hold the Holders’ Representative and any such Holder harmless against any Losses incurred without willful misconduct on the part of the Holders’ Representative arising out of or in connection with the acceptance or administration of its or his duties under this Agreement.
(d) The Holders’ Representative may resign as the Holders’ Representative hereunder at any time and for any reason, effective upon a new representative (who may be an individual or entity) being appointed in writing by the current Holders’ Representative; provided, that if the Person serving as the Holders’ Representative dies or becomes incapable of performing the responsibilities of the Holders’ Representative hereunder or resigns, in each case, without so appointing a replacement Holders’ Representative, a substitute Holders’ Representative shall be appointed no later than ten (10) Business Days after such resignation by the Holders representing a majority of the Management Holdings Management Units (if the need for the Holders to appoint a substitute representative arises prior to the Closing) or by the Holders representing a majority of the outstanding Class E Units issued to all Holders at the Closing (if the need for the Holders to appoint a substitute representative arises on or after the Closing). The resigning Holders’ Representative or the Holders appointing such new representative shall provide notice to the Acquiror of the occurrence of the appointment of a new Holders’ Representative as soon as reasonably practicable by written consent of the Holders constituting the holders of a majority of the CVR Units issued pursuant to this Section 2.7(d).
(e) Each Holder agrees with Agreement, by sending notice and a copy of the duly executed written consent appointing such new Holders’ Representative to bear, and promptly upon request reimburse the Holders’ Representative, for its pro rata portion of Holders’ Representative Expenses Company. (which, for the avoidance of doubt, shall include a proportionate allocation of expenses incurred on behalf of Holding, Holding II and the Holders in connection with Section 2.8 or with any claim for indemnification pursuant to Section 10.2(aSignature page follows)) or Section 7.14), and of other expenses allocated to the Holders hereunder; provided, that the liability of each Holder pursuant to this sentence shall be limited to the value of vested and exchangeable Class E Units (other than any Exchange Restricted Units or Individual Exchange Restricted Units) held by such Holder (“Available Class E Units”), or to the proceeds of any disposition of Available Class E Units (or of Parent Common Stock issued in respect thereof).
Appears in 2 contracts
Sources: Preferred Equity Exchange and Discharge Agreement (Rentech, Inc.), Preferred Equity Exchange and Discharge Agreement (Blackstone Holdings I L.P.)
Holders Representative. (a) Each Holder hereby designates the Founder (solely in his capacity ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall act as the Stockholders' representative (the "Holders' Representative") for the purpose of the Holders, the “Holders’ Representative”) as his or her representative, attorney-in-fact and agent with full power and authority:
(i) to execute and deliver the Transaction Documents and any documents or certificates required to be delivered pursuant to this Agreement or any of the Transaction Documents, and to agree to such amendments or modifications to this Agreement, any of the Transaction Documents and such other agreements, documents, instruments or certificates as the Holders’ Representative, in his sole discretion, determines to be desirable, in each case prior to the Closing Date or in connection with the consummation of the Transactions, the enforcement of rights under this Agreement or the defense of claims under this Agreement;
(ii) to execute and deliver such amendments, waivers and consents in connection with this Agreement, the other Transaction Documents and the consummation of the Transactions as the Holders’ Representative, in his sole discretion, may deem necessary or desirable, including any amendments or modifications to this Agreement, in each case prior to the Closing Date or in connection with the consummation of the Transactions, the enforcement of rights under this Agreement or the defense of claims under this Agreement;
(iii) to collect and receive all moneys and other proceeds and property payable to the Holders pursuant to this Agreement, and, subject to any applicable withholding retention Laws, to disburse and pay the same to each Holder in accordance with the terms of this Agreement;
(iv) to enforce and protect the rights and interests of the Holders arising out of or under or in any manner relating to this Agreement, any of the other Transaction Documents and each other agreement, document, instrument or certificate referred to herein or therein or the Transactions, and to take any and all actions which the Holders’ Representative believes are necessary or appropriate under this Agreement and the other Transaction Documents for and settling on behalf of the Stockholders any indemnification claims made by Buyer Indemnified Party hereunder, and taking any other action that is specifically delegated to the Holders, including (but subject to ' Representative hereunder. Buyer shall give notice under Section 10.4 herein) asserting or pursuing 11.4 of any claim for indemnification against the Acquiror or Parent, defending any Third-Party Claims or claims by any Acquiror Indemnified Party, consenting to, compromising or settling any such claimsStockholders to the Stockholders and the Holders' Representative, and conducting negotiations with any Acquiror Indemnified Party only the Holders' Representative shall be empowered following such notice to respond to or the Acquiror, Parent and their respective Representatives regarding such claims, and, in connection therewith, to (A) assert any claim or institute any action, proceeding or investigation, (B) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by the Acquiror or Parent or take any other Person, or by any Governmental Authority against the Holders’ Representative or any or all of the Holders, and receive process on behalf of any or all of the Holders in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Holders’ Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to any such claim, action, proceeding or investigation, (C) file any proofs of debt, claims and petitions as the Holders’ Representative may deem advisable or necessary and (D) file and prosecute appeals from any decision, judgment or award rendered in any such action, proceeding or investigation (it being understood that the Holders’ Representative shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions);
(v) to refrain from enforcing any right of the Holders or any of them and/or the Holders’ Representative arising out of or under or in any manner relating to this Agreement or the other Transaction Documents, or any other agreement, instrument or document in connection with the foregoing; provided, however, that no such failure to act on the part of the Holders’ Representative, except as otherwise provided in this Agreement or in any other Transaction Document, shall be deemed a waiver of any such right or interest by the Holders’ Representative or by such Holders unless such waiver is in writing signed by the waiving party or by the Holders’ Representative;
(vi) to engage attorneys, accountants, financial advisors or such other third party service providers, and to otherwise incur such expenses, as the Holders’ Representative determines necessary or advisable in his sole discretion for the exercise of the Holders’ Representative’s rights and obligations hereunder (including in connection with indemnification claims pursuant to Article X or in connection with Section 2.8) and the other Transaction Documents (the fees and expenses of such activities are referred to herein as the “Holders’ Representative Expenses”);
(vii) to give and receive any notice to be given by or to the Holders pursuant to this Agreement or in any other Transaction Document; and
(viii) to make any payments or pay any expenses under or in connection with this Agreement or action on behalf of the HoldersStockholders with respect to the claim. The foregoing grant of authority set forth in this Section 2.7(a) is a special power of attorney coupled with an interest, is irrevocable and shall survive the death or incompetence of any Holder. All decisions and actions by the Holders’ Representative in its capacity as the representative of the Holders pursuant to this Agreement or any other Transaction Documents Stockholders shall be binding upon all Holders, and no Holder shall have the right to object, dissent, protest or otherwise contest the same. Notwithstanding the foregoing, nothing in this Section 2.7(a) shall authorize the Holders’ Representative (A) prior to the Closing, to approve on behalf of the Holders any amendment or waiver to the Acquiror LP Agreement which, following the Closing, would require approval of holders of Class E Units, Class G Interests or Class H Interests pursuant to the terms of the Acquiror LP Agreement, (B) following the Closing, to approve on behalf of Holders any amendment or waiver to the Acquiror LP Agreement or (C) to vote or dispose of, or to direct the voting or disposition of, any securities held bound by any Holder.
(b) The Acquiror shall be entitled to rely on any and all actions taken by the Holders’ ' Representative without on their behalf in accordance with this Agreement.
(b) Buyer shall be entitled to rely exclusively upon any liability to, communications or obligation writings given or executed by the Holders' Representative and shall not be liable in any manner whatsoever for any action taken or not taken in reliance upon the actions taken or not taken or communications or writings given or executed by the Holders' Representative. Buyer shall be entitled to inquire of, disregard any notices or seek communications given or made by the consent of any HolderStockholders unless given or made through the Holders' Representative.
(c) In connection with this Agreement and any instrument, agreement or document relating hereto, and in exercising or failing to exercise all or any the event of the powers conferred upon the Holders’ Representative by this power of attorney, coupled with an interest, (i) the Holders’ Representative shall incur no responsibility whatsoever to the Holders by reason of any error in judgment or other act or omission performed or omitted hereunder, excepting only responsibility for, any act or failure to act which represents gross negligence or willful misconduct and (ii) the Holders’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission death of the Holders’ ' Representative pursuant or his inability to such advice shall in no event subject perform his functions hereunder, the Holders’ Representative to liability Stockholders who immediately prior to the Holders. The Holders shall severally and not jointly indemnify the Holders’ Representative and any other Holder serving on an advisory committee formed by the Holders’ Representative in connection with the performance of its responsibilities and hold the Holders’ Representative and any such Holder harmless against any Losses incurred without willful misconduct on the part of the Holders’ Representative arising out of or in connection with the acceptance or administration of its or his duties under this Agreement.
(d) The Holders’ Representative may resign as the Holders’ Representative hereunder at any time and for any reason, effective upon a new representative (who may be an individual or entity) being appointed in writing by the current Holders’ Representative; provided, that if the Person serving as the Holders’ Representative dies or becomes incapable of performing the responsibilities of the Holders’ Representative hereunder or resigns, in each case, without so appointing a replacement Holders’ Representative, a substitute Holders’ Representative shall be appointed no later than ten (10) Business Days after such resignation by the Holders representing Closing owned a majority of the Management Holdings Management Units (if the need for the Holders to appoint a substitute representative arises prior to the Closing) or by the Holders representing a majority of the outstanding Class E Units issued to all Holders at the Closing (if the need for the Holders to appoint a substitute representative arises on or after the Closing). The resigning Seller Shares shall choose another Holders’ Representative or the Holders appointing such new representative shall provide notice to the Acquiror of the occurrence of the appointment of a new Holders’ Representative pursuant to this Section 2.7(d)' Representative.
(e) Each Holder agrees with the Holders’ Representative to bear, and promptly upon request reimburse the Holders’ Representative, for its pro rata portion of Holders’ Representative Expenses (which, for the avoidance of doubt, shall include a proportionate allocation of expenses incurred on behalf of Holding, Holding II and the Holders in connection with Section 2.8 or with any claim for indemnification pursuant to Section 10.2(a)) or Section 7.14), and of other expenses allocated to the Holders hereunder; provided, that the liability of each Holder pursuant to this sentence shall be limited to the value of vested and exchangeable Class E Units (other than any Exchange Restricted Units or Individual Exchange Restricted Units) held by such Holder (“Available Class E Units”), or to the proceeds of any disposition of Available Class E Units (or of Parent Common Stock issued in respect thereof).
Appears in 1 contract
Sources: Merger Agreement (Verticalnet Inc)
Holders Representative. (a) Each Holder Partnership Unitholder hereby designates consents to (i) the Founder (solely in his capacity appointment of GSO Capital Partners LP as the representative of the Holders, the “Holders’ Representative”) Representative hereunder and as his or her representative, the attorney-in-fact and agent with full power and authority:
(i) to execute and deliver the Transaction Documents and any documents or certificates required to be delivered pursuant to this Agreement or any of the Transaction Documents, and to agree to such amendments or modifications to this Agreement, any of the Transaction Documents and such other agreements, documents, instruments or certificates as the Holders’ Representative, in his sole discretion, determines to be desirable, in each case prior to the Closing Date or in connection with the consummation of the Transactions, the enforcement of rights under this Agreement or the defense of claims under this Agreement;
(ii) to execute and deliver such amendments, waivers and consents in connection with this Agreement, the other Transaction Documents and the consummation of the Transactions as the Holders’ Representative, in his sole discretion, may deem necessary or desirable, including any amendments or modifications to this Agreement, in each case prior to the Closing Date or in connection with the consummation of the Transactions, the enforcement of rights under this Agreement or the defense of claims under this Agreement;
(iii) to collect and receive all moneys and other proceeds and property payable to the Holders pursuant to this Agreement, and, subject to any applicable withholding retention Laws, to disburse and pay the same to each Holder in accordance with the terms of this Agreement;
(iv) to enforce and protect the rights and interests of the Holders arising out of or under or in any manner relating to this Agreement, any of the other Transaction Documents and each other agreement, document, instrument or certificate referred to herein or therein or the Transactions, and to take any and all actions which the Holders’ Representative believes are necessary or appropriate under this Agreement and the other Transaction Documents for and on behalf of the Holders, including (but subject to Section 10.4 herein) asserting or pursuing any claim against the Acquiror or Parent, defending any Third-Party Claims or claims by any Acquiror Indemnified Party, consenting to, compromising or settling any such claimsPartnership Unitholder, and conducting negotiations with any Acquiror Indemnified Party or (ii) the Acquiror, Parent and their respective Representatives regarding such claims, and, in connection therewith, to (A) assert any claim or institute any action, proceeding or investigation, (B) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by the Acquiror or Parent or any other Person, or by any Governmental Authority against the Holders’ Representative or any or all of the Holders, and receive process on behalf of any or all of the Holders in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Holders’ Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to any such claim, action, proceeding or investigation, (C) file any proofs of debt, claims and petitions as the Holders’ Representative may deem advisable or necessary and (D) file and prosecute appeals from any decision, judgment or award rendered in any such action, proceeding or investigation (it being understood that the Holders’ Representative shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions);
(v) to refrain from enforcing any right of the Holders or any of them and/or the Holders’ Representative arising out of or under or in any manner relating to this Agreement or the other Transaction Documents, or any other agreement, instrument or document in connection with the foregoing; provided, however, that no such failure to act on the part of the Holders’ Representative, except as otherwise provided in this Agreement or in any other Transaction Document, shall be deemed a waiver of any such right or interest taking by the Holders’ Representative of any and all actions and the making of any decisions required or by such Holders unless such waiver is in writing signed by permitted by, or with respect to this Agreement and the waiving party or by transactions contemplated hereby, including, without limitation, (A) the Holders’ Representative;
exercise of the power to agree to execute any consents under this Agreement and (viB) to engage attorneys, accountants, financial advisors or such other third party service providers, and to otherwise incur such expenses, as take all actions necessary in the judgment of the Holders’ Representative determines necessary or advisable in his sole discretion for the exercise accomplishment of the Holders’ Representative’s rights foregoing and obligations hereunder (including in connection with indemnification claims pursuant to Article X or in connection with Section 2.8) all of the other terms, conditions and limitations of this Agreement and the other Transaction Documents (the fees and expenses of such activities are referred to herein as the “Holders’ Representative Expenses”);transactions contemplated hereby.
(viib) to give and receive any notice to Each Partnership Unitholder shall be given bound by or to the Holders pursuant to this Agreement or in any other Transaction Document; and
(viii) to make any payments or pay any expenses under or in connection with this Agreement or on behalf of the Holders. The foregoing grant of authority set forth in this Section 2.7(a) is a special power of attorney coupled with an interest, is irrevocable and shall survive the death or incompetence of any Holder. All decisions and actions taken by the Holders’ Representative in its capacity as exercising the representative of the Holders pursuant rights granted to it by this Agreement or any other Transaction Documents shall be binding upon all HoldersAgreement, and no Holder shall have the right to object, dissent, protest or otherwise contest the same. Notwithstanding the foregoing, nothing in this Section 2.7(a) shall authorize the Holders’ Representative (A) prior to the Closing, to approve on behalf of the Holders any amendment or waiver to the Acquiror LP Agreement which, following the Closing, would require approval of holders of Class E Units, Class G Interests or Class H Interests pursuant to the terms of the Acquiror LP Agreement, (B) following the Closing, to approve on behalf of Holders any amendment or waiver to the Acquiror LP Agreement or (C) to vote or dispose of, or to direct the voting or disposition of, any securities held by any Holder.
(b) The Acquiror Partnership shall be entitled to rely on any and all actions taken by such action or decision of the Holders’ Representative without any liability to, or obligation to inquire of, or seek the consent of any HolderRepresentative.
(c) In connection with this Agreement and any instrument, agreement or document relating hereto, and in exercising or failing to exercise all or any of the powers conferred upon the Holders’ Representative by this power of attorney, coupled with an interest, (i) If the Holders’ Representative shall incur no responsibility whatsoever resign or otherwise be unable to the Holders by reason of any error in judgment or other act or omission performed or omitted fulfill its responsibilities hereunder, excepting only responsibility for, any act or failure to act which represents gross negligence or willful misconduct and (ii) the Partnership Unitholders shall appoint a new Holders’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission as soon as reasonably practicable by written consent of the Partnership Unitholders constituting the holders of a majority of the Common Units issued pursuant to the Exchange Agreement, by sending notice and a copy of the duly executed written consent to the Partnership appointing such new Holders’ Representative pursuant to such advice shall in no event subject the Holders’ Representative to liability to the Holders. The Holders shall severally and not jointly indemnify the Holders’ Representative and any other Holder serving on an advisory committee formed by the Holders’ Representative in connection with the performance of its responsibilities and hold the Holders’ Representative and any such Holder harmless against any Losses incurred without willful misconduct on the part of the Holders’ Representative arising out of or in connection with the acceptance or administration of its or his duties under this AgreementRepresentative.
(d) The Holders’ Representative may resign as the Holders’ Representative hereunder at any time and for any reason, effective upon a new representative (who may be an individual or entity) being appointed in writing by the current Holders’ Representative; provided, that if the Person serving as the Holders’ Representative dies or becomes incapable of performing the responsibilities of the Holders’ Representative hereunder or resigns, in each case, without so appointing a replacement Holders’ Representative, a substitute Holders’ Representative shall be appointed no later than ten (10) Business Days after such resignation by the Holders representing a majority of the Management Holdings Management Units (if the need for the Holders to appoint a substitute representative arises prior to the Closing) or by the Holders representing a majority of the outstanding Class E Units issued to all Holders at the Closing (if the need for the Holders to appoint a substitute representative arises on or after the Closing). The resigning Holders’ Representative or the Holders appointing such new representative shall provide notice to the Acquiror of the occurrence of the appointment of a new Holders’ Representative pursuant to this Section 2.7(d).
(e) Each Holder agrees with the Holders’ Representative to bear, and promptly upon request reimburse the Holders’ Representative, for its pro rata portion of Holders’ Representative Expenses (which, for the avoidance of doubt, shall include a proportionate allocation of expenses incurred on behalf of Holding, Holding II and the Holders in connection with Section 2.8 or with any claim for indemnification pursuant to Section 10.2(a)) or Section 7.14), and of other expenses allocated to the Holders hereunder; provided, that the liability of each Holder pursuant to this sentence shall be limited to the value of vested and exchangeable Class E Units (other than any Exchange Restricted Units or Individual Exchange Restricted Units) held by such Holder (“Available Class E Units”), or to the proceeds of any disposition of Available Class E Units (or of Parent Common Stock issued in respect thereof).[Signature pages follow]
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