Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby appoints P▇▇▇ ▇▇▇▇ as its representative and its true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative. (b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter. (c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (AgEagle Aerial Systems Inc.)
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Each Seller Investor Party hereby appoints P▇▇▇ ▇▇▇▇ as its representative and its true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder (and each other Seller Investor Party hereby irrevocably appoint pursuant to the Required Documentation shall thereby) appoints the Representative as their sole representative to act as the attorney-in-fact and agent for and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any Seller Parties to give and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting receive notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them communications in connection with this Agreement and the transactions contemplated hereby, to authorize and agree to adjustments to the Buyer Shares, the Cash Consideration, the Option Consideration, the Warrant Shares, the Earnout Shares and the Earnout Funds under Article 1 and other applicable provisions of this Agreement, to authorize distribution of the Escrow Shares, the Escrow Funds, the Adjustment Shares and the Adjustment Funds, to take all actions on behalf of the Seller Parties pursuant to this Agreement and any Ancillary Agreement to which any Seller Party is a party, and to take all actions necessary or appropriate in the transactions contemplated hereby judgment of the Representative for the accomplishment of the foregoing. More specifically, the Representative shall have the authority to make all decisions and thereby; determinations and to take all actions (viincluding giving Consents or agreeing to any amendments to this Agreement or any Ancillary Agreement to which it is a party or to the termination hereof or thereof) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (required or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval permitted hereunder on behalf of each such Seller (or such other Seller Party), and any such action, decision or determination so made or taken shall be deemed the action, decision or determination of them each such Seller (or such other Seller Party), and any notice, communication, document, certificate or information required (other than any notice required by Law or under the Company’s Organizational Documents) to be given to any Seller Party hereunder or pursuant to any Ancillary Agreement shall be deemed so given if given to the Representative. The Representative shall be authorized to take all actions on behalf of the Seller Parties in connection with any claims made under Articles 6 or 7 of this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, to defend or settle such claims, and to authorize payments in respect of such claims on behalf of the Seller Parties. The Representative may resign at any time upon 20 days prior notice. In the event the Representative has given notice of its intent to resign, the Seller Parties shall act as promptly (and no later than the agent for Sellereffective date of the Representative’s resignation) appoint a successor Representative, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser the following sentence. The Seller Parties may rely on such appointment and authority until remove or replace the receipt Representative by a vote of notice holders that own a majority of the appointment of a successor Company’s capital stock immediately prior to Closing upon two not less than ten (210) Business Days’ prior written notice to PurchaserBuyer. Purchaser may conclusively rely upon, without independent verification No bond will be required of the Representative. Notices or investigation, all decisions made by communications to or from the Representative in connection with this Agreement in writing and signed by Representativewill constitute notice to or from each of the Seller Parties.
(b) Neither The Representative nor any agent employed by Representative shall will not be liable to Sellerfor any act done or omitted hereunder as the Representative while acting in good faith and not in a manner constituting gross negligence or willful misconduct, and any Unitholder act done or any other Seller Investor Party relating omitted pursuant to the performance advice of Representative’s duties under this Agreement for counsel will be conclusive evidence of such good faith. The Seller Parties will indemnify the Representative and hold the Representative harmless against any errors in judgmentand all losses, negligenceliabilities, oversightdamages, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Partiesclaims, on a Pro Rata Share basispenalties, against all fines, forfeitures, actions, fees, costs and expenses incurred by (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the course acceptance or administration of performance of the Representative’s duties hereunder and lossesunder the agreements ancillary hereto, including costs of defense, paid in each case as such Representative Loss is suffered or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreementincurred; provided, howeverthat in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, that the Representative shall not be entitled to indemnification hereunder will reimburse the Seller Parties the amount of such indemnified Representative Loss to the extent it is finally determined attributable to such gross negligence or willful misconduct. If not paid directly to the Representative by a court of competent jurisdiction the Seller Parties, any such Representative Losses may be recovered by clear the Representative from (i) the amounts in the Escrow Funds at such time as remaining amounts would otherwise be distributable to the Seller Parties, and convincing evidence (ii) from any Earnout Funds at such time as any such amounts would otherwise be distributable to the Seller Parties; provided, that while this Section allows the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine paid from the Escrow Funds and the Earnout Funds, it does not relieve the Seller Parties from their obligation to have been furnished by promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the appropriate Person Representative from seeking any remedies available to it at Law or otherwise. In no event will the Representative be required to advance its own funds on behalf of the Seller Parties or otherwise. The Seller Parties acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Representative or the termination of this Agreement. For the avoidance of doubt, any restrictions or limitations on indemnities contained elsewhere in acting or refusing this Agreement are not intended to act in good faith on any matterbe applicable to the indemnities provided to the Representative under this Section 9.16(b).
(c) In the event that Representative resigns from its position as RepresentativeA decision, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all act, consent or instruction of the powerRepresentative will constitute a decision of all Seller Parties and will be final, authority binding and rights conferred conclusive upon each such Seller Party, and Buyer and Merger Sub may rely upon any such decision, act, consent or instruction of the Representative as being the decision, act, consent or instruction of each such Seller Party. Buyer Indemnitees are hereby relieved from any Adverse Consequences to any Person for any acts done by this Agreement upon such Buyer Indemnitees in accordance with such decision, act, consent or instruction of the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Representative. (a) Seller, each Unitholder and, upon execution Each Equityholder hereby irrevocably constitutes and delivery to Purchaser appoints Seller as the “Representative” for the purpose of performing and Parent of consummating the Acknowledgment and Joinder transactions contemplated by this Agreement, each other Seller Investor Party hereby and appoints P▇▇▇ ▇▇▇▇ the Representative as its representative the agent and its true and lawful attorney-in-in- fact and agentof such Equityholder, with full powers power of substitution and resubstitutionsubstitution, to act in its the name, place place, and steadstead of such Equityholder for purposes of executing any documents and taking, in or refraining from taking, any and all capacitiesactions the Representative determinates to be necessary, desirable, or appropriate in connection with this Agreement or the other Transaction Documents. The appointment of Seller as the Representative is coupled with an interest and all authority hereby conferred shall be irrevocable and the Representative is hereby authorized and directed to perform and consummate on behalf of the Equityholders all of the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by RepresentativeTransaction Documents.
(b) Neither Not by way of limiting the authority of the Representative, each and all of Equityholders, for themselves and their respective heirs, executors, administrators, successors and assigns, hereby authorize the Representative nor to:
(i) waive any agent employed provision of this Agreement which the Representative deems necessary or desirable; (ii) execute and deliver on behalf of the Equityholders all documents and instruments which may be executed and delivered pursuant to this Agreement and the Transaction Documents, including without limitation the Company Units and any transfer documentation with respect thereto; (iii) calculate, negotiate and agree to any adjustments to the Purchase Price; (iv) make and receive notices and other communications pursuant to this Agreement and service of process in any legal action or other proceeding arising out of or related to this Agreement or any of the transactions contemplated hereunder; (v) contest, negotiate, defend, compromise or settle any action, Claims or disputes arising out of or related to this Agreement or any of the transactions contemplated hereunder through counsel selected by the Representative shall be liable and solely at the cost, risk and expense of the Equityholders; (vi) satisfy any indemnification amounts owed pursuant to Sellerthe terms herein (vii) agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such indemnification obligations or actions, Claims or disputes; (viii) resolve any Unitholder actions, Claims or disputes arising from the Equityholders’ indemnification obligations hereunder; (ix) take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated hereby by arbitration, settlement or otherwise; (x) receive and distribute all or any portion of the Purchase Price or any other Seller Investor Party relating payment owing to the performance Equityholders hereunder in accordance with the terms herein or therein; (xi) appoint or provide for successor agents; (xii) select, retain, hire and consult with legal counsel, independent public accountants and other experts, solely at the cost and expense of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally Equityholders; (but not jointlyxiii) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and pay expenses incurred or which may be incurred by Representative in the course or on behalf of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred any Equityholder in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; providedand (xiv) take or forego any or all actions permitted or required of any Equityholder or necessary in the judgment of the Representative for the accomplishment of the foregoing and all of the other terms, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court conditions and limitations of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matterthis Agreement.
(c) Each Equityholder agrees that the Representative shall have no liability to the Equityholders for any act or omission by the Representative as permitted under this Section 9.16, excepting only actions taken in bad faith, and each Equityholder hereby irrevocably waives and releases any Claims it may have against the Representative for his acts and omissions hereunder other than any actions taken in bad faith.
(d) EACH EQUITYHOLDER UNDERSTANDS AND ACKNOWLEDGES THAT HE OR SHE IS: (A) AUTHORIZING THE REPRESENTATIVE TO ACT FOR THE EQUITYHOLDERS, COLLECTIVELY AND INDIVIDUALLY, WITH BROAD POWERS; AND (B) AGREEING THAT THE REPRESENTATIVE WILL NOT BE LIABLE TO THE EQUITYHOLDERS, COLLECTIVELY OR INDIVIDUALLY, UNLESS THE REPRESENTATIVE ACTS IN BAD FAITH. EACH EQUITYHOLDER FURTHER ACKNOWLEDGES THAT HE OR SHE HAS BEEN ADVISED TO SEEK INDEPENDENT AND SEPARATE COUNSEL PRIOR TO SIGNING THIS AGREEMENT AND HAS HAD THE OPPORTUNITY TO DO SO. (e) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred by failure or refusal of Seller to act as the Representative the Equityholders shall promptly appoint one of the Equityholders as their agent for purposes of this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this AgreementSection 9.16.
Appears in 1 contract
Representative. (a) SellerThe Representative may be removed at any time upon the written election of the Holders representing at least 75% of the aggregate Ownership Interests; provided that such Holders concurrently elect a replacement Representative and Parent is given prompt written notice of such replacement by the Representative (and such appointment is not binding on Parent until after Parent receives such written notice). By virtue of the execution of the Principal Equityholders Agreement by each Principal Equityholder, by the execution of the Option Cancellation Agreement by each Option Holder, by the execution of the Letter of Transmittal by each Holder and by the consummation of the transactions contemplated hereby, each Unitholder andHolder has constituted and hereby constitutes and appoints the Representative, upon execution and delivery to Purchaser and Parent including any replacement of the Acknowledgment and Joinder Agreementany such Representative, each other Seller Investor Party hereby appoints P▇▇▇ ▇▇▇▇ as its representative and its true and lawful attorney-in-fact and agent, with full powers power of substitution and resubstitution, in its name, place and stead, in authority to execute any and all capacities, in connection with the transactions contemplated by amendment or waiver of this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might any other document or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be instrument necessary or desirable, as determined by Representative, advisable in his sole discretion, in connection with order to carry out the amendment provisions of this Agreement, to give and receive notices and communications, to dispute any claim any Parent Indemnified Party with respect to indemnification hereunder, to agree to, negotiate, enter into settlements and compromises of, and to comply with orders of courts with respect to any dispute or waiver loss, and to take all actions necessary or appropriate in the judgment of any provision the Representative for the accomplishment of the foregoing. The Holders shall, pro-rata based upon their Ownership Interest, be responsible for the payment of all fees and expenses reasonably incurred by the Representative in performing its duties under this Agreement; (iii) accepting notices (includingprovided, without limitation, Notices of Claim) on their behalf; (iv) that Parent shall have no obligation or Liability arising from or relating to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement any claim or dispute between any Holder and the Escrow AgreementRepresentative under this Section 12.1 (and Parent’s rights, including Parent’s right to rely on the power to compromise any indemnity claim on their behalf; (v) executing actions and delivering, on behalf decisions of Seller, such Unitholder the Representative and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them rights under this Agreement Agreement) shall not be affected in any way thereby. All actions and decisions of the Escrow Agreement. As Representative may be relied upon by the representative under this Agreement Parent, the Company and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreementany third person, and Purchaser may rely on such appointment shall be binding and authority until the receipt of notice of the appointment of a successor conclusive upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representativeeach Shareholder.
(b) Neither Representative nor any agent employed by The Representative shall be liable entitled to Seller, any Unitholder or any other Seller Investor Party relating to recover from the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor PartiesPrincipal Equityholders, on a Pro Rata Share basispro-rata basis based upon the Principal Equityholder’s respective ownership interest in the Company Shares, against all costs any fees and expenses incurred by that the Representative may incur in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting his capacity as Representative such pursuant to this Agreement; provided. In that regard, however, that the Representative shall not be entitled to indemnification hereunder retain Five Hundred Thousand Dollars ($500,000) of the Closing Merger Consideration otherwise payable to the extent it is finally determined Principal Equityholders (the “Expense Funds”) as a reserve against the payment of expenses incurred in his capacity as the Representative, to be used by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished pay any expenses incurred by the appropriate Person and Representative in acting or refusing to act in good faith on any matter.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicablesuch capacity. Each successor Representative shall have all of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein The Expense Funds shall be deemed paid to include any successor Representative. “Majority-in-Interest” means Unitholders the Principal Equityholders at Closing for all purposes hereunder and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreementunder applicable Laws.
Appears in 1 contract
Representative. (a) SellerEach THL Entities hereby designates and appoints (and each Permitted Transferee of each such THL Entities is hereby deemed to have so designated and appointed) each of Anthony J. DiNovi, each Unitholder and, upon execution and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby appoints PScott Spe▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ld▇▇, ▇▇ ▇▇▇ ▇▇▇orney-▇▇-▇▇▇▇ ▇▇th full power of substitution for each of them (the "THL Entities' Representative"), to serve as its the representative of each such person to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such person and its true hereby acknowledges that the THL Entities' Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by each such person. Each such person further acknowledges that the foregoing appointment and lawful designation shall be deemed to be coupled with an interest and shall survive the death or incapacity of such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the other parties hereto to disregard any notice or other action taken by such person pursuant to this Agreement except for the THL Entities' Representative. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the THL Entities' Representative and are and will be entitled and authorized to give notices only to the THL Entities' Representative for any notice contemplated by this Agreement to be given to any such person. A successor to the THL Entities' Representative may be chosen by a majority in interest of the THL Entities' Shareholders, provided that notice thereof is given by the new THL Entities' Representative to the Company and to each Non-THL Shareholder.
(b) Each DLJ Entities hereby designates and appoints (and each Permitted Transferee of each such DLJ Entities' is hereby deemed to have so designated and appointed) DLJ Merchant Banking II, Inc., as his attorney-in-fact and agent, with full powers power of substitution and resubstitutionfor each of them (the "DLJ Entities' Representative"), in its nameto serve as the representative of each such person to perform all such acts (other than voting of shares of Common Stock) as are required, place and stead, in any and all capacities, in connection with the transactions authorized or contemplated by this Agreement to be performed by such person and hereby acknowledges that the Escrow AgreementDLJ Entities' Representative shall be the only person authorized to take any action so required, granting unto said authorized or contemplated by this Agreement by each such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the other parties hereto to disregard any notice or other action taken by such person pursuant to this Agreement except for the DLJ Entities' Representative. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the DLJ Entities' Representative and are and will be entitled and authorized to give notices only to the DLJ Entities' Representative for any notice contemplated by this Agreement to be given to any such person. A successor to the DLJ Entities' Representative may be chosen by a majority in interest of the DLJ Entities' Shareholders, provided that notice thereof is given by the new DLJ Entities' Representative to the Company and to each other DLJ Entity Shareholder.
(c) Each Merrill Lynch Entities hereb▇ ▇▇▇▇▇n▇▇▇▇ and appoints (and each Permitted Transferee of each such Merrill Lynch Entities is he▇▇▇▇ ▇▇e▇▇▇ ▇o have so designated and appointed) KECALP Inc., as his attorney-in-fact and agent, with full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act substitution for each of them with regard (the "Merrill Lynch Entities Repre▇▇▇▇▇▇▇v▇"), to matters pertaining serve as the representative of each such person to indemnification referred to in perform all such acts as are required, authorized or contemplated by this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed performed by such person and hereby acknowledges that the Merrill Lynch Entities Repre▇▇▇▇▇▇▇v▇ ▇▇▇ll be the only person authorized to take any of them in connection with action so required, authorized or contemplated by this Agreement by each such person. Each such person further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the Escrow death or incapacity of such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the other parties hereby to disregard any notice or other action taken by such person pursuant to this Agreement except for the Merrill Lynch Entities Repre▇▇▇▇▇▇▇v▇. ▇he other parties hereto are and will be entitled to rely on any action so taken or any notice given by the transactions Merrill Lynch Entities Repre▇▇▇▇▇▇▇v▇ ▇▇▇ are and will be entitled and authorized to give notices only to the Merrill Lynch Entities Repre▇▇▇▇▇▇▇v▇ ▇▇▇ any notice contemplated by this Agreement to be given to any such person. A successor to the Merrill Lynch Entities Repre▇▇▇▇▇▇▇v▇ ▇▇▇ be chosen by a majority in interest of the Merrill Lynch Entities' Shar▇▇▇▇▇▇▇s, ▇▇▇vided that notice thereof is given by the new Merrill Lynch Entities Repre▇▇▇▇▇▇▇v▇ ▇▇ the Company and to each other Merrill Lynch Entity Shareho▇▇▇▇.
(d) Each Management Shareholder hereby designates and thereby; appoints (viand each Permitted Transferee of each such Management Shareholder is hereby deemed to have so designated and appointed) to act Paul M. Meister, as his atto▇▇▇▇-▇▇-▇▇▇▇ ▇▇th full power of substitution for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly"Management Representative"), to contributeserve as the representative of each such person to perform all such acts as are required, in respect of any amounts paid (authorized or required contemplated by this Agreement to be paid) in settlement or compromise of performed by such matters, their pro rata portion of such amounts based on their Pro Rata Share); person and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and hereby acknowledges that the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Management Representative shall be liable the only person authorized to Sellertake any action so required, any Unitholder authorized or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred contemplated by this Agreement upon by each such person. Each such person further acknowledges that the initial Representatives foregoing appointment and the term “Representatives” herein designation shall be deemed to include be coupled with an interest and shall survive the death or incapacity of such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the other parties hereby to disregard any successor Representative. “Majority-in-Interest” means Unitholders and notice or other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid action taken by such person pursuant to this AgreementAgreement except for the Management Representative. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the Management Representative and are and will be entitled and authorized to give notices only to the Management Representative for any notice contemplated by this Agreement to be given to any such person. A successor to the Management Representative may be chosen by a majority in interest of the Management Shareholders, provided that notice thereof is given by the new Management Representative to the Company and to each other Management Shareholder.
Appears in 1 contract
Sources: Investors' Agreement (Donaldson Lufkin & Jenrette Inc /Ny/)
Representative. (a) SellerOaktree Capital Management, each Unitholder and, upon execution L.P. is hereby constituted and delivery to Purchaser and Parent appointed as the Representative. For purposes of the Acknowledgment and Joinder this Agreement, each other Seller Investor Party hereby appoints P▇▇▇ ▇▇▇▇ as its representative and its the term “Representative” shall mean the representative, true and lawful agent, proxy and attorney in fact of all Holders, with full power and authority on the Holders’ behalf
(i) to consummate the transactions contemplated herein, (ii) subject to the limitations set forth herein, to pay expenses incurred on behalf of the Holders (whether incurred on or after the date hereof) in connection with the negotiation and performance of this Agreement, (iii) to receive, give receipt and disburse any funds received hereunder on behalf of or to the Holders and to hold back from disbursement any such funds to the extent it reasonably determines may be necessary, (iv) to execute and deliver on behalf of the Holders all documents contemplated herein and any amendment or waiver hereto approved in accordance herewith, (v) subject to the limitations set forth herein, to take all other actions to be taken by or on behalf of the Holders in connection herewith, (vi) to, on behalf of the Holders in their capacity as such, negotiate, settle, compromise and otherwise handle all disputes under this Agreement, including, without limitation, disputes regarding Milestone Notice and Milestone Payment, and (vii) to give and receive notices on behalf of the Holders. Each Holder agreed, by virtue of the Confirmation Order, that (x) such Holder irrevocably granted unto the foregoing attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, agent full power and authority to do and perform each and every act and thing requisite and necessary or desirable to be done in connection with the transactions contemplated hereby and thereby by this Agreement, as fully to all intents and purposes as it the Holders might or could do in personperson and (y) such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Representative and shall survive the death, incapacity or bankruptcy of any Holder. Without limiting Any Person shall be entitled to (1) conclusively and absolutely rely, without inquiry, upon any actions of the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf acts of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and Holders hereunder in all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgmentagreement, negligence, oversight, breach of duty document or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred instrument contemplated by this Agreement upon and, without limiting the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties thatforegoing, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.and
Appears in 1 contract
Sources: Contingent Value Rights Agreement
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent By voting in favor of the Acknowledgment and Joinder adoption of this Agreement, each other Seller Investor Party hereby appoints P▇▇▇ ▇▇▇▇ as its representative the approval of the principal terms of the Merger, and its true the consummation of the Merger or participating in the Merger and lawful attorney-in-fact and agentreceiving the benefits thereof, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, including the right to receive the consideration payable in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, SellerMerger, each Unitholder Member shall be deemed to have approved the designation of, and each other Seller Investor Party hereby irrevocably appoint designates, Shareholder Representative Services LLC as the Representative as their sole representative to act as of the attorney-in-fact and agent and on behalf of each of them Closing for the all purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representativeagreements ancillary hereto.
(b) Neither The Representative nor will incur no liability of any agent employed by Representative shall be liable kind with respect to Seller, any Unitholder action or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless omission by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative Representative’s services pursuant to this Agreement; providedAgreement and any agreements ancillary hereto, however, that except in the event of liability directly resulting from the Representative’s gross negligence or willful misconduct. The Representative shall not be entitled liable for any action or omission pursuant to indemnification hereunder the advice of counsel. The Members will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Members the amount of such indemnified Representative Loss to the extent it is finally determined attributable to such gross negligence or willful misconduct. If not paid directly to the Representative by a court of competent jurisdiction the Members, any such Representative Losses may be recovered by clear the Representative from (i) the funds in the Expense Fund and convincing evidence (ii) any other funds that become payable to the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall Members under this Agreement at such time as such amounts would otherwise be protected in acting upon any noticedistributable to the Members; provided, statement or certificate believed by that while this section allows the Representative to be genuine and paid from the aforementioned sources of funds, this does not relieve the Members from their obligation to have been furnished by promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the appropriate Person and Representative from seeking any remedies available to it at law or otherwise. In no event will the Representative be required to advance its own funds on behalf of the Members or otherwise. Notwithstanding anything in acting this Agreement to the contrary, any restrictions or refusing limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Members set forth elsewhere in this Agreement are not intended to act in good faith on any matterbe applicable to the indemnities provided to the Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(c) In Upon the event that Representative resigns from its position as Closing, the Company will wire US$150,000 (the “Expense Fund”) to the Representative, a successor which will be used for the purposes of paying directly, or reimbursing the Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the powerfor, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid third party expenses pursuant to this AgreementAgreement and the agreements ancillary hereto. The Members will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative shall cause (at the Members’ expense) the disbursement of any remaining balance of the Expense Fund to the Members based on such Members’ pro rata portions thereof, except in the case of payments to employees or former employees of the Company for which employment tax withholding is required, which such amounts shall be delivered to GigCapital2 or the Surviving Company and paid through GigCapital2’s or Surviving Company’s payroll processing service or system. For tax purposes, the Expense Fund shall be treated as having been received and voluntarily set aside by the Members at the time of Closing. The parties agree that the Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund. [Signature Page Follows.]
Appears in 1 contract
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent of the Acknowledgment and Joinder By entering into this Agreement, each other Seller Investor Party hereby irrevocably authorizes and appoints P▇▇▇ ▇▇▇▇ Fortress as its representative the “Representative” for all purposes under this Agreement and its true as such Seller’s representative, agent and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and for all capacities, in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) agreements ancillary hereto, with full authority to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of, and to bind, each such Person for purposes of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement agreements ancillary hereto, and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each hereby accepts such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreementappointment; provided, however, that the Representative shall not have authority to amend, waive or otherwise modify the provisions of Section 11.4(a)(iii) hereof or to take any action described in Section 12.18. The Buyer shall be entitled to indemnification hereunder deal exclusively with the Representative on all such matters and 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 Seller by the extent it is finally determined Representative, and on any other action taken or purported to be taken on behalf of any Seller by a court of competent jurisdiction by clear and convincing evidence that the acts Representative, as being fully binding upon such Seller. Notices or omissions of Representative constituted willful misconduct communications to or fraud. from the Representative shall constitute notice to or from each of the Sellers. The provisions of this Section 12.17, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be protected in acting upon terminated by any noticeact of any one of the Sellers, statement or certificate believed by Representative to be genuine and to have been furnished operation of law, whether by the appropriate Person and in acting death or refusing to act in good faith on any matterother event.
(cb) The Representative may resign at any time, and may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Sellers according to each Seller’s pro rata share of equity interest in the Company as of the date thereof (the “Majority Holders”); provided, however, in no event shall the Representative resign or be removed without the Majority Holders having first appointed a new Representative who shall assume such duties immediately upon the resignation or removal of the prior Representative. In the event that Representative resigns from its position as of the death, incapacity, resignation or removal of the Representative, a successor new Representative shall be appointed by the vote or written consent of the Majority Holders. Notice of such vote or a Majority-in-Interest as promptly as practicable. Each successor copy of the written consent appointing such new Representative shall have all be sent to the Buyer, such appointment to be effective upon the later of the powerdate indicated in such consent or the date such notice is received by the Buyer; provided that until such notice is received, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein Buyer shall be deemed conclusively entitled to include any successor Representative. “Majority-in-Interest” means Unitholders rely on the decisions and other Seller Investor Parties that, collectively, receive not less than 50.1% actions of Purchase Price paid pursuant to this Agreementthe prior Representative as described in Section 12.17(a) above.
Appears in 1 contract
Sources: Development, Option and Stock Purchase Agreement (Fortress Biotech, Inc.)
Representative. (a) Seller, each Unitholder and, upon execution In addition to the other rights and delivery authority granted to Purchaser and Parent of the Acknowledgment and Joinder Representative elsewhere in this Agreement, each of the Surge Equityholders hereby to the fullest extent permitted by applicable Law, irrevocably constitutes and appoints the Representative as its true and lawful proxy, attorney, agent and representative to act (provided, however, that the Representative shall have no obligation to the Surge Equityholders to act other Seller Investor Party than as expressly provided herein), from and after the date hereof and to do any and all lawful things and execute and deliver any and all documents, for, in the name of and on behalf of such Surge Equityholder, and in such Surge Equityholder’s name, place and stead, that may be necessary, convenient or appropriate to facilitate the consummation of the transactions contemplated by this Agreement, including: (i) execution of the documents and certificates pursuant to this Agreement; (ii) receipt of payments under or pursuant to this Agreement and disbursement thereof, as contemplated by this Agreement; (iii) receipt and forwarding of notices and communications pursuant to this Agreement; (iv) administration of the provisions of this Agreement; (v) giving or agreeing to, on behalf of all or any of the Surge Equityholders, any and all consents, waivers, amendments or modifications deemed by the Representative, in his sole and absolute discretion, to be necessary or appropriate under this Agreement and the execution or delivery of any documents that may be necessary or appropriate in connection therewith; (vi) amending this Agreement or any of the instruments to be delivered to Motor or ParentCo pursuant to this Agreement; (vii) (A) disputing or refraining from disputing, on behalf of each Surge Equityholder relative to any Surge Merger Consideration to be received by such Surge Equityholder under this Agreement or any agreements contemplated hereby, any claim made by Motor or ParentCo under this Agreement or other agreements contemplated hereby, (B) negotiating and compromising, on behalf of each such Surge Equityholder, any dispute that may arise under, and exercising or refraining from exercising any remedies available under, this Agreement or any other agreement contemplated hereby appoints Pand (C) executing, on behalf of each such Surge Equityholder, any settlement agreement, release or other document with respect to such dispute or remedy; (viii) voting the Surge Equityholders’ shares of ParentCo Common Stock that are held in the Escrow Account at any meeting of ParentCo’s shareholders, provided that the Representative shall, without the prior written consent of ParentCo, vote such shares of ParentCo Common stock in the same proportion as the votes cast by all other shares voting on each particular matter at such meeting of ParentCo’s shareholders, and an irrevocable proxy with respect thereto is hereby granted, and (ix) engaging attorneys, accountants, agents or consultants on behalf of the Surge Equityholders in connection with this Agreement or any other agreement contemplated hereby and paying any fees related thereto. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Representative consistent herewith, shall to the fullest extent permitted by applicable Law, be absolutely and irrevocably binding on each Surge Equityholder as if such Surge Equityholder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Surge Equityholder’s individual capacity, and no Surge Equityholder shall have the right to object, dissent, protest or otherwise contest the same.
(b) Notwithstanding Section 4.20(a), in the event that the Representative is of the opinion that he requires further authorization or advice from the Surge Equityholders on any matters concerning this Agreement, the Representative shall be entitled to seek such further authorization or advice from the Surge Equityholders prior to acting on their behalf. In such event, each Surge Equityholder shall vote in accordance with the pro rata portion of the Surge Merger Consideration payable or paid to such Surge Unitholders in accordance with this Agreement and the authorization of Persons entitled to receive at least a majority of the Surge Merger Consideration shall, to the fullest extent permitted by applicable Law, be binding on all of the Surge Equityholders and shall constitute the authorization of the Surge Equityholders. The appointment of the Representative as each Surge Equityholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other person or persons to represent such Surge Equityholder with regard to the facilitation of the Transactions. The appointment of the Representative is coupled with an interest and shall, to the fullest extent permitted by applicable Law, be irrevocable by each Surge Equityholder in any manner or for any reason. The authority granted to the Representative by this Section 4.20 shall survive and shall not be affected by the death, illness, dissolution, disability, bankruptcy, incapacity or other inability to act of any Surge Equityholder pursuant to any applicable Law. ▇▇▇▇ ▇▇▇▇▇▇ hereby accepts his appointment as its representative the initial Representative.
(c) The Representative may resign from his position as Representative at any time by written notice delivered to ParentCo and its true and lawful attorney-in-fact and agentthe Surge Equityholders. If there is a vacancy at any time in the position of the Representative for any reason, with full powers of substitution and resubstitution, such vacancy shall be filled by a majority vote in its name, place and stead, in any and all capacities, in connection accordance with the transactions contemplated method set forth in Section 4.20(b).
(d) All acts of the Representative hereunder in his capacity as such shall, to the fullest extent permitted by this Agreement and the Escrow Agreementapplicable Law, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary be deemed to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and acts on behalf of each the Surge Equityholders and not of them the Representative individually. Other than as a result of willful misconduct by the Representative, the Representative shall not have any liability for any amount owed to Motor or ParentCo pursuant to this Agreement to the purposes of: (i) supervising fullest extent permitted by applicable Law. Other than as a result of willful misconduct by the Closing; (ii) taking any and all actions that may Representative, the Representative shall not be necessary liable to Surge, Motor, ParentCo or desirable, as determined by Representativethe Merger Subs, in his sole discretioncapacity as the Representative, in connection with the amendment for any liability of this Agreementa Surge Equityholder or otherwise, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents anything that he may do or certificates to be executed by any of them refrain from doing in connection with this Agreement to the fullest extent permitted by applicable Law. To the fullest extent permitted by applicable Law, the Representative shall not be liable to the Surge Equityholders, in his capacity as the Representative, for any liability of a Surge Equityholder or otherwise, or for any error of judgment, or any act done or step taken or omitted by him in good faith, or for any mistake in fact or Law, or for anything that he may do or refrain from doing in connection with this Agreement except in the case of the Representative’s willful misconduct. The Representative may seek the advice of legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or his duties hereunder, and he shall, to the fullest extent permitted by applicable Law, incur no liability in his capacity as the Representative to Motor, ParentCo either Merger Sub, Surge or the Surge Equityholders and be fully protected with respect to any action taken, omitted or suffered by him in good faith in accordance with the advice of such counsel. The Parties acknowledge and agree the Representative shall not by reason of this Agreement have a fiduciary relationship in respect of any Surge Equityholder, and the Escrow Agreement Parties acknowledge and agree that the Representative’s obligations under this Section 4.20 are solely as a representative of the Surge Equityholders and that the Representative shall, to the fullest extent permitted by applicable Law, have no personal responsibility or liability for any expenses, costs or other liabilities incurred by him in such capacity and the transactions contemplated hereby and thereby; Surge Unitholders (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their accordance with the pro rata portion of the Surge Merger Consideration payable or paid to such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Surge Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement), shall indemnify and Purchaser may rely on hold the Representative harmless in respect of all such appointment expenses, costs or other liabilities (absent the Representative’s willful misconduct), including the reasonable fees and authority until expenses of any legal counsel retained by the receipt Representative (it being understood by the Parties that the Representative shall be permitted to set off against the Representative Expense Fund in respect of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representativesuch amounts).
(be) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that The Representative shall not be entitled to indemnification hereunder any fee, commission or other compensation for the performance of his services hereunder, but shall be entitled to the extent it is finally determined payment from Surge of all his expenses reasonably incurred as the Representative. In connection with the foregoing, at or prior to the Closing, Surge shall transfer $175,000 (the “Representative Expense Fund”) to an account controlled by the Representative, to be used by the Representative solely to pay expenses incurred by him in his capacity as the Representative. Each Surge Equityholder shall pay to the Representative, on demand, such Surge Equityholder’s share (on a court pro rata basis, based on the pro rata portion of competent jurisdiction the Surge Merger Consideration paid to each Surge Equityholder in accordance with this Agreement) of all expenses incurred by clear and convincing evidence that the acts or omissions Representative in excess of the Representative constituted willful misconduct or fraudExpense Fund. Upon the release of the Escrow Account, the Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by distribute the appropriate Person and in acting or refusing to act in good faith on any matter.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all remaining unused portion of the powerRepresentative Expense Fund, authority and rights conferred if any, to Surviving Surge, by this Agreement upon wire transfer of immediately available funds to the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreementaccount(s) designated in writing by Surviving Surge.
Appears in 1 contract
Sources: Merger Agreement (Misonix Inc)
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby appoints PMich▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ as its representative ll, by virtue of the Merger and its true and lawful the resolutions to be adopted by the Shareholders, be irrevocably appointed attorney-in-fact and agentauthorized and empowered to act, for and on behalf of any or all of the Shareholders (with full powers power of substitution and resubstitution, in its name, place and stead, in any and all capacities, the premises) in connection with the transactions contemplated by this Agreement and indemnity provisions of Article 11 as they relate to the Shareholders generally, the Escrow Agreement, granting unto said the notice provision of this Agreement, and such other matters as are reasonably necessary for the consummation of the Transactions including, without limitation, to act as the representative of such Shareholders to review and authorize all set-offs, claims and other payments authorized or directed by the Escrow Agreement and dispute or question the accuracy thereof, to compromise on their behalf with Compuware any claims asserted thereunder and to authorize payments to be made with respect thereto and to take such further actions as are authorized in this Agreement (the above named representative, as well as any subsequent representative of such Shareholders appointed by him or, after his death or incapacity, elected by vote of holders of a majority of the shares Compuware Stock received by such Shareholders pursuant to the Merger, being referred to herein as the "Representative"). The Representative shall not be liable, in his capacity as representative of such Shareholders, to any Shareholders and their respective affiliates or any other person with respect to any action taken or omitted to be taken by the Representative under or in connection with this Agreement or the Escrow Agreement in his capacity as representative of such Shareholders unless such action or omission results from or arises out of fraud, gross negligence, willful misconduct or bad faith on the part of the Representative. Compuware and the Surviving Corporations and each of their respective affiliates shall be entitled to rely on such appointment and treat such Representative as the duly appointed attorney-in-fact of each Shareholder. Each Shareholder who votes in favor of the Merger pursuant to the terms hereof, by such vote, without any further action, and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done Shareholder who receives any shares of Compuware Stock in connection with the transactions contemplated hereby Merger, by acceptance thereof and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoingwithout any further action, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on confirms such appointment and authority until and acknowledges and agrees that such appointment is irrevocable and coupled with an interest, it being understood that the receipt willingness of notice of Compuware to enter into this Agreement is based, in part, on the appointment of a successor upon two (2) Business Days’ prior written notice representative to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, act on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason behalf of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matterShareholders.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent Each of the Acknowledgment and Joinder Agreement, each other Seller Investor Party Sellers hereby appoints P▇▇▇ ▇▇▇▇ as its representative ______________, his agent and its true and lawful attorney-in-fact and agentfact, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent Sellers’ representative (the “Representative”) for and on behalf of each the Sellers, to give and receive notices and communications, to authorize payment to Procera of them for Escrow Shares from the purposes Escrow Fund in satisfaction of claims by Procera, to object to such payments, to agree to, negotiate, enter into settlements and compromises of: , and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all other actions that are either (i) supervising necessary or appropriate in the Closing; judgment of the Representative for the accomplishment of the foregoing, or (ii) taking any and all actions that may be necessary or desirable, as determined specifically mandated by Representative, in his sole discretion, in connection with the amendment terms of this Agreement, or waiver of any provision in this Agreement; . Such agency may be changed by the Sellers from time to time upon not less than thirty (iii30) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ days prior written notice to PurchaserProcera; provided, however, that the Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. Purchaser Any vacancy in the position of Representative may conclusively rely uponbe filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Representative, without independent verification and the Representative shall not receive compensation for his services. Notices or investigationcommunications to or from the Representative shall constitute notice to or from the Sellers. The Escrow Agent shall have no duty to recognize a successor Representative, all decisions made by and shall incur no liability and shall be fully protected in failing to recognize the actions of the successor Representative, unless and until it has received written notice of the identity of such successor Representative in connection with this Agreement in writing and signed by as well as a specimen signature of such successor Representative.
(b) Neither Representative nor any agent employed by The Representative shall not be liable to Seller, for any Unitholder act done or any other Seller Investor Party relating omitted hereunder as the Representative while acting in good faith and in the exercise of reasonable judgment. The Sellers on whose behalf the Escrow Shares was contributed to the performance Escrow Fund shall indemnify the Representative and hold the Representative harmless against any loss, liability or expense incurred without negligence or bad faith on the part of the Representative and arising out of or in connection with the acceptance or administration of the Representative’s duties under this Agreement hereunder, including the reasonable fees and expenses of any legal counsel retained by the Representative. After all claims for losses by Procera have been satisfied, or reserved against, the Representative, with the consent of the majority in interest in the Escrow Fund, may recover from the Escrow Fund at the end of the Escrow Period, by Representative’s written request to the Escrow Agent, payments and reimbursement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in connection with the course of performance of Representative’s duties hereunder and losses, including costs representation of defense, paid or incurred the Sellers in connection with any action, suit, proceeding or claim this Escrow Agreement. The Escrow Agent may absolutely rely on such written request and shall have no duty to which Representative is made a party by reason determine the authority of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any mattermaking such request.
(c) In A decision, act, consent or instruction of the event that Representative resigns from its position as Representative, including but not limited to an amendment, extension or waiver of this Agreement pursuant to Section 16 hereof, shall constitute a successor Representative decision of the Sellers and shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all final, binding and conclusive upon the Sellers; and the Escrow Agent and Procera may rely upon any such decision, act, consent or instruction of the powerRepresentative as being the decision, authority act, consent or instruction of the Sellers. The Escrow Agent and rights conferred Procera are hereby relieved from any liability to any person for any acts done by this Agreement upon them in accordance with such decision, act, consent or instruction of the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent of the Acknowledgment and Joinder By executing this Agreement, each other Seller Investor Party hereby appoints P▇▇▇ ▇▇▇▇ of the TRA Parties shall be deemed to have irrevocably appointed the Representative as its representative agent and its true and lawful attorney-in-attorney in fact and agent, with full powers power of substitution to act from and resubstitution, in its name, place after the date hereof and stead, in to do any and all capacitiesthings and execute any and all documents on behalf of such TRA Parties which may be necessary, convenient or appropriate to facilitate any matters under this Agreement, including: (i) execution of the documents and certificates required pursuant to this Agreement; (ii) except to the extent provided in connection with this Agreement, receipt and forwarding of notices and communications pursuant to this Agreement; (iv) administration of the transactions contemplated provisions of this Agreement; (v) any and all consents, waivers, amendments or modifications deemed by the Representative to be necessary or appropriate under this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might execution or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf delivery of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions documents that may be necessary or desirable, as determined by Representative, in his sole discretion, appropriate in connection with therewith; (vi) taking actions the amendment Representative is authorized to take pursuant to the other provisions of this Agreement, or waiver of any provision in this Agreement; (iiivii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement negotiating and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and deliveringcompromising, on behalf of Seller, such Unitholder and such other Seller Investor PartyTRA Parties, any dispute that may arise under, and all noticesexercising or refraining from exercising any remedies available under, documents this Agreement and executing, on behalf of such TRA Parties, any settlement agreement, release or certificates other document with respect to be executed by any such dispute or remedy; and (viii) engaging attorneys, accountants, agents or consultants on behalf of them such TRA Parties in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of paying any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval fees related thereto on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor such TRA Parties, shall have authority subject to bind each reimbursement by such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by RepresentativeTRA Parties.
(b) Neither Representative nor If any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting unable, as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that PubCo in its reasonable discretion, to serve as the acts Representative or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by resigns as the appropriate Person and in acting or refusing to act in good faith on any matter.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest the TRA Parties who held (or whose predecessors held), as promptly as practicableof the date of the consummation of the IPO, the majority of the DM Units then held by all TRA Parties (or their predecessors), excluding in each case DM Units with respect to which Early Termination Payments have been made. Each successor Representative shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Representative and shall have all of the power, authority authority, rights and rights privileges conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor original Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Sources: Tax Receivable Agreement (Dynasty Financial Partners Inc.)
Representative. (a) SellerIn order to efficiently administer the transactions contemplated hereby, each Unitholder and, upon execution and delivery to Purchaser and Parent including (i) the determination of the Acknowledgment Final Closing Adjustment and Joinder the Adjusted Purchase Price, (ii) the waiver of any condition to the obligations of the Sellers to consummate the transactions contemplated hereby and (iii) the defense and/or settlement of any claims for which the Sellers may be required to indemnify the Buyer pursuant to this Agreement, each other Seller Investor Party the Sellers hereby appoints P▇▇▇ ▇▇▇▇ designate the Representative as its representative and its true and lawful their representative, attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither The Sellers hereby authorize the Representative nor any agent employed by Representative shall be liable (i) to Seller, any Unitholder or any other Seller Investor Party make all decisions relating to the performance determination of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders Final Closing Adjustment and the other Seller Investor PartiesAdjusted Purchase Price pursuant to Section 1.4, on a Pro Rata Share basis, against (ii) to take all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred action necessary in connection with the waiver of any action, suit, proceeding or claim condition to which Representative is made a party by reason the obligations of the fact that Representative was acting as Representative Company and the Sellers to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims for which the Sellers may be required to indemnify the Buyer pursuant to Article VII hereof, (iii) to give and receive all notices required to be given under the Agreement and (iv) to take any and all additional action as is contemplated to be taken by or on behalf of the Sellers by the terms of this Agreement; provided, howeverincluding the amendment hereof, that Representative shall not be entitled to indemnification hereunder to and/or the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matterEscrow Agreement.
(c) In the event that the Representative becomes unable to perform his responsibilities hereunder or resigns from its position as Representativesuch position, a successor Representative shall be appointed the Sellers (acting by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all the vote of the powerSellers who immediately prior to the Closing held at least a majority of the outstanding Company Shares) shall select another representative to fill the vacancy of the Representative initially chosen by the Sellers, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein such substituted representative shall be deemed to include be the Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(d) A decision, act, consent, instruction or action of the Representative, including any successor Representative. “Majority-in-Interest” means Unitholders agreement between the Representative and other Seller Investor Parties thatthe Buyer relating to the determination of the Final Closing Adjustment, collectively, receive not less than 50.1% of the Adjusted Purchase Price paid or the defense or settlement of any claims for which the Sellers may be required to indemnify the Buyer pursuant to Article VII hereof, shall constitute a decision, act, consent, instruction or action of all Sellers and shall be binding and conclusive upon each of such Sellers, and the Buyer and the Escrow Agent may rely upon any such decision, act, consent, instruction or action as being the decision, act, consent or instructions of each and every such Seller. The Buyer and the Escrow Agent are hereby relieved from any liability to any Seller for any acts done by them in accordance with such decision, act, consent, instruction or action of the Representative.
(e) By his, her or its execution of this Agreement, each Seller agrees that:
(i) the Buyer shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Final Closing Adjustment and the Adjusted Purchase Price, the settlement of any claims for indemnification by the Buyer pursuant to Article VII or any other actions required or permitted to be taken by the Representative hereunder, and no party shall have any cause of action against the Buyer for any action taken by the Buyer in reliance upon the instructions or decisions of the Representative;
(ii) no Seller shall have any cause of action against the Representative for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful breach of this Agreement by the Representative;
(iii) the provisions of this Section 1.7 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Seller may have in connection with the transactions contemplated by this Agreement;
(iv) remedies available at Law for any breach of the provisions of this Section 1.7 are inadequate; therefore, the Buyer shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if the Buyer brings an action to enforce the provisions of this Section 1.7; and
(v) the provisions of this Section 1.7 shall be binding upon the executors, heirs, legal representatives, personal representatives, successors and permitted assigns of each Seller, and any references in this Agreement to a Seller or the Sellers shall mean and include the successors to the Seller’s rights hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
Appears in 1 contract
Sources: Stock Purchase Agreement (Casella Waste Systems Inc)
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby appoints PMr. ▇▇▇▇ ▇▇▇▇ as its representative ll, by virtue of the Merger and its true and lawful the resolutions to be adopted by the Shareholders, be irrevocably appointed attorney-in-fact and agentauthorized and empowered to act, for and on behalf of any or all of the Shareholders (with full powers power of substitution and resubstitution, in its name, place and stead, in any and all capacities, the premises) in connection with the transactions contemplated by this Agreement and indemnity provisions of Article 11 as they relate to the Shareholders generally, the Escrow Agreement, granting unto said the notice provision of this Agreement, and such other matters as are reasonably necessary for the consummation of the Transactions including, without limitation, to act as the representative of such Shareholders to review and authorize all set-offs, claims and other payments authorized or directed by the -------------------------------------------------------------------------------- * Portions of this Exhibit have been deleted and filed separately with the Securities and Exchange Commission pursuant to the Company's request for confidential treatment pursuant to Rule 24b-2 promulgated under the Securities Exchange Act. Escrow Agreement and dispute or question the accuracy thereof, to compromise on their behalf with Jabil any claims asserted thereunder and to authorize payments to be made with respect thereto and to take such further actions as are authorized in this Agreement (the above named representative, as well as any subsequent representative of such Shareholders appointed by him or, after his death or incapacity, elected by vote of holders of a majority of the Jabil Shares received by such Shareholders pursuant to the Merger, being referred to herein as the "Representative"). The Representative shall not be liable, in his capacity as representative of such Shareholders, to any of the Shareholders and their respective affiliates or any other person with respect to any action taken or omitted to be taken by the Representative under or in connection with this Agreement or the Escrow Agreement in his capacity as representative of such Shareholders unless such action or omission results from or arises out of fraud, gross negligence, willful misconduct or bad faith on the part of the Representative. Jabil and the Surviving Corporation and each of their respective affiliates shall be entitled to rely on such appointment and treat such Representative as the duly appointed attorney-in-fact of each Shareholder. Each Shareholder who votes in favor of the Merger pursuant to the terms hereof, by such vote, without any further action, and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done Shareholder who receives any Jabil Shares in connection with the transactions contemplated hereby Merger, by acceptance thereof and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoingwithout any further action, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on confirms such appointment and authority until and acknowledges and agrees that such appointment is irrevocable and coupled with an interest, it being understood that the receipt willingness of notice of Jabil to enter into this Agreement is based, in part, on the appointment of a successor upon two (2) Business Days’ prior written notice representative to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, act on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason behalf of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matterShareholders.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Jabil Circuit Inc)
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent of the Acknowledgment and Joinder By executing this Agreement, each other Seller Investor Party hereby appoints P▇▇▇ ▇▇▇▇ of the Members shall be deemed to have irrevocably constituted and appointed [INSIGHT ENTITY] (in the capacity described in this Section 7.18 and each successor as provided below, the “Representative”) as his, her or its representative agent and its true and lawful attorney-in-attorney in fact and agent, with full powers power of substitution to act from and resubstitutionafter the date hereof and to do any and all things and execute any and all documents on behalf of such Members which may be necessary, convenient or appropriate to facilitate any matters under this Agreement, including but not limited to: (i) execution of the documents and certificates required pursuant to this Agreement; (ii) except to the extent specifically provided in this Agreement receipt and forwarding of notices and communications pursuant to this Agreement; (iv) administration of the provisions of this Agreement; (v) any and all consents, waivers, amendments or modifications deemed by the Representative, in its namesole and absolute discretion, place and stead, in any and all capacities, in connection with the transactions contemplated by to be necessary or appropriate under this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might execution or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf delivery of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions documents that may be necessary or desirable, as determined by Representative, in his sole discretion, appropriate in connection with therewith; (vi) amending this Agreement or any of the amendment of this Agreement, or waiver of any provision in instruments to be delivered to the Corporation pursuant to this Agreement; (iiivii) accepting notices (including, without limitation, Notices taking actions Representative is expressly authorized to take pursuant to the other provisions of Claim) on their behalfthis Agreement; (ivviii) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement negotiating and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and deliveringcompromising, on behalf of Seller, such Unitholder and such other Seller Investor PartyMembers, any dispute that may arise under, and all noticesexercising or refraining from exercising any remedies available under, documents this Agreement or certificates any other agreement contemplated hereby and executing, on behalf of such Members, any settlement agreement, release or other document with respect to be executed by any such dispute or remedy; and (ix) engaging attorneys, accountants, agents or consultants on behalf of them such Members in connection with this Agreement and the Escrow Agreement and the transactions or any other agreement contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of paying any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreementfees related thereto. As the representative under this Agreement and the Escrow Agreement, The Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor resign upon two (2) Business Days’ prior [[__] days’] written notice to Purchaserthe Corporation. Purchaser may conclusively rely uponIf the Representative is unable or unwilling to so serve, without independent verification or investigationthen the Members, all decisions made as applicable, holding a majority of the common units owned by such Members outstanding on the date hereof, shall elect a new Representative. All reasonable, documented out-of-pocket costs and expenses incurred by the Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative its capacity as such shall be liable to Sellerpromptly reimbursed by the Corporation upon invoice and reasonable support therefor by the Representative. To the fullest extent permitted by law, none of the Representative, any Unitholder of its Affiliates, or any of the Representative’s or Affiliate’s directors, officers, employees or other agents (each a “Covered Person”) shall be liable, responsible or accountable in damages or otherwise to any Member, the LLC or the Corporation for damages arising from any action taken or omitted to be taken by the Representative or any other Seller Investor Party relating Person with respect to the performance LLC or the Corporation, except in the case of Representative’s duties under this Agreement for any errors in judgmentaction or omission which constitutes, negligencewith respect to such Person, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason Each of the fact Covered Persons may consult with legal counsel, accountants, and other experts selected by it, and any act or omission suffered or taken by it on behalf of the LLC or the Corporation or in furtherance of the interests of the LLC or the Corporation in good faith in reliance upon and in accordance with the advice of such counsel, accountants, or other experts shall create a rebuttable presumption of the good faith and due care of such Covered Person with respect to such act or omission; provided that Representative was acting as Representative pursuant to this Agreement; providedsuch counsel, howeveraccountants, that Representative or other experts were selected with reasonable care. Each of the Covered Persons may rely in good faith upon, and shall not be entitled to indemnification hereunder have no liability to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that LLC, the acts Corporation or omissions of Representative constituted willful misconduct the Members for acting or fraud. Representative shall be protected in refraining from acting upon upon, any resolution, certificate, statement, instrument, opinion, report, notice, statement request, consent, order, bond, debenture, or certificate other paper or document reasonably believed by Representative it to be genuine and to have been furnished signed or presented by the appropriate Person and in acting proper party or refusing to act in good faith on any matterparties.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Representative. (a) SellerIn order to efficiently administer certain matters contemplated hereby following the Closing, each Unitholder andincluding any actions that the Representative may, upon execution in its sole discretion, determine to be necessary, desirable or appropriate in connection with the matters set forth in this Agreement, the Share Recipients, by the adoption of this Agreement and delivery acceptance of consideration under this Agreement, hereby designate and empower Shareholder Representative Services LLC as the Representative for all purposes in connection with this Agreement and the Lock-Up Agreements or any agreements ancillary hereto or thereto.
(b) In the event the Representative dies, becomes unable to Purchaser and Parent perform his, her or its responsibilities hereunder or resigns from such position, the Share Recipients, who together are entitled to a majority of the Acknowledgment Total Consideration at such time shall be authorized to and Joinder shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) By their adoption of this Agreement and acceptance of consideration under this Agreement, each other Seller Investor Party the Share Recipients hereby appoints P▇▇▇ ▇▇▇▇ as its representative and its agree, in addition to the foregoing, that:
(i) the Representative shall constitute the true and lawful representative, agent and attorney-in-fact and agent, of each Share Recipients with full powers power in his, her or its name and on his, her or its behalf to act according to the terms of substitution this Agreement and resubstitutionin general to do all things and to perform all acts including, without limitation, executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement. The Representative hereby accepts such appointment;
(ii) the Representative shall take any and all actions that it believes are necessary or appropriate under this Agreement for and on behalf of the Share Recipients;
(iii) the Representative shall have full authority to (A) execute, deliver, acknowledge, certify and file on behalf of the Share Recipients (in the name of any or all of the Share Recipients or otherwise) any and all documents that the Representative may, in its namesole discretion, place and steaddetermine to be necessary, desirable or appropriate, in such forms and containing such provisions as the Representative may, in its sole discretion, determine to be appropriate, (B) give and receive notices and other communications relating to this Agreement and the transactions contemplated hereby and thereby (except to the extent that this Agreement contemplates that such notice or communication shall be given or received by the Share Recipients individually), (C) take or refrain from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of or related to this Agreement and the transactions contemplated hereby and thereby and (D) engage attorneys, accountants, financial and other advisors, paying agents and other persons necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing;
(iv) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Representative as to any of the matters described in this Section 3.6, and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(v) all capacitiesactions, decisions and instructions of the Representative shall be conclusive and binding upon each of the Share Recipients and no Share Recipient shall have any cause of action against the Representative for any action taken, decision made or instruction given by the Representative in connection with this Agreement or the agreements, except as otherwise provided in this Section 3.6;
(vi) the provisions of this Section 3.6 are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Share Recipient may have in connection with the transactions contemplated by this Agreement;
(vii) the provisions of this Section 3.6 shall be binding upon the executors, heirs, legal representatives successors and assigns of each Share Recipient and any references in this Agreement to any Share Recipient (or them collectively) shall mean and include the Escrow successors to the Share Recipients’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and
(viii) the Representative shall have no duties or obligations hereunder, except those expressly set forth herein, and such duties and obligations shall be determined solely by the express provisions of this Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done .
(d) The Representative will incur no liability in connection with the transactions contemplated hereby and thereby as fully its services pursuant to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and any related agreements except to the Escrow Agreementextent resulting from its bad faith, including gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the power to compromise advice of counsel. The Share Recipients shall, severally, and not jointly, indemnify the Representative against any indemnity claim on their behalf; reasonable, documented, and out-of-pocket losses, liabilities and expenses (v“Representative Losses”) executing and delivering, on behalf arising out of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contributeany related agreements, in respect each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Share Recipients the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Share Recipients under this Agreement at such time as such amounts would otherwise be distributable to the Share Recipients; provided, that while the Representative may be paid (from the aforementioned sources of funds, this does not relieve the Share Recipients from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval advance its own funds on behalf of each of them under the Share Recipients or otherwise. Notwithstanding anything in this Agreement and to the Escrow Agreement. As contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the representative under recourse against non-parties otherwise applicable to, the Share Recipients set forth elsewhere in this Agreement and are not intended to be applicable to the Escrow Agreementindemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, resignation or removal of the Representative. Neither the Company nor Parent shall have authority any liability to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with the provision of such services under this Agreement in writing and signed by RepresentativeSection 3.6.
(be) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder On or any other Seller Investor Party relating prior to the performance of Closing Date, the Company will wire $[***] (the “Expense Fund”) to the Representative’s duties under this Agreement , which will be used for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by the Representative. The Share Recipients will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the course event of performance bankruptcy. As soon as practicable following the completion of the Representative’s duties hereunder responsibilities, the Representative shall cause (at the Share Recipients’ expense) the disbursement of any remaining balance of the Expense Fund to the Share Recipients based on such Share Recipients pro rata portions as set forth in Schedule 2 (Pre-Closing Statement), except in the case of payments to employees or former employees of the Company for which employment tax withholding is required, which such amounts shall be delivered to Parent or the Surviving Corporation and lossespaid through Parent’s or Surviving Corporation’s payroll processing service or system. For tax purposes, including costs the Expense Fund shall be treated as having been received and voluntarily set aside by the Share Recipients at the time of defense, paid Closing. The parties agree that the Representative is not responsible for any tax reporting or incurred withholding in connection with any action, suit, proceeding or claim to which Representative is made a party by reason the distribution of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matterExpense Fund.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Athenex, Inc.)
Representative. (a) Seller13.1. Notwithstanding any statement to the contrary contained herein, each Unitholder and, upon execution Holder irrevocably authorizes and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby appoints P▇. ▇▇ ▇▇▇▇ Lodge III or his/its successor appointed pursuant to this SECTION 13 (the "REPRESENTATIVE") as its representative and its true and lawful attorney-in-fact attorney and agent, representative with full powers of substitution power and resubstitution, authority to take any and all actions and execute any and all documents and agreements in its such Person's name, place and stead, in any and all capacitieswith the same effect as if such action were taken or such document or agreement were executed by such Person, in connection with the transactions contemplated by any matter or thing relating to any provision of this Agreement that states that the Representative shall act or execute and ▇. ▇▇▇▇▇ Lodge III hereby accepts his/its appointment as the Representative and agrees to perform all of the duties of the Representative hereunder.
13.2. The Representative cannot resign or be removed by the Holders, except upon delivery to the Company of a written instrument signed by the successor Representative in which the successor Representative agrees to serve as Representative and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority Holders consent thereto (such instrument being referred to do and perform each and every act and thing requisite and necessary as a "REPRESENTATIVE REPLACEMENT INSTRUMENT").
13.3. The signature of the Representative that purports to be done in connection with on behalf of one or more of the transactions contemplated hereby Holders shall be deemed to be the signature of such Holders and thereby they shall be bound by the terms of any documents and agreements executed and delivered by the Representative pursuant to this Agreement as fully though they were actual signatories thereto. The Company shall be entitled to rely, without any investigation or inquiry by the Company, upon all intents and purposes as it might or could do in person. Without limiting action by the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative having been taken upon the authority of such Holders. Any action by the Representative taken on behalf of the Holders shall be conclusively deemed to be the action of the Holders, and the Company shall not have any liability or responsibility to the Holders for any action taken in reliance thereon.
13.4. The appointment of the Representative hereunder is irrevocable and coupled with an interest and any action taken by the Representative pursuant to the authority granted in this SECTION 13 shall be effective and absolutely binding on each Holder, notwithstanding any contrary action of or direction from a Holder; and
13.5. As among the Holders, a Representative may resign at any time by giving notice to the Holders, and, if there does not exist any previously designated successor thereto, upon the appointment and qualification of a successor. A Representative may be discharged, and replaced by another person to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representativesuccessor, in his sole discretion, in connection accordance with SECTION 13.2.
(a) The Representative shall not be liable to the amendment Holders for any mistake of this Agreement, fact or waiver error of judgment or any acts or omissions of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) kind unless caused by his willful misconduct. The Representative shall be entitled to rely on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents instrument or certificates signature believed by him to be executed by genuine and may assume that any person purporting to give any writing, notice of them instrument in connection with this Agreement and is duly authorized to do so by the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severallyparty on whose behalf such writing, but not jointly, to contribute, in respect of any amounts paid (notice or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representativeinstruction is given.
(b) Neither The Holders, jointly and severally, shall indemnify the Representative nor any agent employed by Representative shall be liable to Sellerfor and hold the Representatives harmless against, any Unitholder loss, liability or any other Seller Investor Party relating to expense incurred by the Representative arising out of or in connection with the acceptance of, or the performance of Representative’s its duties under this Agreement for any errors in judgmentAgreement, negligence, oversight, breach of duty or otherwise except to as well as the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid defending against any claim or incurred in connection with liability arising under this Agreement or any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matterMerger Agreements.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent Each of the Acknowledgment and Joinder Agreement, each other Seller Investor Party Agreement Parties hereby appoints Pagrees that C. N▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall be appointed as its representative the Representative and its true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent for and on behalf of each Stockholder, and the taking by the Representative of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may and the making of any decisions required or permitted to be taken by the Representative under this Agreement or any Ancillary Agreement to which any Stockholder is a party, including the exercise of the power to (a) resolve any Disputed Items with respect to the Final Closing Statement (b) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts with respect to any indemnification claims, (c) resolve any indemnification claims, and (d) take all actions necessary or desirablein the judgment of the Representative for the accomplishment of the other terms, as determined by Representative, in his sole discretion, in connection with the amendment conditions and limitations of this Agreement, the Ancillary Agreements and any transactions contemplated herein and therein. The Representative shall no have authority to modify the allocation attached hereto as Annex A without written consent of J▇▇▇ ▇. ▇▇▇▇▇▇▇ (or waiver of any provision his estate representative.) Accordingly, and except as set forth in this Agreement; (iii) accepting notices (includingthe immediately preceding sentence, without limitation, Notices of Claim) on their behalf; (iv) the Representative has the authority and power to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, each Stockholder with respect to this Agreement or any and Ancillary Agreement to which any Stockholder is a party. Each Stockholder will be bound by all notices, documents or certificates to be executed actions taken by any of them the Representative in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or Parent shall only be required to acknowledge or act upon a written communication signed by the Representative. Such agency may be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and changed with respect to the Escrow Agreement. As Representative by the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice majority of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this AgreementStockholders represented thereby; provided, however, that the Representative may not be removed unless any such majority agrees to such removal and to the identity of the substituted agent. Notwithstanding the foregoing, the Representative may resign at any time by providing written notice of intent to resign to each Stockholder, which resignation shall be effective upon the earlier of (i) thirty (30) calendar days following delivery of such written notice or (ii) the appointment of a successor by the relevant majority. No bond shall be required of the Representative and the Representative shall not receive any compensation for its services. The Representative shall not be entitled to indemnification hereunder liable to the extent it is finally determined by a court Stockholders for any act done or omitted hereunder as the Representative while acting in good faith and in the exercise of competent jurisdiction by clear and convincing evidence that reasonable judgment, even if such act or omission constitutes negligence on the acts or omissions part of Representative constituted willful misconduct or fraudthe Representative. The Representative shall only have the duties expressly stated in this Agreement and shall have no other duty, express or implied. The Representative may engage attorneys, accountants and other professionals and experts. The Representative may in good faith rely conclusively upon information, reports, statements, advice and opinions prepared or presented by such professionals, and any action taken by the Representative based on such reliance shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and deemed conclusively to have been furnished by the appropriate Person and in acting or refusing to act taken in good faith and in the exercise of reasonable judgment. The Stockholders shall jointly and severally indemnify the Representative and hold the Representative harmless against any payment which by the terms of this Agreement is required to be made by the Representative (on any matter.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all behalf of the powerStockholders), authority and rights conferred against any loss, liability or expense incurred on the part of the Representative (so long as the Representative was acting in good faith in connection therewith) and arising out of or in connection with the acceptance or administration of the Representative's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Universal Business Payment Solutions Acquisition Corp)
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party The Company hereby appoints Pagrees that G▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ shall be appointed as its representative the Representative and its true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent for and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking Stockholder, and is hereby authorized to take any and all actions that may and make any and all decisions required or permitted to be taken by him under this Agreement or any Ancillary Agreement to which any Stockholder is a party, including the exercise of the power to (i) resolve any Dispute Notices with respect to the Final Closing Statement or any Earn-Out Statement, (ii) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts with respect to any indemnification claims, (iii) resolve any indemnification claims and (iv) take all actions necessary or desirablein the judgment of the Representative for the accomplishment of the other terms, as determined by Representative, in his sole discretion, in connection with the amendment conditions and limitations of this Agreement, or waiver of the Ancillary Agreements and any provision in this Agreement; (iii) accepting notices (includingtransactions contemplated herein and therein. Accordingly, without limitation, Notices of Claim) on their behalf; (iv) the Representative has the authority and power to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, each Stockholder with respect to this Agreement or any and Ancillary Agreement to which any Stockholder is a party. Each Stockholder will be bound by all notices, documents or certificates to be executed actions taken by any of them the Representative in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or Parent shall only be required to acknowledge or act upon a written communication signed by the Representative. Such agency may be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and changed with respect to the Escrow Agreement. As Representative by the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice majority of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this AgreementStockholders represented thereby; provided, however, that the Representative may not be removed unless any such majority agrees to such removal and to the identity of a substituted agent reasonably acceptable to Parent. Notwithstanding the foregoing, the Representative may resign at any time by providing written notice of his intent to resign to each Stockholder, which resignation shall be effective upon the earlier of (i) thirty (30) calendar days following delivery of such written notice or (ii) the appointment of a successor representative, reasonably acceptable to Parent, by the relevant majority. No bond shall be required of the Representative and the Representative shall not receive any compensation for its services. The Representative shall not be entitled to indemnification hereunder liable to the extent it is finally determined by a court Stockholders for any act done or omitted hereunder as the Representative while acting in good faith and in the exercise of competent jurisdiction by clear and convincing evidence that reasonable judgment, even if such act or omission constitutes negligence on the acts or omissions part of Representative constituted willful misconduct or fraudthe Representative. The Representative shall only have the duties expressly stated in this Agreement and shall have no other duty, express or implied. The Representative may engage attorneys, accountants and other professionals and experts and pay for such services by seeking reimbursement from the Stockholders. The Representative may in good faith rely conclusively upon information, reports, statements and opinions prepared or presented by such professionals, and any action taken by the Representative based on such reliance shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and deemed conclusively to have been furnished by the appropriate Person and in acting or refusing to act taken in good faith and in the exercise of reasonable judgment. The Stockholders shall jointly and severally indemnify the Representative and hold the Representative harmless against any loss, liability or expense incurred on any matter.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all part of the powerRepresentative (so long as the Representative was acting in good faith in connection therewith) and arising out of or in connection with the acceptance or administration of the Representative’s duties hereunder, authority including the reasonable fees and rights conferred expenses of any legal counsel retained by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Sources: Merger Agreement (JetPay Corp)
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Each Seller Investor Party hereby appoints P▇Brazos Equity ▇▇ ▇▇▇▇ , LLC as its representative representative, to act as Representative under and its true as contemplated by and lawful in connection with the Purchase Agreement and the Ancillary Agreements, including the Escrow Agreement. In furtherance thereof, each Seller agrees that Representative will act as agent and attorney-in-fact for each such Seller and agentthe other Seller Indemnifying Parties, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do represent each such Seller and perform the other Seller Indemnifying Parties, and the heirs, successors, and assigns of each and every act and thing requisite and necessary to be done in connection of them, with the transactions contemplated hereby and thereby as fully respect to all intents matters arising under the Purchase Agreement and purposes the Ancillary Agreements, including the Escrow Agreement but not including any Seller’s Noncompetition Agreement, if applicable (all provisions herein dealing with Representative’s right to act on behalf of a Seller under any Ancillary Agreements will not include such Seller’s Noncompetition Agreement, if applicable), and all actions taken by Representative under any such agreements will be binding upon each such Seller Indemnifying Party and the heirs, successors, and assigns of each of them, as it might if expressly ratified and confirmed in writing by each of them, and no Seller Indemnifying Party will have the right to object to, dissent from, protest, or could do in personotherwise contest the same. Without limiting the generality of the foregoing, SellerRepresentative will have full power and authority, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each Seller, and the heirs, successors, and assigns of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard them, to matters pertaining to indemnification referred to in this interpret the terms and provisions of the Purchase Agreement and the Ancillary Agreements, including the Escrow Agreement, including to amend the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Purchase Agreement and the Escrow any Ancillary Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each Seller to the extent such party’s rights are not adversely effected thereby, to give and receive notices on behalf of them such Seller, to dispute or fail to dispute any claim under this the Purchase Agreement and and/or the Escrow Agreement and/or any other Ancillary Agreement. As , including any claim for indemnification under Section 6.2 or Article VIII of the representative under this Purchase Agreement and and/or the terms of the Escrow Agreement, Representative shall act as to negotiate and compromise any dispute that may arise under the agent Purchase Agreement and/or the Escrow Agreement and/or any other Ancillary Agreement, including any claim for Sellerindemnification under Section 6.2 or Article VIII of the Purchase Agreement and/or the terms of the Escrow Agreement, all Unitholders to sign any release or other documents with respect to any such dispute or claim, to appoint a successor Representative, and to make any and all other decisions and determinations relating to rights and obligations of any or all Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until Indemnifying Parties under the receipt of notice of Purchase Agreement and/or the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Escrow Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or and/or any other Ancillary Agreement. A Seller Investor Indemnifying Party relating will be deemed a party or a signatory to the performance of Representative’s duties under this Agreement any agreement, document, instrument, or certificate for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; providedsigns on behalf of, howeveror with respect to, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any mattersuch Seller Indemnifying Party.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Each Seller Investor Party hereby appoints P▇▇▇ ▇▇▇▇ as its representative and its true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent for and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any Sellers to give and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting receive notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them communications in connection with this Agreement and the Escrow transactions contemplated hereby, to authorize and agree to adjustments to the Cash Payment and each Earnout Amount under Article 1 and other applicable provisions of this Agreement, to authorize distribution of the Amount, to take all actions on behalf of Sellers pursuant to this Agreement and any Ancillary Agreement to which such Seller is a party, and to take all actions necessary or appropriate in the transactions contemplated hereby judgment of the Representative for the accomplishment of the foregoing. More specifically, the Representative shall have the authority to make all decisions and thereby; determinations and to take all actions (viincluding giving Consents or agreeing to any amendments to this Agreement or any Ancillary Agreement to which it is a party or to the termination hereof or thereof) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (required or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval permitted hereunder on behalf of each such Seller, and any such action, decision or determination so made or taken shall be deemed the action, decision or determination of them each such Seller, and any notice, communication, document, certificate or information required (other than any notice required by Law or under this the Company’s Organizational Documents) to be given to any Seller hereunder or pursuant to any Ancillary Agreement and shall be deemed so given if given to the Escrow AgreementRepresentative. As Without limiting the representative under this Agreement and generality of the Escrow Agreementforegoing, the Representative shall act as be authorized, in connection with the agent for SellerClosing, to execute all Unitholders certificates, documents and agreements on behalf of and in the name of Sellers necessary to effectuate the Closing and related transactions. The Representative shall be authorized to take all other Seller Investor Parties, shall have authority to bind each such Person actions on behalf of the Sellers in accordance connection with any claims made under Articles 6 or 7 of this Agreement, to defend or settle such claims, and Purchaser to make payments in respect of such claims on behalf of Sellers. The Sellers may rely on such appointment and authority until remove or replace the receipt Representative by a vote of notice holders that own a majority of the appointment of a successor Company’s common stock immediately prior to Closing upon two not less than ten (210) Business Days’ prior written notice to PurchaserBuyer. Purchaser may conclusively rely uponNo bond will be required of the Representative, without independent verification and the Representative will receive no compensation for its services. Notices or investigation, all decisions made by communications to or from the Representative in connection with this Agreement in writing and signed by Representativewill constitute notice to or from each of Sellers.
(b) Neither Representative nor any agent employed by Representative Each Seller hereby acknowledges and agrees that the Seller Expense Reserve Amount shall be liable withheld and paid directly to Selleran account maintained by the Representative (or a financial institution selected by the Representative) as a fund for the fees and expenses (including, without limitation, any Unitholder or any other Seller Investor Party relating to legal fees and expenses) of the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with this Agreement, with any action, suit, proceeding or claim to which Representative is made a party by reason balance of the fact that Representative was acting as Representative pursuant Seller Expense Reserve Amount not utilized for such purposes to this Agreementbe returned to the Sellers in accordance with their Pro Rata Percentage; provided, however, that in no event shall any portion of the Seller Expense Reserve Amount be returned to the Sellers prior to the final determination of the Final Cash Payment pursuant to Section 1.5 and the full payment of the amount owed by the Representative to Buyer, if any, pursuant to Section 1.4(d)(i). If the Seller Expense Reserve Amount shall be insufficient to satisfy the fees and expenses of the Representative, and if there are any remaining funds in the Escrow Amount to be distributed to the Sellers immediately prior to the final distribution from the Escrow Amount to the Sellers pursuant to the Escrow Agreement, then the Representative shall not be entitled to indemnification hereunder recover any such expenses from the Escrow Amount to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that such funds prior to the acts or omissions distribution of Representative constituted willful misconduct or fraudfunds to the Sellers. The Representative shall be protected in acting upon entitled to recover any notice, statement or certificate believed by Representative to be genuine and to have been furnished by remaining expenses directly from the appropriate Person and in acting or refusing to act in good faith on any matterSellers.
(c) In The Representative will not be liable for any act done or omitted hereunder as the event that Representative resigns from its position as Representativewhile acting in good faith and not in a manner constituting gross negligence or willful misconduct, a successor and any act done or omitted pursuant to the advice of counsel will be conclusive evidence of such good faith. Sellers will severally indemnify the Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor and hold the Representative shall have all harmless against any Adverse Consequences incurred without gross negligence or willful misconduct on the part of the powerRepresentative and arising out of or in connection with the acceptance or administration of the Representative’s duties hereunder.
(d) A decision, authority act, consent or instruction of the Representative will constitute a decision of all Sellers and rights conferred will be final, binding and conclusive upon each such Seller, and Buyer may rely upon any such decision, act, consent or instruction of the Representative as being the decision, act, consent or instruction of each such Seller. Buyer Indemnitees are hereby relieved from any Adverse Consequences to any Person for any acts done by this Agreement upon such Buyer Indemnitees in accordance with such decision, act, consent or instruction of the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Representative. (a) SellerSubject to the terms and conditions of this Section 14.16, each Unitholder and, upon execution and delivery to Purchaser and Parent AQ Seller is designated as the representative of the Acknowledgment Sellers (such Person, when acting in such capacity, the “Representative”), to serve, and Joinder the Purchaser hereby acknowledges that the Representative shall serve, as the sole representative of the Sellers, from and after the Closing Date, with respect to the matters set forth in this Agreement and the Escrow and Paying Agent Agreement and any other document or agreement contemplated thereby or thereby, such service to be without compensation except for the reimbursement of out of pocket expenses and indemnification specifically provided herein. The Representative has accepted such designation as of the date hereof; provided, however, that the Representative shall have no obligation to act on behalf of the Sellers. The Representative will, at all times, be entitled to rely on any directions received from the Sellers; provided, however, that the Representative shall not be required to follow any such direction and shall be under no obligation to take any action in its capacity as Representative based upon any such direction. Notwithstanding anything to the contrary contained in this Agreement or the Escrow and Paying Agent Agreement, each the Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Seller shall otherwise exist against the Representative. The relationship created herein is not to be construed as a joint venture or any form of partnership between or among the Representative or any other Seller Investor Party hereby appoints P▇▇▇ ▇▇▇▇ or the Purchaser for any purpose of U.S. federal or state law, including federal or state income Tax purposes. Neither the Representative nor any of its Affiliates owes any fiduciary or other duty to any other Seller.
(b) Effective as its representative of the Closing Date, the Representative shall be the agent, proxy and its true and lawful attorney-in-fact for each Seller for all purposes of this Agreement, including full power and agentauthority: (i) to take all actions that the Representative considers necessary or desirable in connection with the defense, pursuit, negotiation or settlement of any determinations relating to the payment or determination of the Purchaser Adjustment Amount or the Seller Adjustment Amount and to s▇▇, defend, negotiate, settle and compromise any claims made by or against, and other disputes with, the Purchaser or any other Purchaser Indemnified Party pursuant to this Agreement, the Escrow and Paying Agent Agreement or any of the agreements, instruments, documents or transactions contemplated hereby or executed in connection herewith, (ii) to engage and employ agents and representatives (including accountants, legal counsel and other professionals) and to incur such other expenses as the Representative shall deem necessary or prudent in connection with full powers the administration of substitution the foregoing, (iii) to provide for all expenses incurred in connection with the administration of the foregoing and resubstitutionto be reimbursed for such expenses from the Representative Expense Holdback Amount, (iv) to disburse, or cause to be disbursed, to the Sellers any funds received (including by the Paying Agent) on behalf of the Sellers under this Agreement, (v) to receive, hold and manage the Representative Expense Holdback Amount to pay amounts pursuant to Section 14.16(f), (vi) to take all other actions and exercise all other rights which the Representative in its namesole discretion considers necessary or appropriate in connection with this Agreement or the Escrow and Paying Agent Agreement, place including execution and steaddelivery of the Escrow and Paying Agent Agreement, and any amendment or waiver to this Agreement or the Escrow and Paying Agent Agreement, and the other agreements, instruments and documents contemplated hereby or executed in connection herewith. All decisions and acts by the Representative shall be binding upon all Sellers, and no Seller shall have the right to object, dissent, protest or otherwise contest the same.
(c) In the event that any Person authorized hereunder as part of the Representative shall die, become incapacitated, resign or otherwise fail to act on behalf of the Sellers for any reason, the Representative shall include such other Person as shall be acceptable to the continuing representative, and such substituted representative, together with the continuing representative, together shall be deemed to be the Representative for all purposes of this Agreement.
(d) The Representative is authorized to act on behalf of the Sellers notwithstanding any dispute or disagreement among the Sellers, and the other parties hereto shall be entitled to rely on any and all capacitiesaction taken by the Representative without any liability to, in connection with or obligation to inquire of, any Seller even if such party shall be aware of any actual or potential dispute or disagreement among the Sellers. Each of the other parties hereto is expressly authorized to rely on the genuineness of the signature of the Representative and, upon receipt of any writing which reasonably appears to have been signed by the Representative, the other parties hereto may act upon the same without any further duty of inquiry as to the genuineness of the writing.
(e) Neither the Representative nor any of its members, partners, managers, officers, agents or other representatives or Affiliates shall incur any liability to any Seller by virtue of the failure or refusal of such Persons for any reason to consummate the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to the performance of their duties hereunder. Neither the Representative nor any of its members, partners, managers, officers, agents or other representatives or Affiliates shall be liable to any Seller relating to the performance of the Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise otherwise, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts actions taken or omissions of not taken by the Representative constituted gross negligence or willful misconduct or fraudmisconduct. The Representative and its members, managers, officers, agents and other representatives shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, Sellers against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, Losses paid or incurred in connection with any action, suit, proceeding or claim to which Representative any of such Persons is made a party by reason of the fact that Representative it was acting as the Representative pursuant to this Agreement; provided, however, that the Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by in a court of competent jurisdiction by clear and convincing evidence that the acts actions taken or omissions of not taken by the Representative constituted gross negligence or willful misconduct misconduct. For the avoidance of doubt, the indemnification contemplated by this Section 14.16(e) shall not subject to any of the survival or fraudother limitation or exclusive remedy provisions of ARTICLE XI.
(f) Any amount owing to the Representative from any Seller pursuant to this Section 14.16 shall be deductible at the option of the Representative from the next succeeding distribution(s), if any, of the Escrow Amount, as applicable, by the Escrow Agent to, or for the benefit of, such Seller. The Representative shall be protected in acting upon any notice, statement or certificate believed by Representative him to be genuine and to have been furnished by the appropriate Person person and in acting or refusing to act in good faith on or any matter.
(cg) In The Purchaser shall pay the event Representative Expense Holdback Amount to the Paying Agent pursuant to Section 1.04(c), for the benefit of and further distribution to the Representative. The Representative shall receive, hold and manage the Representative Expense Holdback Amount, which amount shall be available to reimburse the Representative for any expenses incurred or anticipated to be incurred by the Representative arising out of or in connection with the exercise of the Representative’s powers and authority hereunder, including the payment of reasonable fees and expenses of any legal counsel retained by the Representative. Following the Escrow Termination Date and upon final resolution of all proper claims pursuant to ARTICLE XI and Section 13.05(a) or otherwise related to the Agreement and the terms and conditions of the Escrow and Paying Agent Agreement and full reimbursement of all Losses of the Representative pursuant to Section 14.16(e), the Representative shall distribute or cause to be distributed any remaining portion that Representative resigns has not been released from its position as Representativethe Escrow Account to the Paying Agent, a successor for the benefit of and further distribution to each Seller in accordance with such Seller’s Allocation Percentage.
(h) The appointment of the Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative deemed coupled with an interest and shall have all be irrevocable, and the Purchaser and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed Representative in all matters referred to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreementherein.
Appears in 1 contract
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent Each of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby Sellers irrevocably appoints P▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the “Representative”) with power of designation and assignment as its representative and his, her or its true and lawful attorney-in-fact and agent, agent with full power of substitution, to act solely and exclusively on behalf of, and in the name of, such Seller with the full power, without the consent of such Seller, to exercise as the Representative deems appropriate, the powers which such Seller could exercise under the provisions of substitution this Agreement, the Non-Oak Sellers Indemnity Escrow Agreement or the Oak Indemnity Escrow Agreement and resubstitution, to take all actions necessary or appropriate in its name, place and stead, in any and all capacities, the judgment of the Representative in connection with this Agreement, the transactions contemplated by this Non-Oak Sellers Indemnity Escrow Agreement and the Oak Indemnity Escrow Agreement, granting unto said attorney-in-fact and agent, full which shall include the power and authority to do and perform each and every act and thing requisite and necessary to be done in connection amend, modify, waive or provide consent with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoingrespect to, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment provision of this Agreement, the Non-Oak Sellers Indemnity Escrow Agreement or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this the Oak Indemnity Escrow Agreement and the Escrow Agreementto execute, including the power to compromise any indemnity claim on their behalf; (v) executing deliver and delivering, on behalf of Seller, accept such Unitholder waivers and such other Seller Investor Party, consents and any and all notices, documents documents, certificates or certificates other papers to be executed by any of them delivered in connection with this Agreement and Agreement, the Non-Oak Sellers Indemnity Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders Oak Indemnity Escrow Agreement and the other Seller Investor Parties hereby agreeing severallyconsummation of the Contemplated Transactions as the Representative may deem necessary or desirable. A decision, but not jointlyact, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval instruction of the Representative shall constitute a decision, act, consent or instruction of all of the Sellers and shall be final, binding and conclusive on each Seller. All decisions, acts, consents or instructions of the Representative may be relied upon by any third party as being the decision, act, consent or instruction of every Seller. In any Third Party Defense in which more than one Seller is an Indemnitor, the Representative shall act on behalf of all Seller Indemnitors. The Buyer and the Buyer Indemnitees, if applicable, will be entitled to rely exclusively upon any notices and other acts of the Representative as being legally binding acts of each Seller individually and the Sellers collectively. The appointment and power of them attorney granted by each Seller to the Representative shall be deemed coupled with an interest and all authority conferred hereby shall be irrevocable whether by death or incapacity of any such Seller or the occurrence of any other event or events.
(b) Each Seller acknowledges and agrees that the Representative will not be liable to the Sellers for any act done or omitted hereunder as the Representative while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to the advice of counsel will be conclusive evidence of such good faith. The Sellers will, jointly and severally, indemnify the Representative and hold it harmless against any Losses incurred without gross negligence or bad faith on the part of the Representative and arising out of or in connection with the acceptance or administration of his duties under this Agreement and the Non-Oak Sellers Indemnity Escrow Agreement. As the representative under this Agreement and the Oak Indemnity Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice .
(c) Each of the appointment Sellers will reimburse the Representative for his, her or its Pro Rata Share of a successor upon two any out-of-pocket, independent, third-party fees and expenses (2including fees and expenses of counsel, accountants and other advisors) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification incurred by the Representative that arise out of or investigation, all decisions made by Representative are in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder the acceptance or any other Seller Investor Party relating to administration of the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a MajorityNon-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred by this Oak Sellers Indemnity Escrow Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Oak Indemnity Escrow Agreement.
Appears in 1 contract
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby appoints PB▇▇▇▇ ▇▇▇▇▇▇ is hereby appointed, authorized and empowered to act the Representative, for the benefit of Seller and the Equityholders, as its representative the exclusive agent and its true and lawful attorney-in-fact to act on behalf of Seller and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacitieseach Equityholder, in connection with and to facilitate the consummation of the transactions contemplated by hereby, including pursuant to the Related Agreements, which will include the power and authority:
(i) to execute and deliver the Related Agreements (with such amendments, modifications or changes therein as to which the Representative, in its sole discretion, will have consented) and to agree to such amendments or modifications thereto as the Representative, in its sole discretion, determines to be desirable;
(ii) to negotiate, execute and deliver such waivers, modifications, amendments, consents and other documents required or permitted to be given in connection with this Agreement and the Escrow Agreement, granting unto said attorney-in-fact Related Agreements and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the consummation of the transactions contemplated hereby and thereby as fully the Representative, in its sole discretion, may deem necessary or desirable;
(iii) to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and take any action on behalf of each of them for Seller and the purposes of: (i) supervising the Closing; (ii) taking Equityholders or Seller or any and all actions Equityholder that may be necessary or desirable, as determined by Representative, the Representative in his its sole discretion, in connection with negotiating or entering into settlements, resolutions and compromises with respect to the amendment of this Agreement, adjustments or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; payments contemplated by Section 2.5;
(iv) to act for collect and receive all moneys and other proceeds and property payable to the Representative, Seller or the Equityholders from Purchaser as described herein or in the Related Agreements, and, subject to any applicable withholding retention laws, and net of any out-of-pocket expenses incurred by the Representative, the Representative will disburse and pay, except as otherwise provided hereunder, any amount payable to the Equityholders to each Equityholder to the extent of them with regard such Equityholders’ Pro Rata Portion of such amount;
(v) as the Representative, to matters pertaining enforce and protect the rights and interests of Seller and to indemnification referred enforce and protect the rights and interests of the Representative arising out of or under or in any manner relating to in this Agreement and the Escrow Related Agreements or the transactions provided for herein or therein, and to take any and all actions which the Representative believes are necessary or appropriate under the Related Agreements or this Agreement, including actions in connection with the power to compromise determination of any indemnity claim on their behalf; (v) executing payment due hereunder or thereunder for and delivering, on behalf of SellerSeller or Equityholders, including (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 an MMT Party or any other Person, or by any federal, state or local Governmental Authority against the Representative or Seller or any Equityholder, and receive process on behalf of Seller or any or all Equityholders in any such Unitholder claim, action, proceeding or investigation and compromise or settle on such other Seller Investor Partyterms as the Representative will 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 all notices, documents petitions as the Representative may deem advisable or certificates to be executed by necessary; (D) settle or compromise any of them in connection with claims asserted under this Agreement or the Related Agreements; and (E) file and prosecute appeals from any decision, judgment or award rendered in any such action, proceeding or investigation, it being understood that the Escrow Agreement Representative will not have any obligation to take any such actions, and the transactions contemplated hereby and thereby; will not have any liability for any failure to take any such actions;
(vi) to act for each refrain from enforcing any right of them with regard Seller, any Equityholder or the Representative arising out of or under or in any manner relating to matters pertaining to litigation (this Agreement, the Related Agreements or any other agreement, instrument or document in connection with the Unitholders and foregoing; provided, however, that no such failure to act on the other Seller Investor Parties hereby agreeing severallypart of the Representative, but not jointlyexcept as otherwise provided in this Agreement, to contribute, in respect will be deemed a waiver of any amounts paid (such right or required to be paid) interest by the Representative or by such Seller or Equityholder unless such waiver is in settlement writing signed by the waiving party or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share)by the Representative; and and
(vii) granting to make, execute, acknowledge, deliver and receive all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any consentand all things and to take any and all action that the Representative, waiver in its sole and absolute discretion, may consider necessary or approval proper or convenient in connection with or to carry out the transactions contemplated by this Agreement, the Related Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith.
(b) All actions decisions and instructions of the Representative will be conclusive and binding upon Seller and all of the Equityholders and no Seller, Equityholder or any other Person acting on behalf of each Seller will have any claim or cause of them under this Agreement action against the Representative, and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for will have no liability to Seller, all Unitholders and all any Equityholder or any other Person acting on behalf of Seller Investor Partiesor any Equityholder, shall have authority to bind each such Person in accordance with this Agreementfor any action taken, and Purchaser may rely on such appointment and authority until decision made or instruction given by the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement or any Related Agreements, except in writing the case of the Representative’s own gross negligence or willful misconduct. In the performance of its duties hereunder, the Representative will be entitled to rely upon any document or instrument reasonably believed by it to be genuine, accurate as to content and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder Equityholder, any MMT Party or any other Seller Investor Party relating Person. The Representative may assume that any Person purporting to give any notice in accordance with the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except provisions hereof has been duly authorized to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matterdo so.
(c) The Representative will have such powers and authority as are necessary or appropriate to carry out the functions assigned to it under this Agreement and in any other document delivered in connection herewith; provided, that the Representative will have no obligation to act on behalf of Seller or the Equityholders. The Representative will at all times be entitled to rely on any directions received from Equityholders which collectively owned, as of immediately prior to the Closing, more than 75% of the equity securities of Seller; provided, that the Representative will not be required to follow any such direction, and will be under no obligation to take any action in its capacity as the Representative based upon such direction. The Representative will be entitled to engage such counsel, experts and other agents and consultants as it may deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of willful misconduct on the part of the Representative) will be entitled to conclusively rely on the opinions and advice of such Persons. Notwithstanding anything to the contrary contained herein, the Representative in its capacity as such will have no fiduciary duties or responsibilities to Seller or any Equityholder and no duties or responsibilities except for those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of Seller or any Equityholder will otherwise exist against or with respect to the Representative in its capacity as such.
(d) In no event will the Representative be liable to Seller or any Equityholder hereunder or in connection herewith for any special, indirect, consequential, contingent, speculative, punitive or exemplary damages, or lost profits, diminution in value or any damages based on any type of multiple of earnings, cash flow or similar measure or for any liabilities resulting from the actions of Seller or an Equityholder other than the Representative acting in its capacity as such. The MMT Parties will have the right to rely upon all actions taken or omitted to be taken by the Representative pursuant to this Agreement and the Related Agreements, including the calculations required by Section 2.5, all of which actions or omissions will be legally binding upon Seller and the Equityholders. The grant of authority provided for herein (i) is coupled with an interest and will be irrevocable by any act of Seller or by operation of Law and all of the indemnities, immunities, authority and power granted to the Representative hereunder will survive the death, incompetency, bankruptcy or liquidation of Seller and (ii) will survive the Closing or any termination of this Agreement or any Related Agreements.
(e) The Representative will not be liable to Seller or any Equityholder for any act done or omitted hereunder as Representative while acting in good faith. Seller and the Equityholders will indemnify the Representative and hold the Representative harmless against any loss, liability or expense incurred without gross negligence or willful misconduct on the part of the Representative or any of its Affiliates and any of their respective partners, members, attorneys, accountants, advisors or controlling Persons and arising out of or in connection with the acceptance or administration of the Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Representative. Each MMT Party (on its behalf and on behalf of its Affiliates) acknowledges that the Representative is party to this Agreement solely for purposes of serving as the “Representative” hereunder and no claim will be brought by or on behalf of an MMT Party or any of its Affiliates against the Representative with respect to this Agreement or the agreements or transactions contemplated hereby or any certificate, opinion, instrument or other documents delivered hereunder (with it being understood that any covenant or agreement of or by the “parties” or “each of the parties” at or prior to the Closing will not be deemed to require performance by, or be an agreement of, the Representative unless performance by the Representative is expressly provided for in such covenant or the Representative expressly so agrees).
(f) All out-of-pocket fees and expenses (including legal, accounting and other advisors’ fees and expenses, if applicable) reasonably incurred by the Representative in performing any actions under this Agreement or the Related Agreements will be paid out of the Representative Fund from time to time, as and when such fees and expenses are incurred. In the event that the amount of the Representative resigns Fund is insufficient to satisfy all expense reimbursement and indemnification payments to which the Representative is entitled pursuant to this Section 9.12 upon written notice from the Representative to the Equityholders as to the existence of a deficiency toward the payment of any such expense reimbursement or indemnification amount, as the case may be, each Equityholder will promptly deliver to the Representative full payment of such Equityholder’s Pro Rata Portion of the amount of such deficiency. The Representative will establish such terms and procedures for administering, investing and disbursing any amounts from the Representative Fund as it may determine in its position reasonable judgment to be necessary, advisable or desirable to give effect to the provisions of this Agreement. If any balance of the Representative Fund remains undisbursed at such time as Representativeall disputes, claims and other matters relating to the transactions contemplated by this Agreement and all other instruments and agreements to be delivered pursuant hereto have been finally resolved, then the Representative will distribute to each Equityholder, by wire transfer of immediately available funds to an account designated by each Equityholder, such Equityholder’s Pro Rata Portion of such remaining balance of the Representative Fund.
(g) Any resignation by the Representative will not be effective until a successor new Representative shall will be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all Equityholders who held more than 75% of the poweraggregate equity securities of Seller, authority and rights conferred by this Agreement upon immediately prior to the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this AgreementClosing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Medicine Man Technologies, Inc.)
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent For purposes of the Acknowledgment and Joinder this Agreement, each other Seller Investor Party hereby appoints Pthe Escrowed Holders, without any further action on the part of any such Escrowed Holder, shall be deemed to have consented to the appointment of ▇▇▇▇▇ ▇▇▇▇▇▇▇ (or, if ▇▇▇▇▇ ▇▇▇▇▇▇▇ is offered and accepts a full-time management position with Parent, the Surviving Corporation or any of their Affiliates, ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall become the Representative automatically and without any further action on the part of the Escrowed Holders) as its representative and its true and lawful the Representative of such Escrowed Holders, as the attorney-in-fact for and agenton behalf of each such Escrowed Holder, with full powers and the taking by the Representative of substitution and resubstitution, in its name, place and stead, in any and all capacitiesactions and the making of any decisions required or permitted to be taken by him under this Agreement, in connection with including the transactions contemplated by exercise of the power to (a) execute this Agreement and the Escrow Agreement, granting unto said attorney-in-fact (b) authorize delivery to Parent and agentthe Surviving Corporation of the Escrow Fund, full power or any portion thereof, in satisfaction of Indemnification Claims, (c) agree to, negotiate, enter into settlements and authority compromises of and comply with orders of courts and awards of arbitrators with respect to do such Indemnification Claims, (d) resolve any Indemnification Claims, and perform each and every act and thing requisite and (e) take all actions necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting judgment of the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising accomplishment of the Closing; (ii) taking any foregoing and all actions that may be necessary or desirableof the other terms, as determined by Representative, in his sole discretion, in connection with the amendment conditions and limitations of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement. Accordingly, including the Representative has unlimited authority and power to compromise any indemnity claim on their behalf; (v) executing and delivering, act on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates each Escrowed Holder with respect to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severallydisposition, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise other handling of such mattersall Indemnification Claims, their pro rata portion of such amounts based on their Pro Rata Share); rights or obligations arising from and (vii) granting any consent, waiver or approval on behalf of each of them under taken pursuant to this Agreement and or the Escrow Agreement. As The Escrowed Holders will be bound by all actions taken by the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing or the Escrow Agreement, and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders Parent and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative Surviving Corporation shall not be entitled to indemnification hereunder rely on any action or decision of the Representative. The Representative will incur no liability with respect to the extent it is finally determined any action taken or suffered by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected him in acting reliance upon any notice, direction, instruction, consent, statement or certificate other document believed by Representative him to be genuine and to have been furnished signed by the appropriate Person proper person (and in acting shall have no responsibility to determine the authenticity thereof), nor for any other action or refusing inaction, except his own willful misconduct, bad faith or gross negligence. In all questions arising under this Agreement or the Escrow Agreement, the Representative may rely on the advice of counsel, and the Representative will not be liable to act Escrowed Holders for anything done, omitted or suffered in good faith by the Representative based on any matter.
(c) In such advice. Subject to and in accordance with the event that Representative resigns from its position as Representativeterms of the Escrow Agreement, a successor up to $250,000 of the reasonable expenses of the Representative shall be appointed by paid from the Escrow Fund on an as incurred basis. The Representative will not be required to take any action involving any expense unless the payment of such expense is made or provided for in a Majority-in-Interest as promptly as practicablemanner satisfactory to him. Each successor Representative shall have all At any time during the term of the powerEscrow Agreement, authority Escrowed Holders entitled to a majority in interest of the Escrow Amount can appoint a new Representative by written consent by sending notice and rights conferred by this Agreement a copy of the duly executed written consent appointing such new Representative to Parent and the Escrow Agent. Such appointment will be effective upon the initial Representatives later of the date indicated in the consent or the date such consent is received by Parent, Merger Sub (or, if after the Effective Time, the Surviving Corporation) and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this AgreementEscrow Agent.
Appears in 1 contract
Sources: Merger Agreement (Getty Images Inc)
Representative. (a) SellerEach THL Entities hereby designates and appoints (and each Permitted Transferee of each such THL Entities is hereby deemed to have so designated and appointed) each of Anthony J. DiNovi, each Unitholder andScott Sperling and Kent Weldon, upon execution and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby appoints Pas his attorney-in-▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇we▇ ▇▇ ▇▇▇▇▇▇▇▇▇ion f▇▇ ▇▇▇▇ ▇▇ them (the "THL Entities' Representative"), to serve as its the representative of each such person to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such person and its true hereby acknowledges that the THL Entities' Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by each such person. Each such person further acknowledges that the foregoing appointment and lawful designation shall be deemed to be coupled with an interest and shall survive the death or incapacity of such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the other parties hereto to disregard any notice or other action taken by such person pursuant to this Agreement except for the THL Entities' Representative. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the THL Entities' Representative and are and will be entitled and authorized to give notices only to the THL Entities' Represen- tative for any notice contemplated by this Agreement to be given to any such person. A successor to the THL Entities' Representative may be chosen by a majority in interest of the THL Entities' Shareholders, provided that notice thereof is given by the new THL Entities' Representative to the Company and to each Non-THL Shareholder.
(b) Each DLJ Entities hereby designates and appoints (and each Permitted Transferee of each such DLJ Entities' is hereby deemed to have so designated and appointed) DLJ Merchant Banking II, Inc., as his attorney-in-fact and agent, with full powers power of substitution and resubstitutionfor each of them (the "DLJ Entities' Representative"), in its nameto serve as the representative of each such person to perform all such acts (other than voting of shares of Common Stock) as are required, place and stead, in any and all capacities, in connection with the transactions authorized or contemplated by this Agreement to be performed by such person and hereby acknowledges that the Escrow AgreementDLJ Entities' Representative shall be the only person authorized to take any action so required, granting unto said authorized or contemplated by this Agreement by each such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the other parties hereto to disregard any notice or other action taken by such person pursuant to this Agreement except for the DLJ Entities' Representative. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the DLJ Entities' Representative and are and will be entitled and authorized to give notices only to the DLJ Entities' Representative for any notice contemplated by this Agreement to be given to any such person. A successor to the DLJ Entities' Representative may be chosen by a majority in interest of the DLJ Entities' Shareholders, provided that notice thereof is given by the new DLJ Entities' Representative to the Company and to each other DLJ Entity Shareholder.
(c) Each Merrill Lynch Entities hereby designates and appoints (and each Permit▇▇▇ ▇▇▇n▇▇▇▇▇e of each such Merrill Lynch Entities is hereby deemed to have so designated and appo▇▇▇▇▇) K▇▇▇▇▇ Inc., as his attorney-in-fact and agent, with full power and authority of substitution for each of them (the "Merrill Lynch Entities Representative"), to do and serve as the representativ▇ ▇▇ ▇▇c▇ ▇▇▇h person to perform each and every act and thing requisite and necessary all such acts as are required, authorized or contemplated by this Agreement to be done in connection with performed by such person and hereby acknowledges that the transactions contemplated hereby and thereby as fully to all intents and purposes as it might Merrill Lynch Entities Representative shall be the only person authori▇▇▇ ▇▇ t▇▇▇ ▇ny action so required, authorized or could do in contem plated by this Agreement by each such person. Without limiting Each such person further acknowledges that the foregoing, Seller, each Unitholder foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the death or incapacity of such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the other Seller Investor Party parties hereby irrevocably appoint to disregard any notice or other action taken by such person pursuant to this Agreement except for the Merrill Lynch Entities Representative. The other parties hereto are an▇ ▇▇▇▇ b▇ ▇▇▇itled to rely on any action so taken or any notice given by the Merrill Lynch Entities Representative and are and will be entitled and ▇▇▇▇▇▇i▇▇▇ ▇o give notices only to the Merrill Lynch Entities Representative for any notice contemplated by t▇▇▇ ▇▇▇e▇▇▇▇▇ to be given to any such person. A successor to the Merrill Lynch Entities Representative may be chosen by a majority in i▇▇▇▇▇▇▇ ▇▇ ▇▇e Merrill Lynch Entities' Shareholders, provided that notice thereof is ▇▇▇▇▇ ▇y ▇▇▇ new Merrill Lynch Entities Representative to the Company and to each other ▇▇▇▇▇▇l ▇▇▇▇h Entity Shareholder.
(d) Each Management Shareholde▇ ▇▇▇▇▇y ▇▇▇▇gnates and appoints (and each Permitted Transferee of each such Management Shareholder is hereby deemed to have so designated and appointed) Paul M. Meister, as their sole representative to act as the his attorney-in-fact and agent and on behalf with full power of substituti▇▇ ▇▇▇ ▇▇▇▇ ▇▇ them (the "Management Representa- tive"), to serve as the representative of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and such person to perform all actions that may be necessary such acts as are required, authorized or desirable, as determined contemplated by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed performed by any of them in connection with this Agreement such person and hereby acknowledges that the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Management Representative shall be liable the only person authorized to Sellertake any action so required, any Unitholder authorized or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred contemplated by this Agreement upon by each such person. Each such person further acknowledges that the initial Representatives foregoing appointment and the term “Representatives” herein designation shall be deemed to include be coupled with an interest and shall survive the death or incapacity of such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the other parties hereby to disregard any successor Representative. “Majority-in-Interest” means Unitholders and notice or other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid action taken by such person pursuant to this AgreementAgreement except for the Management Representative. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the Management Representative and are and will be entitled and authorized to give notices only to the Management Representative for any notice contemplated by this Agreement to be given to any such person. A successor to the Management Representative may be chosen by a majority in interest of the Management Shareholders, provided that notice thereof is given by the new Management Representative to the Company and to each other Management Shareholder.
Appears in 1 contract
Sources: Investors' Agreement (Fisher Scientific International Inc)
Representative. (a) Seller, each Unitholder and, upon execution The Sellers hereby irrevocably designate and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby appoints Pappoint ▇▇▇▇▇ ▇▇▇▇▇▇ (the “Representative”) as its representative the agent and its true and lawful attorney-in-fact for the Sellers and agentthe Representative is authorized and empowered to act, for and on behalf of any or all of the Sellers (with full powers power of substitution and resubstitution, in its name, place and stead, in any and all capacitiesthe premises), in connection with the transactions contemplated by indemnity provisions of this Section 7 as they relate to the Sellers generally, the Adjustment Amount, the Revenue Adjustment, the Holdback Amount, the notice provision of this Agreement and such other matters as are reasonably necessary for the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with consummation of the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Sellerrepresentative of Sellers to review and authorize all set-offs, all Unitholders claims and all other Seller Investor Partiespayments authorized or directed by this Section 7 and dispute or question the accuracy thereof, shall have authority to bind each compromise on their behalf with Buyer any claims asserted thereunder and to authorize payments to be made with respect thereto and to take such Person further actions as are authorized in accordance with this Agreement, and Purchaser may rely on such appointment and authority until . In the receipt of notice of event that the appointment of a successor upon two person serving as Representative dies or becomes disabled or resigns (2) Business Days’ prior by written notice to Purchaserthe parties), a replacement shall be designated within ten (10) days by those Sellers receiving a majority of the Purchase Price. Purchaser may conclusively rely uponThe Representative shall not be liable, without independent verification in his capacity as representative of the Sellers, to any Seller and their respective affiliates with respect to any action taken or investigation, all decisions made omitted to be taken by the Representative under or in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Sellerhis capacity as representative of the Sellers unless such action or omission results from or arises out of fraud, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, gross negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraudbad faith on the part of the Representative. The Sellers acknowledge and agrees that Representative shall will be severally (but not jointly) indemnified an employee of the Company after the Closing. Each Seller who receives any portion of the Purchase Price, by acceptance thereof and held harmless by without any further action, confirms such appointment and authority and acknowledges and agrees that such appointment is irrevocable and coupled with an interest, it being understood that the Unitholders and the other Seller Investor Partieswillingness of Buyer to enter into this Agreement is based, in part, on the appointment of a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim representative to which Representative is made a party by reason act on behalf of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matterSellers.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Representative. Each Seller hereby (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby appoints P▇▇▇ ▇▇▇▇ as its representative and its true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint pursuant to the Required Documentation shall thereby) appoints the Representative as their sole representative to act as the attorney-in-fact and agent for and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any Seller Parties to give and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting receive notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them communications in connection with this Agreement and the transactions contemplated hereby, to authorize and agree to adjustments to the Buyer Shares, the Cash Consideration, the Option Consideration, the Warrant Shares, the Earnout Shares and the Earnout Funds under Article 1 and other applicable provisions of this Agreement, to authorize distribution of the Escrow Shares, the Escrow Funds, the Adjustment Shares and the Adjustment Funds, to take all actions on behalf of the Seller Parties pursuant to this Agreement and any Ancillary Agreement to which any Seller Party is a party, and to take all actions necessary or appropriate in the transactions contemplated hereby judgment of the Representative for the accomplishment of the foregoing. More specifically, the Representative shall have the authority to make all decisions and thereby; determinations and to take all actions (viincluding giving Consents or agreeing to any amendments to this Agreement or any Ancillary Agreement to which it is a party or to the termination hereof or thereof) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (required or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval permitted hereunder on behalf of each such Seller (or such other Seller Party), and any such action, decision or determination so made or taken shall be deemed the action, decision or determination of them each such Seller (or such other Seller Party), and any notice, communication, document, certificate or information required (other than any notice required by Law or under the Company’s Organizational Documents) to be given to any Seller Party hereunder or pursuant to any Ancillary Agreement shall be deemed so given if given to the Representative. The Representative shall be authorized to take all actions on behalf of the Seller Parties in connection with any claims made under Articles 6 or 7 of this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, to defend or settle such claims, and to authorize payments in respect of such claims on behalf of the Seller Parties. The Representative may resign at any time upon 20 days prior notice. In the event the Representative has given notice of its intent to resign, the Seller Parties shall act as promptly (and no later than the agent for Sellereffective date of the Representative’s resignation) appoint a successor Representative, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser the following sentence. The Seller Parties may rely on such appointment and authority until remove or replace the receipt Representative by a vote of notice holders that own a majority of the appointment of a successor Company’s capital stock immediately prior to Closing upon two not less than ten (210) Business Days’ prior written notice to PurchaserBuyer. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall No bond will be liable to Seller, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason required of the fact that Representative. Notices or communications to or from the Representative was acting as Representative pursuant will constitute notice to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all each of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this AgreementParties.
Appears in 1 contract
Representative. Each Shareholder hereby designates and appoints (aand each Permitted Transferee of each such Shareholder is hereby deemed to have so designated and appointed) SellerGregory T. Mutz (the "REPRESENTATIVE"), each Unitholder andacting jointly or individuall▇, upon execution and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby appoints P▇▇ ▇▇▇ ▇▇▇▇ as its representative and its true and lawful attorney▇▇neys-in-fact and agent, with full powers power of substitution and resubstitutionfor each of them, in its nameto serve as the representative of such Shareholder to perform all such acts as are required, place and stead, in any and all capacities, in connection with the transactions authorized or contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: performed by such Shareholder (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf voting of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person Subject Shares in accordance with this AgreementSections 4(a) and 4(b)), and Purchaser may rely on such appointment and authority until hereby acknowledges that the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable authorized to Sellertake any action so required, any Unitholder authorized or any other Seller Investor Party relating to the performance of Representative’s duties under contemplated by this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence Agreement. Each such Shareholder further acknowledges that the acts or omissions of Representative constituted willful misconduct or fraud. Representative foregoing appointment and designation shall be severally deemed to be coupled with an interest and shall survive the death or incapacity of such Shareholder. Each such Shareholder hereby authorizes (but not jointlyand each such Permitted Transferee of such Shareholder shall be deemed to have authorized) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred parties hereto to disregard any notices or other action taken by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative such Shareholder pursuant to this Agreement; provided, however, that Representative shall not except for notices and actions taken by the Representative. Purchaser is and will be entitled to indemnification hereunder rely on any action so taken or any notice given by the Representative and is and will be entitled and authorized to give notices only to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon for any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred notice contemplated by this Agreement upon to be given to any such Shareholder. A successor to the initial Representatives and Representative may be chosen by a majority in interest of the term “Representatives” herein shall be deemed Shareholders; provided that notice thereof is given by the new Representative to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this AgreementPurchaser.
Appears in 1 contract
Sources: Voting Agreement (Amli Residential Properties Trust)
Representative. (a) Seller, each Unitholder and, upon execution Each Shareholder irrevocably appoints Min Juang (the “Representative”) with power of designation and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby appoints P▇▇▇ ▇▇▇▇ assignment as its representative and its true and lawful attorney-in-fact and agent, agent with full powers power of substitution substitution, to act solely and resubstitutionexclusively on behalf of, and in the name of, such Shareholder with the full power, without the consent of such Shareholder, to exercise as the Representative in its namesole discretion deems appropriate, place the powers which such Shareholder could exercise under the provisions of this Agreement and stead, to take all actions necessary or appropriate in any and all capacities, the judgment of the Representative in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full which shall include the power and authority to do and perform each and every act and thing requisite and necessary to be done in connection amend, modify, waive or provide consent with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoingrespect to, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreementto execute, including the power to compromise any indemnity claim on their behalf; (v) executing deliver and delivering, on behalf of Seller, accept such Unitholder waivers and such other Seller Investor Party, consents and any and all notices, documents documents, certificates or certificates other papers to be executed by any of them delivered in connection with this Agreement and the Escrow Agreement and consummation of the transactions contemplated hereby as the Representative, in its sole discretion, may deem necessary or desirable; provided that the Representative may not amend this Agreement without the consent of such Shareholder if the consideration to be received by such Shareholder pursuant to Article II hereof will be reduced by the proposed amendment or if such Shareholder will be disproportionately and thereby; (vi) adversely affected by the proposed amendment relative to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severallyShareholders of the same class. The Representative shall have the power to waive, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow AgreementShareholder, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative any attorney-client privileges in connection with this Agreement communications between such Shareholder and counsel to the Acquired Companies in writing connection with the transactions contemplated hereunder. The Buyer and signed the Buyer Indemnitees, if applicable, will be entitled to rely exclusively upon any notices and other acts of the Representative as being legally binding acts of each Shareholder individually and the Shareholders collectively. The appointment and power of attorney granted by Representativeeach Shareholder to the Representative shall be deemed coupled with an interest and all authority conferred hereby shall be irrevocable whether by death or incapacity of any such Shareholder or the occurrence of any other event or events.
(b) Neither Each Shareholder acknowledges and agrees that the Representative nor any agent employed by Representative shall will not be liable to Sellersuch Shareholder for any act done or omitted hereunder as the Representative while acting in good faith and in the exercise of reasonable judgment, and any Unitholder act done or any other Seller Investor Party relating omitted pursuant to the performance advice of counsel will be conclusive evidence of such good faith. The Shareholders will jointly and severally indemnify the Representative and hold it harmless against any Losses incurred without gross negligence or bad faith on the part of the Representative and arising out of or in connection with the acceptance or administration of its duties under this Agreement.
(c) The Shareholders will reimburse the Representative for their pro rata share, of any out-of-pocket, independent, third-party fees and expenses (including fees and expenses of counsel, accountants and other advisors) incurred by the Representative that arise out of or are in connection with the acceptance or administration of the Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Sources: Share Purchase Agreement (ALPHA & OMEGA SEMICONDUCTOR LTD)
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party I hereby appoints Pdesignate ▇▇▇▇▇▇▇ ▇▇▇▇▇ to act as my “Purchaser Representative” as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act in connection with evaluating the merits and the risks of an investment in the Parent Common Stock. I hereby designate ▇▇▇▇▇▇▇ ▇▇▇▇▇ as its representative my “Representative” as such term is used in the Merger Agreement and its true I recognize that the Representative is appointed, authorized and lawful empowered to be the exclusive proxy, representative, agent and attorney-in-fact of myself and agentof each of the Company Holders, with full powers power of substitution and resubstitutionresubstitution (and such power of attorney being deemed to be an irrevocable power coupled with an interest), to undertake all actions and responsibilities as specified in its name, place and stead, Section 9.6 of the Merger Agreement. All authority conferred or agreed to be conferred in any this Company Holder Agreement and all capacitiesof my obligations hereunder will be binding upon my successors, assigns, heirs, executors, administrators, trustees in connection with the transactions contemplated by this Agreement bankruptcy and the Escrow Agreementlegal representatives (collectively, granting unto said attorney“Successors-in-fact Interest”) and agentwill not be affected by, and will survive, my death, incapacity or bankruptcy. I acknowledge and agree that Parent, the Surviving Corporation, and any other person may conclusively and absolutely rely, without inquiry, upon any action of the Representative as my action in all matters referred to in the Merger Agreement. I agree that the Representative shall have full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection represent me with the transactions contemplated hereby and thereby as fully respect to all intents matters arising under the Merger Agreement and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may such representation shall be necessary or desirablebinding upon me, as determined if expressly confirmed and ratified in writing by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement me. The Parent and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser Surviving Corporation may rely on such appointment the Representative as my exclusive agent and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice shall incur no liability to Purchaser. Purchaser may conclusively rely upon, without independent verification any party with respect to any action taken or investigation, all decisions made suffered by Representative it in connection with this Agreement in writing and signed by Representativereliance thereon.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Sources: Company Holder Agreement (ExlService Holdings, Inc.)
Representative. (a) Seller, each Unitholder and, Parent shall be entitled to deal exclusively with and rely upon execution and delivery the Representative on all matters relating to Purchaser and Parent of the Acknowledgment and Joinder this Agreement, each other Seller Investor Party hereby appoints P▇▇▇ ▇▇▇▇ as its representative and its true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact the Earn Out Agreement and agent, full power the other Transaction Documents and authority shall be entitled to do and perform each and every act and thing requisite and necessary rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed by the Representative on behalf of any Former Equityholder (collectively, the “Represented Parties”), and on any other action taken or purported to be taken by the Representative on behalf of any of the Represented Parties by the Representative, as fully binding upon the Represented Parties. Parent and its Affiliates shall be relieved from any liability to any Person for any acts done by them in accordance with any decision, act, consent or instruction of the Representative.
(b) Parent hereby waives any claims it may have or assert, including those that may arise in the future, against the Representative for any action or inaction taken or not taken by the Representative in connection with such entity’s capacity as the Representative, except to the extent that such action or inaction shall have been held by a court of competent jurisdiction to constitute bad faith or willful misconduct.
(c) The Represented Parties and their respective successors shall be irrevocably bound by any and all actions taken by the Representative under or otherwise relating to this Agreement, the Escrow Agreement and any other Transaction Document, and the transactions contemplated hereby and thereby as fully if such actions were expressly ratified and confirmed by each of them. The approval of this Agreement and the transactions contemplated hereby by the requisite Represented Parties necessary to approve such matters shall constitute the consent and agreement of each Represented Party to the appointment and authority of the Representative to act on their behalf pursuant to this Agreement, the Escrow Agreement and the other Transaction Documents.
(d) The Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the payment of all intents its out-of-pocket costs and purposes expenses incurred as it might or could do in personthe Representative. Without limiting In connection with the foregoing, Seller, each Unitholder $250,000 (the “Expense Funds”) of the Estimated Closing Merger Consideration shall be paid at the Closing to an account designated by the Representative pursuant to Section 1.5(c)(ii) to be used by the Representative to pay the costs and each other Seller Investor Party hereby irrevocably appoint expenses incurred by the Representative as their sole representative to act in its capacity as the attorney-in-fact Representative. The Parties agree that, for all Tax purposes, the Expense Funds shall be treated as having been received and agent voluntarily set aside by the Former Equityholders and on behalf the Option Holders at the time of each Closing. In addition, to the extent that the Expense Funds are at any time insufficient (as determined by the Representative in its sole discretion) to cover all of them for the purposes ofcosts and expenses incurred by the Representative in its capacity as the Representative or amounts due hereunder, then the Representative may, at its option: (i) supervising retain such portion of the Closing; Merger Consideration Adjustment Escrow Funds (iiwhen and to the extent that the Merger Consideration Adjustment Escrow Funds are released to the Representative (on behalf of the Former Equityholders) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection accordance with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including ) as determined by the power to compromise any indemnity claim on their behalfRepresentative in its sole discretion for purposes of reimbursement of such costs and expenses; (vii) executing retain such amount of the proceeds received by the Former Equityholders after the Closing Date under any term or provision of this Agreement; or (iii) seek reimbursement of such costs and deliveringexpenses directly from the Former Equityholders. Once the Representative determines, in its sole discretion, that the Representative will not incur any additional expenses in its capacity as the Representative, then the Representative will distribute the remaining unused Expense Funds (if any) pro rata to the Former Equityholders (other than the Option Holders) and to an Acquired Company on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contributeOption Holders, in respect each case based upon such holder’s Ownership Percentage.
(e) For purposes of any amounts paid (exercising Representative’s rights or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them satisfying the Representative’s obligations under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Earn Out Agreement, or as necessary for any reasonable business purpose, including financial reporting and accounting matters, the preparation and filing of any Tax Return, the defense of any Tax Claim or assessment, Parent shall retain and provide the Representative shall act as and its representatives with access, at the agent for SellerRepresentative’s sole expense, all Unitholders upon prior reasonable written request specifying the need therefor, during regular business hours, to (i) the officers and all other Seller Investor Partiesemployees of any Acquired Company and (ii) the books of account and records of any Acquired Company, shall have authority but, in each case, only to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party extent relating to the performance assets, liabilities or business of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except Acquired Company prior to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders Effective Time, and the other Seller Investor PartiesRepresentative and its representatives shall have the right to make copies of such books and records, on a Pro Rata Share basis, against all costs at the sole cost and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason expense of the fact that Representative was acting as Representative pursuant to this AgreementRepresentative; provided, however, that Representative the foregoing right of access shall not be entitled exercisable in such a manner as to indemnification hereunder interfere unreasonably with the normal operations and business of the applicable Acquired Company; and provided, further, as to so much of such information as constitutes trade secrets or confidential business information of any Acquired Company, the Representative and its representatives will enter into a confidentiality agreement reasonably acceptable to Parent and use due care to not disclose such information except (1) with the prior written consent of Parent, (2) where such information becomes available to the extent it public generally, through sources other than the Representative and its representatives or (3) for a disclosure that is finally determined required by Law or a court of competent jurisdiction securities exchange or in connection with a filing by clear and convincing evidence that the acts Representative under federal or omissions of Representative constituted willful misconduct state securities Laws or fraud. is reasonably believed to be so required in which case, the Representative shall notify Parent prior to such disclosure and allow Parent the ability to seek a protective order. Nothing in this Section 1.6(e) will require Parent or the Surviving Company to disclose information that is subject to attorney-client privilege. The Surviving Company may nevertheless destroy the financial books and records contemplated by this Section 1.6(e) on or after the five (5)-year anniversary of the Closing Date if Parent sends to the Representative written notice of its intent to destroy such records; provided that any records relevant to the performance or enforcement of obligations under the Earn Out Agreement shall not be protected destroyed until the completion or expiration of all such obligations; provided further that no such notice shall be required after the six (6)-year anniversary of the Closing Date. Such records may then be destroyed after the 60th day after such notice is given unless the Representative objects to the destruction, in acting upon any notice, statement or certificate believed by Representative which case the Surviving Company shall deliver such records to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all at the sole cost and expense of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party Each Stockholder hereby appoints P▇▇▇ ▇▇▇▇ as its representative and its true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder (and each other Seller Investor Party hereby irrevocably holder of In the Money Options shall appoint in his or her respective Option Cancellation Agreement) the Representative as their sole representative to act as the attorney-in-fact and agent for and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any Stockholders to give and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting receive notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them communications in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointlyhereby, to contributeauthorize and agree to adjustments to the Cash Payment and Earn-Out Payments under Article 1, to modify the Business Plan and other applicable provisions of this Agreement, to take all actions on behalf of Stockholders pursuant to this Agreement, and to take all actions necessary or appropriate in respect the judgment of the Representative for the accomplishment of the foregoing. More specifically, the Representative shall have the authority to make all decisions and determinations and to take all actions (including giving Consents or agreeing to any amounts paid (amendments to this Agreement or any Ancillary Agreement to which it is a party or to the termination hereof or thereof) required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval permitted hereunder on behalf of each such Stockholder, and any such action, decision or determination so made or taken shall be deemed the action, decision or determination of them each such Stockholder, and any notice, communication, document, certificate or information required (other than any notice required by Law or under this the Company’s Organizational Documents) to be given to any Stockholder hereunder or pursuant to any Ancillary Agreement and shall be deemed so given if given to the Escrow AgreementRepresentative. As Without limiting the representative under this Agreement and generality of the Escrow Agreementforegoing, the Representative shall act as be authorized, in connection with the agent for SellerClosing, to execute all Unitholders certificates, documents and agreements on behalf of and in the name of Stockholders necessary to effectuate the Closing and related transactions. The Representative shall be authorized to take all other Seller Investor Parties, shall have authority to bind each such Person actions on behalf of the Stockholders in accordance connection with any claims made under Articles 8 or 9 of this Agreement, to defend or settle such claims, and Purchaser to make payments in respect of such claims on behalf of Stockholders. The Stockholders may rely on such appointment and authority until remove or replace the receipt Representative by a vote of notice holders that owned a majority of the appointment Common Stock immediately prior to Closing. If the Representative shall be removed, resign or otherwise be unable to fulfill its responsibilities hereunder, the Stockholders shall appoint a successor to the Representative, and shall immediately thereafter notify Buyer of the identity of such successor. Any such successor shall succeed the former Representative as the Representative hereunder. No bond will be required of the Representative, and the Representative will receive no compensation for its services. Notices or communications to or from the Representative will constitute notice to or from each of Stockholders. Notwithstanding anything to the contrary herein, in the event of a successor upon two (2) Business Days’ prior written notice claim hereunder against a single Participating Equityholder, and not any other Participating Equityholders, such affected Participating Equityholder shall be entitled to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representativecontrol the defense of such claim.
(b) Neither The Representative nor any agent employed by Representative shall will not be liable for any act done or omitted hereunder as the Representative, except in the case of its bad faith or willful misconduct. The Representative may consult with legal counsel, independent public accountants and other experts selected by it and as between the Representative and the Participating Equityholders, shall not be liable for any action taken or omitted to Sellerbe taken in good faith by it in accordance with the advice of such counsel, accountants or experts. Stockholders will severally indemnify the Representative and hold the Representative harmless against any Unitholder Adverse Consequences incurred on the part of the Representative and arising out of or any other Seller Investor Party relating to in connection with the performance acceptance or administration of the Representative’s duties under this Agreement for any errors hereunder. Buyer agrees that except as may be provided in judgmentArticle 8 if the Representative is also a Participating Equityholder, negligence, oversight, breach of duty or otherwise except it will not look to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that Representative or the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason underlying assets of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to for the extent it is finally determined by a court satisfaction of competent jurisdiction by clear and convincing evidence that any obligations of the acts Company or omissions any of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter.Participating Equityholders
(c) In the event that Representative resigns from its position as RepresentativeA decision, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all act, consent or instruction of the powerRepresentative will constitute a decision of all Stockholders and will be final, authority binding and rights conferred conclusive upon each such -75- Stockholder, and Buyer may rely upon any such decision, act, consent or instruction of the Representative as being the decision, act, consent or instruction of each such Stockholder. Buyer Indemnitees are hereby relieved from any Adverse Consequences to any Person for any acts done by this Agreement upon such Buyer Indemnitees in accordance with such decision, act, consent or instruction of the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Allscripts Healthcare Solutions, Inc.)
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby appoints PEach Stockholder by signing this Agreement designates R▇▇▇ ▇▇▇▇▇▇ as its representative and its the representative of the Stockholders, in each case for purposes of the Transaction Documents (the “Representative”). If R▇▇▇ ▇▇▇▇▇▇ shall be unable to serve as the Representative, the Stockholders designate H▇▇▇▇▇▇ ▇▇▇▇▇▇ to be the Representative. The Stockholders shall be bound by any and all actions taken by the Representative on their behalf.
(b) The Representative is hereby appointed and constituted the true and lawful attorney-in-fact and agentof each Stockholder, with full powers power in his or her name and on his or her behalf to act according to the terms of substitution the Transaction Documents in the discretion of the Representative, and resubstitutionto do all things and to perform all acts, including amending the Transaction Documents, waiving rights, discharging liabilities and obligations, making all decisions relating to the determination of the Purchase Price Adjustment, and executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in its nameconnection with, place and stead, in any the Transaction Documents. This power of attorney and all capacitiesauthority hereby conferred is granted in consideration of the mutual covenants and agreements made herein, and shall be irrevocable and shall not be terminated by any act of any one or more Stockholders, or by operation of Law, whether by death or other event.
(c) All decisions and actions by the Representative, including, without limitation, any agreement between the Representative and the Buyer relating to the determination of the Purchase Price Adjustment, or the defense or settlement of any claims for which the Stockholders may be required to indemnify the Buyer Indemnified Parties and/or the Company pursuant to Article VI hereof, shall be binding upon all Stockholders, and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same.
(d) By his or her execution of this Agreement, each Stockholder agrees that: (i) the Buyer shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Purchase Price Adjustment, or the settlement of any claims for indemnification by the Buyer or the Company pursuant to Article VI hereof or any other actions required to be taken by the Representative hereunder, and no party hereunder shall have any cause of action against the Buyer for any action taken by the Buyer in reliance upon the instructions or decisions of the Representative; (ii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Stockholders and no Stockholder shall have any cause of action against the Representative for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful breach of this Agreement by the Representative; (iii) the provisions of this Section 1.6 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalfhereby; (iv) remedies available at law for any breach of the provisions of this Section 1.6 are inadequate; therefore, the Buyer and the Company shall be entitled to act for temporary and permanent injunctive relief without the necessity of proving damages if either the Buyer or the Company brings an action to enforce the provisions of this Section 1.6; and (v) the provisions of this Section 1.6 shall be binding upon the executors, heirs, legal representatives and successors of each of them with regard to matters pertaining to indemnification referred to Stockholder, and any references in this Agreement to a Stockholder shall mean and include the Escrow Agreementsuccessors to such Stockholder’s rights hereunder, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative whether pursuant to this Agreement; providedtestamentary disposition, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court laws of competent jurisdiction by clear descent and convincing evidence that the acts distribution or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matterotherwise.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Representative. (a) SellerEach Seller hereby irrevocably appoints the Representative to serve (and the Purchaser hereby acknowledges that the Representative will serve) as the exclusive agent, each Unitholder and, upon execution proxy and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby appoints P▇▇▇ ▇▇▇▇ as its representative and its true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and for such Seller for all capacities, in connection with the transactions contemplated by purposes under this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, (including full power and authority to do act on behalf of such Seller). Without limiting the generality of the foregoing appointment, the Representative is authorized and perform each and every act and thing requisite and necessary empowered to be done (a) in connection with the transactions Closing, execute and receive all documents, instruments, certificates, statements and agreements on behalf of and in the name of each Seller necessary or desirable to effectuate the Closing; (b) execute and deliver, should it elect to do so in its sole discretion, on behalf of each Seller, any amendment to, or waiver under, this Agreement so long as the express terms of such amendment or waiver do not adversely and disproportionately affect the rights or obligations of any Seller as compared to any other Sellers, and in the case of any such effect on a Seller or Sellers, the Seller or Sellers so adversely and disproportionately affected, must provide their prior written consent for any such action to be taken; (c) engage and employ, on behalf of the Sellers, agents and representatives (including legal counsel and other professionals) and incur such expenses as the Representative may in its sole discretion determine necessary or appropriate in connection with the administration of the foregoing, at the expense of the Sellers; (d) pay or cause to be paid all expenses incurred or to be incurred by or on behalf of the Sellers in connection with this Agreement; (e) accept, deliver and receive instructions and notices required or permitted under this Agreement; (f) take all other actions to be taken by or on behalf of any Seller and exercise any and all rights that any Seller is permitted or required to do or exercise under this Agreement; and (g) take all other actions that are either necessary or appropriate in its judgment for the accomplishment of the foregoing or contemplated hereby by the terms of this Agreement. Additionally, as promptly as practicable after the Closing, the Representative agrees to use a portion of the Representative’s Fund to fully redeem the Representative’s Class A Senior Preferred Units, Class A Junior Preferred Units, and thereby Class B Senior Preferred Units, and Class B Junior Preferred Units, in each case, such that each holder thereof is paid in full with respect thereto and ceases to be a member of the Representative. The Representative will have no duties or responsibilities except for those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Seller will exist with respect to the Representative in its capacity as fully such. The agencies and proxies created hereunder by the Sellers are coupled with an interest and are therefore irrevocable without the consent of the Representative, and will survive the death, incapacity, bankruptcy, dissolution or liquidation of any Seller. All decisions and acts by the Representative will be binding upon the Sellers and no Seller will have the right to all intents and purposes as it might object, dissent, protest or could do in personotherwise contest the same. Without limiting the generality of the foregoing, Sellerany notice delivered or payment made by the Purchaser to the Representative will be treated as having been delivered or made, as the case may be, to each Unitholder and each other Seller Investor Party hereby irrevocably appoint entitled thereto, regardless of the actions taken or not taken by the Representative as their sole representative following receipt of such notice or payment. The Representative is authorized to act as the attorney-in-fact and agent and on behalf of each the Sellers in accordance with the terms of them for this Section 14.19, notwithstanding any dispute or disagreement with or among the purposes of: (i) supervising the Closing; (ii) taking Sellers. The Purchaser and any other third party will be entitled to rely on any and all actions that may be necessary or desirable, as determined taken by Representative, in his sole discretion, in connection with the amendment of this AgreementRepresentative without any liability to, or waiver obligation to inquire of, any of the Sellers. The Purchaser and any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Partythird party is and will be fully protected and indemnified by the Sellers in acting or refraining from acting upon and relying upon any notice, any and all noticesinstruction, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severallydirection, but not jointlyrequest, to contributewaiver, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver receipt or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification paper or investigation, all decisions made by Representative in connection with this Agreement document in writing and that the Purchaser or such other third party in good faith reasonably believes has been signed by the Representative.
(b) . Neither the Representative nor any agent employed by Representative shall of its representatives will be liable to any Seller, any Unitholder or any other Seller Investor Party Person, relating to the performance of the Representative’s duties and obligations under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise otherwise, except to the extent it is finally determined in a final and non-appealable order or judgment by a court of competent jurisdiction by clear and convincing evidence that the acts actions taken or omissions of not taken by the Representative constituted knowing, willful misconduct or fraudand intentional misconduct. The Representative shall and its representatives will be severally (but not jointly) indemnified and held harmless by the Unitholders Sellers, severally (and the other Seller Investor Partiesnot jointly), each in accordance with their respective Securities as set forth on a Pro Rata Share basisSchedule 5.03, from and against any and all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, expenses and all other damages paid or otherwise incurred in connection with any action, suit, proceeding or claim Legal Proceeding to which the Representative is made a party by reason of the fact that the Representative was acting as Representative such pursuant to this Agreement; provided, however, that the Representative shall will not be entitled to indemnification hereunder to the extent it is finally determined in a final and non-appealable order or judgment by a court of competent jurisdiction by clear and convincing evidence that the acts actions taken or omissions not taken by or on behalf of the Representative constituted knowing, willful misconduct or fraudand intentional misconduct. The Representative shall will be fully protected in acting upon any notice, statement or certificate believed by the Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any mattermatter unless such action constitutes knowing, willful and intentional misconduct as determined in a final non-appealable order or judgment by a court of competent jurisdiction. The Representative is serving in that capacity solely for purposes of administrative convenience, and is not liable in such capacity or any other capacity for any of the obligations of the Company or the Sellers hereunder; and the Purchaser agrees that it will not in any event look to the assets of the Representative, acting in such capacity, for the satisfaction of any obligations to be performed by the Company or the Sellers hereunder.
(b) No later than one (1) Business Day prior to the Closing Date, the Representative shall deliver to the Purchaser a written notice designating to the Purchaser the wire instructions and account information for the account (the “Representative’s Account”) into which the Purchaser will, upon the occurrence of the Closing, deposit the Representative’s Fund Amount pursuant to Section 2.02(a). The Representative is authorized to recover from the Representative’s Account any losses, liabilities or expenses (including, for the avoidance of doubt, any out-of-pocket expenses or legal fees) incurred by the Representative and arising out of or in connection with the acceptance or administration of the Representative’s duties under this Agreement, and the Representative shall not draw from the Representative’s Account for any other purpose. The Representative shall have no responsibility or liability for any loss of principal of the Representative’s Account. For Tax purposes, the Representative’s Fund shall be treated as having been received and voluntarily set aside by the Sellers at the time of the Closing. Within five (5) Business Days following the Representative’s receipt of the final portion of the Indemnification Holdback Fund pursuant to Section 12.07(a), the Representative shall distribute the Representative’s Fund to the Sellers in accordance with their respective Pro Rata Percentages.
(c) In the event that the Representative resigns from its position as enters into any arrangement with any Seller or other Person with respect to the Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, ’s authority and rights conferred by or discretion under this Agreement upon (including, for the initial avoidance of doubt, under Schedule A) or any limitations of any sort thereon, the Representatives and the term “Representatives” herein Sellers shall be deemed (i) deliver to include the Purchaser a copy of such proposed arrangement in advance of its adoption or execution, (ii) provide the Purchaser a reasonable opportunity to review such arrangement and (iii) consider in good faith any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant comments that the Purchaser may propose with respect to this Agreementsuch arrangement.
Appears in 1 contract
Sources: Securities Purchase Agreement (New Residential Investment Corp.)
Representative. (a) Seller, each Unitholder andIn addition to the other rights and authority granted to the Representative elsewhere in this Agreement, upon execution and delivery to Purchaser and Parent by virtue of the Acknowledgment and Joinder approval of the requisite Company Stockholders of this Agreement, and pursuant to each Letter of Transmittal, all of the Company Stockholders collectively and irrevocably constitute and appoint the Representative as their agent and representative to act, provided however that the Representative shall have no obligation to the Company Stockholders to act other Seller Investor Party hereby appoints P▇▇▇ ▇▇▇▇ than as its representative expressly provided herein, from and its true after the date hereof and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in to do any and all capacitiesthings and execute any and all documents that may be necessary, in connection with convenient or appropriate to facilitate the consummation of the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes ofincluding: (i) supervising execution of the Closingdocuments and certificates pursuant to this Agreement; (ii) taking any receipt of payments under or pursuant to this Agreement and all actions that may be necessary or desirabledisbursement thereof, as determined contemplated by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices payment of Claim) on their behalfamounts due to the Parent pursuant to this Agreement; (iv) receipt and forwarding of notices and communications pursuant to act for each this Agreement; (v) administration of them with regard the provisions of this Agreement; (vi) giving or agreeing to, on behalf of all or any of the Company Stockholders, any and all consents, waivers, amendments or modifications deemed by the Representative, in its sole and absolute discretion, to matters pertaining to indemnification referred to in be necessary or appropriate under this Agreement and the Escrow Agreement, including the power to compromise execution or delivery of any indemnity claim on their behalfdocuments that may be necessary or appropriate in connection therewith; (vvii) executing and deliveringamending this Agreement or any of the instruments to be delivered to the Parent pursuant to this Agreement; (viii) (A) disputing or refraining from disputing, on behalf of Seller, each Company Stockholder relative to any amounts to be received by such Unitholder and such other Seller Investor PartyCompany Stockholder under this Agreement or any agreements contemplated hereby, any claim made by the Parent under this Agreement or other agreements contemplated hereby, (B) negotiating and all noticescompromising, documents on behalf of each such Company Stockholder, any dispute that may arise under, and exercising or certificates refraining from exercising any remedies available under, this Agreement or any other agreement contemplated hereby and (C) executing, on behalf of each such Company Stockholder, any settlement agreement, release or other document with respect to be executed by any such dispute or remedy; (ix) engaging attorneys, accountants, agents or consultants on behalf of them the Company Stockholders in connection with this Agreement and the Escrow Agreement and the transactions or any other agreement contemplated hereby and therebypaying any fees related thereto; and (vix) if any Company Stockholder as of the Closing is not an accredited investor, serving as “purchaser representative” for such Company Stockholder as such term is defined in Rule 501 of Regulation D. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Representative consistent herewith, shall be absolutely and irrevocably binding on each Company Stockholder as if such Company Stockholder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Company Stockholder’s individual capacity, and no Company Stockholder shall have the right to act for object, dissent, protest or otherwise contest the same.
(b) Notwithstanding Section 5.19(a), in the event that the Representative is of the opinion that it requires further authorization or advice from the Company Stockholders on any matters concerning this Agreement, the Representative shall be entitled to seek such further authorization or advice from the Company Stockholders prior to acting on their behalf. In such event, each of them with regard to matters pertaining to litigation (Company Stockholders shall vote in accordance with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of the Merger Consideration paid to such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under Company Stockholders in accordance with this Agreement and the Escrow authorization of a majority of such Persons shall be binding on all of the Company Stockholders and shall constitute the authorization of the Company Stockholders. The appointment of the Representative as each Company Stockholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other person or persons to represent such Company Stockholder with regard to this Agreement. As The appointment of the representative under this Agreement Representative is coupled with an interest and shall be irrevocable by any Company Stockholder in any manner or for any reason. This authority granted to the Representative shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of any principal pursuant to any applicable Law. ▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund VI, L.P. hereby accepts its appointment as the initial Representative.
(c) The Representative may resign from its position as Representative at any time by written notice delivered to the Parent and the Escrow AgreementCompany Stockholders. If there is a vacancy at any time in the position of the Representative for any reason, Representative such vacancy shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person be filled by a majority vote in accordance with the method set forth in Section 5.19(b).
(d) All acts of the Representative hereunder in its capacity as such shall be deemed to be acts on behalf of the Company Stockholders and not of the Representative individually. Other than as a result of gross negligence or willful misconduct by the Representative, the Representative shall not have any liability for any amount owed to the Parent pursuant to this Agreement. Other than as a result of gross negligence or willful misconduct by the Representative, and Purchaser may rely on such appointment and authority until the receipt of notice of Representative shall not be liable to the appointment Company, the Parent or the Merger Sub, in his or its capacity as the Representative, for any liability of a successor upon two (2) Business Days’ prior written notice Company Stockholder or otherwise, or for anything that it may do or refrain from doing in connection with this Agreement. The Representative shall not be liable to Purchaser. Purchaser the Company Stockholders, in its capacity as the Representative, for any liability of a Company Stockholder or otherwise, or for any error of judgment, or any act done or step taken or omitted by it in good faith, or for any mistake in fact or Law, or for anything that it may conclusively rely upon, without independent verification do or investigation, all decisions made by Representative refrain from doing in connection with this Agreement except in writing the case of the Representative’s gross negligence or willful misconduct. The Representative may seek the advice of legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and signed it shall incur no liability in its capacity as the Representative to the Parent, either Merger Sub, the Company or the Company Stockholders and shall be fully protected with respect to any action taken, omitted or suffered by Representative.
(b) Neither Representative nor any agent employed by it in good faith in accordance with the advice of such counsel. The Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of this Agreement have a fiduciary relationship in respect of any Company Stockholder, and the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence parties acknowledge that the acts or omissions Representative’s obligations under this Section 5.19 are solely as a representative of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine the Company Stockholders and to have been furnished by that the appropriate Person and in acting or refusing to act in good faith on any matter.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the powerno personal responsibility or liability for any expenses, authority and rights conferred costs or other liabilities incurred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreementit in such capacity.
Appears in 1 contract
Sources: Merger Agreement (Office Depot Inc)
Representative. (a) SellerTo the fullest extent permitted by law, each Unitholder and, upon execution Shareholder hereby irrevocably constitutes and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby appoints P▇▇▇▇▇▇ ▇▇▇▇▇▇ as its representative and its true and lawful such Shareholder's attorney-in-fact and agentlegal and judicial representative (the "Representative"), with full powers power of substitution and resubstitutionsubstitution, in its name, place and stead, in any and all capacities, in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking receiving all notices and communications directed to any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them Shareholder under this Agreement and taking any action (or determining to take no action) with respect thereto as the Escrow AgreementRepresentative may deem appropriate, including the settlement or compromise on behalf of any Shareholder of any Third Party Claim or Losses, and (ii) executing and delivering on behalf of any Shareholder all instruments and documents of every kind the Representative may deem necessary or advisable to accomplish the foregoing. As Each Shareholder hereby ratifies and confirms, as the representative under this Agreement and Shareholder's own act, all that the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority do or cause to bind each such Person in accordance with be done pursuant to this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither If the Representative nor any agent employed by Representative resigns, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to automatically become the performance of successor representative (the "Successor Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud"). Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of The resigning Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative 's resignation shall not be entitled effective until the Successor Representative shall have agreed in writing to indemnification hereunder to accept such appointment. If the extent it is finally determined Representative should die or become incapacitated, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall automatically become the Successor Representative. Upon acceptance by a court Successor Representative of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative Successor Representative's appointment, the appointment shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine final and to have been furnished by binding on the appropriate Person and in acting or refusing to act in good faith on any matterShareholders.
(c) In Each Shareholder irrevocably agrees that with respect to any Third Party Claim or any claim for indemnification hereunder, any service of process, writ, judgment or other notice of legal process shall be deemed and held in every respect to be effectively served upon the event that Shareholder if delivered by registered or certified mail, postage prepaid with return receipt requested to the Representative resigns from at the Representative's address set forth in Section 4.1, whom each Shareholder irrevocably appoints as its position authorized agent for service of process.
(d) The death or incapacity of any Shareholder shall not terminate the authority and agency of the Representative.
(e) Each Shareholder hereby agrees to indemnify the Representative and to hold the Representative harmless against any loss, liability or expense incurred without negligent conduct or bad faith on the part of the Representative and arising out of or in connection with his duties as Representative, a successor including court costs and attorneys' fees and expenses incurred by the Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor in defending against any Third Party Claim or Losses in connection with this Agreement, unless the Representative shall have all of received written notice from the power, authority and rights conferred by this Agreement upon other Shareholder to the initial Representatives and effect that the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and Representative no longer represents the other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this AgreementShareholder.
Appears in 1 contract
Representative. (a) Seller, Each Shareholder hereby designates and appoints (and each Unitholder and, upon execution Permitted Transferee of each such Shareholder is hereby deemed to have so designated and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby appoints Pappointed) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ (the “Representative”), acting jointly or individually, as its representative and its true and lawful attorneyattorneys-in-fact and agent, with full powers power of substitution and resubstitutionfor each of them, in its nameto serve as the representative of such Shareholder to perform all such acts as are required, place and stead, in any and all capacities, in connection with the transactions authorized or contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done performed by such Shareholder (including the voting of the Subject Shares in connection accordance with Sections 4(a) and 4(b)), and hereby acknowledges that the transactions Representative shall be authorized to take any action so required, authorized or contemplated by this Agreement. Each such Shareholder further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the death or incapacity of such Shareholder. Each such Shareholder hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder authorizes (and each such Permitted Transferee of such Shareholder shall be deemed to have authorized) the other Seller Investor Party hereby irrevocably appoint Representative as their sole representative parties hereto to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking disregard any and all actions that may be necessary notices or desirable, as determined other action taken by Representative, in his sole discretion, in connection with the amendment of such Shareholder pursuant to this Agreement, except for notices and actions taken by the Representative. Purchaser is and will be entitled to rely on any action so taken or waiver of any provision in this Agreement; (iii) accepting notice given by the Representative and is and will be entitled and authorized to give notices (including, without limitation, Notices of Claim) on their behalf; (iv) only to act the Representative for each of them with regard to matters pertaining to indemnification referred to in any notice contemplated by this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed given to any such Shareholder. A successor to the Representative may be chosen by any of them a majority in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice interest of the appointment of a successor upon two (2) Business Days’ prior written Shareholders; provided that notice thereof is given by the new Representative to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor Notwithstanding the generality of Section 6(a), each Shareholder hereby constitutes and appoints the Representative, with full power of substitution, as the proxy pursuant to the provisions of the Maryland General Corporation Law and attorney of such Shareholder, and hereby authorizes and empowers the Representative, acting individually or jointly, to represent, vote and otherwise act (by voting at any agent employed meeting of the shareholders of the Company, by Representative written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Shareholder regarding the matters referred to in Sections 4(a) and 4(b) until the termination of this Agreement, to the same extent and with the same effect as such Shareholder might or could do under applicable law, rules and regulations. The proxy granted pursuant to the immediately preceding sentence is coupled with an interest and shall be liable irrevocable. Each Shareholder hereby revokes any and all previous proxies or powers of attorney granted with respect to Seller, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined Subject Shares owned or held by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any mattersuch Shareholder.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Sources: Voting Agreement (Morgan Stanley)
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent Each of the Acknowledgment Sellers hereby constitutes and Joinder appoints the Representative to act as the Representative under this Agreement and the Minority Sellers' Incremental Tax Payment Escrow Agreement, as and to the extent provided herein and therein. Each of the Sellers agrees to indemnify and hold harmless the Representative by reason of his acting or failing to act in connection with any of the transactions contemplated hereby or by the Minority Sellers' Incremental Tax Payment Escrow Agreement and against any loss, liability or expense the Representative may sustain or incur as a result of serving as Representative hereunder or under the Minority Sellers' Incremental Tax Payment Escrow Agreement, except such losses, liabilities and expenses which are determined in an arbitration proceeding to have resulted primarily from the gross negligence or willful misconduct of the Representative. Each of the Sellers agrees that the Representative shall have no liability whatsoever to any Seller or such Seller's beneficiaries, heirs or personal representatives for any matters arising out of this Agreement or the Minority Sellers' Incremental Tax Payment Escrow Agreement except, in the case of the Sellers, for liability for such matters which are determined in an arbitration proceeding to have resulted primarily from the gross negligence or willful misconduct of the Representative. Each of the Sellers hereby agrees to reimburse the Representative upon the request of the Representative for all reasonable expenses, disbursements and advances incurred or made by the Representative in the performance of his duties under this Agreement or under the Minority Sellers' Incremental Tax Payment Escrow Agreement. The Representative shall have the authority to act on behalf of and to bind each other Seller Investor Party hereby appoints Pof the Sellers for purposes of the provisions of this Agreement and the Minority Sellers' Incremental Tax Payment Escrow Agreement to the extent set forth in this Agreement and the Minority Sellers' Incremental Tax Payment Escrow Agreement, respectively.
(b) The initial Representative hereunder shall be ▇▇▇▇▇ ▇▇▇▇ as its representative and its true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person▇▇▇▇▇. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter.
(c) In the event that Representative resigns from its position ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, for any reason, shall fail or be unable to continue to serve as Representative, a whether by reason of his death, incapacity, resignation or otherwise, then the successor Representative shall be appointed elected by holders of a Majority-in-Interest as promptly as practicablemajority of the Seller Percentages reflected on Exhibit A hereto. Each The rights, powers, privileges and obligations of the Representative named hereunder shall be possessed by any successor Representative shall have all of with the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any same effect as though such successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant had originally been a party to this Agreement. The word "Representative" as used in this Agreement means the Representative or any successor representative acting hereunder.
Appears in 1 contract
Representative. (a) SellerEach THL Entities hereby designates and appoints (and each Permitted Transferee of each such THL Entities is hereby deemed to have so designated and appointed) each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, each Unitholder and, upon execution and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby appoints P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇, as its representative and its true and lawful his attorney-in-fact and agent, with full powers power of substitution and resubstitutionfor each of them (the "THL Entities' Representative"), in its nameto serve as the representative of each such person to perform all such acts as are required, place and stead, in any and all capacities, in connection with the transactions authorized or contemplated by this Agreement to be performed by such person and hereby acknowledges that the Escrow AgreementTHL Entities' Representative shall be the only person authorized to take any action so required, granting unto said authorized or contemplated by this Agreement by each such person. Each such person further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the death or incapacity of such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the other parties hereto to disregard any notice or other action taken by such person pursuant to this Agreement except for the THL Entities' Representative. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the THL Entities' Representative and are and will be entitled and authorized to give notices only to the THL Entities' Representative for any notice contemplated by this Agreement to be given to any such person. A successor to the THL Entities' Representative may be chosen by a majority in interest of the THL Entities' Shareholders, provided that notice thereof is given by the new THL Entities' Representative to the Company and to each Non-THL Shareholder.
(b) Each DLJ Entities hereby designates and appoints (and each Permitted Transferee of each such DLJ Entities' is hereby deemed to have so designated and appointed) DLJ Merchant Banking II, Inc., as his attorney-in-fact and agent, with full power and authority of substitution for each of them (the "DLJ Entities' Representative"), to do and serve as the representative of each such person to perform each and every act and thing requisite and necessary all such acts (other than voting of shares of Common Stock) as are required, authorized or contemplated by this Agreement to be done in connection with performed by such person and hereby acknowledges that the transactions DLJ Entities' Representative shall be the only person authorized to take any action so required, authorized or contemplated hereby and thereby as fully to all intents and purposes as it might or could do in by this Agreement by each such person. Without limiting the foregoing, Seller, each Unitholder Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the other Seller Investor Party parties hereto to disregard any notice or other action taken by such person pursuant to this Agreement except for the DLJ Entities' Representative. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the DLJ Entities' Representative and are and will be entitled and authorized to give notices only to the DLJ Entities' Representative for any notice contemplated by this Agreement to be given to any such person. A successor to the DLJ Entities' Representative may be chosen by a majority in interest of the DLJ Entities' Shareholders, provided that notice thereof is given by the new DLJ Entities' Representative to the Company and to each other DLJ Entity Shareholder.
(c) Each ▇▇▇▇▇▇▇ ▇▇▇▇▇ Entities hereby irrevocably appoint Representative designates and appoints (and each Permitted Transferee of each such ▇▇▇▇▇▇▇ ▇▇▇▇▇ Entities is hereby deemed to have so designated and appointed) KECALP Inc., as their sole representative to act as the his attorney-in-fact and agent and on behalf with full power of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act substitution for each of them with regard (the "▇▇▇▇▇▇▇ ▇▇▇▇▇ Entities Representative"), to matters pertaining serve as the representative of each such person to indemnification referred to in perform all such acts as are required, authorized or contemplated by this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed performed by such person and hereby acknowledges that the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Entities Representative shall be the only person authorized to take any of them in connection with action so required, authorized or contemplated by this Agreement by each such person. Each such person further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the Escrow death or incapacity of such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the other parties hereby to disregard any notice or other action taken by such person pursuant to this Agreement except for the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Entities Representative. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the transactions ▇▇▇▇▇▇▇ ▇▇▇▇▇ Entities Representative and are and will be entitled and authorized to give notices only to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Entities Representative for any notice contemplated by this Agreement to be given to any such person. A successor to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Entities Representative may be chosen by a majority in interest of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Entities' Shareholders, provided that notice thereof is given by the new ▇▇▇▇▇▇▇ ▇▇▇▇▇ Entities Representative to the Company and to each other ▇▇▇▇▇▇▇ ▇▇▇▇▇ Entity Shareholder.
(d) Each Management Shareholder hereby designates and thereby; appoints (viand each Permitted Transferee of each such Management Shareholder is hereby deemed to have so designated and appointed) to act ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as his attorney-in-fact with full power of substitution for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly"Management Representative"), to contributeserve as the representative of each such person to perform all such acts as are required, in respect of any amounts paid (authorized or required contemplated by this Agreement to be paid) in settlement or compromise of performed by such matters, their pro rata portion of such amounts based on their Pro Rata Share); person and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and hereby acknowledges that the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Management Representative shall be liable the only person authorized to Sellertake any action so required, any Unitholder authorized or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred contemplated by this Agreement upon by each such person. Each such person further acknowledges that the initial Representatives foregoing appointment and the term “Representatives” herein designation shall be deemed to include be coupled with an interest and shall survive the death or incapacity of such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the other parties hereby to disregard any successor Representative. “Majority-in-Interest” means Unitholders and notice or other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid action taken by such person pursuant to this AgreementAgreement except for the Management Representative. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the Management Representative and are and will be entitled and authorized to give notices only to the Management Representative for any notice contemplated by this Agreement to be given to any such person. A successor to the Management Representative may be chosen by a majority in interest of the Management Shareholders, provided that notice thereof is given by the new Management Representative to the Company and to each other Management Shareholder.
Appears in 1 contract
Sources: Investors' Agreement (Fisher Scientific International Inc)
Representative. (i) Each Seller hereby irrevocably appoints the Representative to serve as the representative of the Sellers with respect to the matters expressly set forth in this Agreement to be performed by the Representative. Each Seller hereby irrevocably appoints the Representative as the agent, proxy and attorney in fact for such Seller for all purposes of this Agreement, including full power and authority on such Seller’s behalf to (a) Sellerconsummate the Transactions, each Unitholder and, upon execution and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby appoints P▇▇▇ ▇▇▇▇ as its representative and its true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, (b) pay expenses (whenever incurred) in connection with the transactions contemplated Transactions, (c) disburse any funds received hereunder to the Sellers or other payees, (d) execute and deliver on behalf of such Seller any amendment or waiver hereto, (e) take all other actions to be taken by or on behalf of such Seller in connection herewith, (f) negotiate, settle, compromise and otherwise handle any claims made by an Indemnified Party and (g) do each and every act and exercise any and all rights which such Seller is, or the Sellers collectively are, permitted or required to do or exercise under this Agreement or any other Transaction Document. All decisions, actions, consents and instructions of the Escrow AgreementRepresentative may be relied upon by Purchaser and its Affiliates and any other Person.
(ii) The Representative will not be liable to Purchaser or the Sellers in its capacity as the Representative for any Liability of a Seller or for any error of judgment, granting unto said attorney-in-or for any act done or step taken or omitted by the Representative in good faith or for any mistake in fact or law, or for anything that it may do or refrain from doing in connection with this Agreement except in the case of actual fraud by it. The Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and agentit will incur no Liability in its capacity as Representative to Purchaser or the Sellers and will be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the opinion of such counsel. The Representative may in good faith rely conclusively on information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Representative based on such reliance will be deemed conclusively to have been taken in good faith. The Representative will have full power and authority to do interpret all the terms and perform each provisions of this Agreement or any other agreement in connection herewith and every act to consent to any amendment hereof or thereof for, in the name and thing requisite on behalf of all such Sellers and necessary to be done such successors.
(iii) Any expenses or liabilities incurred by the Representative in connection with the transactions contemplated hereby performance of its duties under this Agreement will not be the personal obligation of the Representative but will be payable by the Sellers jointly and thereby as fully severally. No provision of this Agreement or any other agreement in connection herewith will require the Representative to all intents and purposes as it might expend or could do risk its own funds or otherwise incur any financial Liability in person. Without limiting the foregoingexercise or performance of any of its powers, Sellerrights, each Unitholder and each duties or privileges under this Agreement or any other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and agreement in connection herewith on behalf of each of them for any Seller.
(iv) The Sellers, jointly and severally, will indemnify, defend and hold harmless the purposes of: (i) supervising the Closing; (ii) taking Representative and its successors and assigns from and against any and all actions that may be necessary Losses arising out of or desirable, as determined by Representative, in his sole discretion, in connection with the amendment Representative’s execution and performance (solely in its capacity as the Representative) of this Agreement, in each case as such Losses are incurred or waiver of any provision in this Agreement; (iii) accepting notices (includingsuffered, without limitation, Notices of Claim) on their behalf; (iv) except for actual fraud by the Representative. Subject to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contributeforegoing, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and no event will the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder Seller (or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement its successors) for any errors in judgmentindirect, negligencepunitive, oversight, breach special or consequential damages. This indemnification will survive the termination of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent Each of the Acknowledgment Principals and Joinder Agreement, each other Seller Investor Party IMS Holdco hereby appoints P▇▇▇ ▇▇▇▇ as his, her or its representative exclusive agent and its true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with (the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: "Representative") (i) supervising to give and receive notices and communications with respect to the Closing; provisions of this Agreement, (ii) taking to amend the terms of this Agreement, (iii) to agree to, negotiate, enter into settlements or compromises of matters arising under the provisions of this Agreement, and (iv) to take any and all actions that may be necessary or desirable, as determined by Representative, appropriate in his sole discretion, in connection with the amendment judgment of the Representative to be taken on behalf of the Principals and IMS Holdco under such provisions of this Agreement, or waiver . Such agency and that of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them successor representative is irrevocable and coupled with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreementan interest; provided, however, the Representative shall have no authority to act on behalf of any Principal or IMS Holdco with respect to an indemnity claim under Section 7.2.2. In the event the Representative refuses to, or is no longer capable of, serving as the Representative hereunder, the other Principals shall promptly appoint a successor Representative who shall thereafter be the successor Representative hereunder and the Representative shall serve until such successor is duly appointed and qualified to act hereunder. The Principals and IMS Holdco hereby agree that the Representative shall not be entitled to indemnification hereunder have any liability to the extent it is finally determined by a court Company or any of competent jurisdiction by clear and convincing evidence that the acts its subsidiaries, if any, for any action he takes or omissions of Representative constituted willful misconduct omits to take hereunder (or fraud. Representative shall be protected under any agreement or instrument referred to herein) in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter.
(c) In the event that Representative resigns from its position his capacity as Representative, a successor unless such action or omission constitutes bad faith or willful misconduct by the Representative. Notices or communications to or from the Representative shall be appointed by a Majority-in-Interest as promptly as practicableconstitute notice to or from the Principals and/or IMS Holdco in respect of matters relating to this Agreement. Each successor Any decision, act, consent or instruction of the Representative shall have constitute a decision of all of the powerPrincipals and IMS Holdco, authority and rights conferred by this Agreement shall be final, binding and conclusive upon the initial Representatives each Principal and IMS Holdco, and the term “Representatives” herein shall be deemed to include Purchaser may rely upon any successor Representative. “Majority-in-Interest” means Unitholders decision, act, consent or instruction of the Representative as being the decision, act, consent or instruction of IMS Holdco and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreementeach and every Principal.
Appears in 1 contract
Sources: Membership Unit Purchase Agreement (MDC Partners Inc)
Representative. (a) SellerIn order to efficiently administer the transactions contemplated hereby, each Unitholder and, upon execution and delivery to Purchaser and Parent including (i) the determination of the Acknowledgment Final Closing Adjustment and Joinder the Adjusted Transaction Consideration, (ii) the waiver of any condition to the obligations of the Equity Holders to consummate the transactions contemplated hereby and (iii) the dispute, defense and/or settlement of any claims for which the Equity Holders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to this Agreement, each the Principal Stockholders, by their execution of this Agreement, and the other Seller Investor Party Equity Holders, by the approval of the Merger and adoption of this Agreement and/or their acceptance of any consideration pursuant to this Agreement, hereby appoints P▇▇▇ ▇▇▇▇ designate the Representative as its representative and its true and lawful their representative, attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed The Principal Stockholders, by Representative shall be liable to Sellertheir execution of this Agreement, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor PartiesEquity Holders, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason approval of the fact that Representative was acting as Representative Merger and adoption of this Agreement and/or their acceptance of any consideration pursuant to this Agreement; provided, however, that hereby authorize the Representative shall not be entitled (i) to indemnification hereunder make all decisions relating to the extent it is finally determined by a court determination of competent jurisdiction by clear the Final Closing Adjustment and convincing evidence that the acts Adjusted Transaction Consideration pursuant to Section 1.9, (ii) to take all action necessary in connection with the waiver of any condition to the obligations of the Company and the Equity Holders to consummate the transactions contemplated hereby, or omissions the dispute, defense and/or settlement of Representative constituted willful misconduct any claims for which the Equity Holders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, (iii) to give and receive all notices permitted or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative required to be genuine given under this Agreement, (iv) to execute and deliver the Escrow Agreement and (v) to have been furnished take any and all additional action as is contemplated to be taken by or on behalf of the Equity Holders by the appropriate Person and in acting or refusing to act in good faith on any matterterms of this Agreement.
(c) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from its position as Representativesuch position, a successor Representative shall be appointed the Equity Holders (acting by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all the vote of the powerCompany Stockholders who immediately prior to the Effective Time held at least a majority of the outstanding Company Shares held by all Company Stockholders (voting on an as-converted to Common Share basis)) shall select another representative to fill the vacancy of the Representative initially chosen by the Company Stockholders, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein such substituted representative shall be deemed to include be the Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(d) All decisions and actions of the Representative on behalf of the Equity Holders shall be deemed to be facts ascertainable outside of this Agreement and shall be binding upon all Equity Holders, and no Equity Holder shall have the right to object, dissent, protest or otherwise contest the same. A decision, act, consent, instruction or action of the Representative, including any successor agreement between the Representative and the Buyer relating to the determination of the Final Closing Adjustment, the Adjusted Transaction Consideration or the dispute, defense or settlement of any claims for which the Equity Holders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, shall constitute a decision, act, consent, instruction or action of all Equity Holders and shall be binding and conclusive upon each of such Equity Holders and the Parties, the Surviving Corporation and the Escrow Agent may rely upon any such decision, act, consent, instruction or action as being the decision, act, consent or instructions of each and every such Equity Holder. The Buyer, the Surviving Corporation and the Escrow Agent are hereby relieved from any liability to any Equity Holder for any acts done by them in accordance with such decision, act, consent, instruction or action of the Representative.
(e) The Representative will receive no compensation for services as the Representative except as set forth in that certain Engagement Agreement to be entered into among the Representative and certain Company Stockholders. “Majority-in-Interest” means Unitholders The Equity Holders will pay all (i) professional fees and expenses of any attorney, accountant or other advisors or expert retained by the Representative and other Seller Investor Parties thatreasonable out-of-pocket expenses incurred by the Representative in connection with the performance of the Representative’s duties under this Agreement and the Escrow Agreement and (ii) any and all losses, liabilities, damages, claims, penalties, fines, forefeitures, actions, fees, costs and expenses actually incurred or suffered by the Representative in connection with this Agreement or the Escrow Agreement as the Representative (collectively, receive the “Representative Expenses”) in each case as such Representative Expense is suffered or incurred; provided, that in the event any such Representative Expense is finally adjudicated to have been directly caused by the fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Equity Holders the amount of such indemnified Representative Expense to the extent attributable to such fraud, gross negligence or willful misconduct. Such Representative Expenses may only be recovered by the Representative from (i) the Representative Expense Fund, (ii) the Escrow Fund (as set forth below) and (iii) the Equity Holders directly; provided that while this Section allows the Representative to be paid from the Representative Expense Fund and the Escrow Fund, this does not less than 50.1% relieve the Equity Holders from their obligation to promptly pay such Representative Expenses as such Representative Expenses are actually suffered or incurred, nor does it prevent the Representative from seeking any remedies against the Equity Holders available to it at law or otherwise. In no event will the Representative be required to advance its own funds on behalf of Purchase Price paid the Equity Holders or otherwise. Following the exhaustion of the Representative Expense Fund and the expiration of the Representative Period and the resolutions of all pending claims related thereto (and, for the avoidance of doubt, at no time prior thereto), the Representative shall have the right to recover Representative Expenses from the Escrow Fund prior to any distribution to the Equity Holders. The Equity Holders will on an individual and several basis (and not jointly as to or with any other Equity Holder) indemnify, defend, hold harmless and reimburse, on an Equity Holder Pro Rata Basis, the Representative for Representative Expenses, in each case as such Representative Expenses are incurred. Notwithstanding the foregoing, the Representative shall first seek reimbursement and recovery from the Representative Expense Fund, and only thereafter directly from the Equity Holders in accordance with the terms of this Agreement. The Equity Holders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Representative or the termination of this Agreement, and the Representative and the Equity Holders acknowledge and agree that the provisions of this paragraph (e) shall impose no obligations on the Company, the Surviving Corporation, the Buyer or any of their respective Affiliates.
(f) By his, her or its execution of this Agreement, each Principal Stockholder, and by their approval of the Merger and adoption of this Agreement, and/or their acceptance of any consideration pursuant to this Agreement, each other Equity Holder, agrees that:
(i) the Buyer shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Final Closing Adjustment and the Adjusted Transaction Consideration, the settlement of any claims for indemnification by the Buyer and/or the Surviving Corporation pursuant to Article VI or any other actions required or permitted to be taken by the Representative hereunder, and no party shall have any cause of action against the Buyer for any action taken by the Buyer in reliance upon the instructions or decisions of the Representative;
(ii) no Equity Holder shall have any cause of action against the Representative for, and the Representative shall have no liability to any Equity Holder in connection with, any action taken or omitted, decision made or instruction given by the Representative under this Agreement, except in the event of liability directly resulting from fraud, gross negligence or willful misconduct on the part of the Representative;
(iii) each such Equity Holder will, on an individual and several basis based on their Equity Holder Pro Rata Basis (and not jointly as to or with any other Equity Holder) indemnify, defend and hold harmless the Representative in accordance with Section 1.11(e) above; provided, that that Representative shall first seek recovery from the Representative Expense Fund;
(iv) the provisions of this Section 1.11 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Equity Holder may have in connection with the transactions contemplated by this Agreement;
(v) remedies available at Law for any breach of the provisions of this Section 1.11 are inadequate; therefore, the Buyer and the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either the Buyer and/or the Surviving Corporation brings an action to enforce the provisions of this Section 1.11; and
(vi) the provisions of this Section 1.11 shall be binding upon the executors, heirs, legal representatives, personal representatives, successors and permitted assigns of each Equity Holder, and any references in this Agreement to an Equity Holder or the Equity Holders shall mean and include the successors to the Equity Holder’s rights hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
Appears in 1 contract
Representative. (a) Seller, each Unitholder and, upon execution Each Seller hereby irrevocably constitutes and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby appoints PSh▇▇▇▇ ▇▇▇▇▇▇▇ as its representative ▇s the Representative, for the purpose of performing and its true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with consummating the transactions contemplated by this Agreement Agreement. The appointment of Sh▇▇▇▇ ▇▇▇▇▇▇▇ ▇s the Representative is coupled with an interest and all authority hereby conferred shall be irrevocable and the Escrow Agreement, granting unto said attorney-in-fact Representative is hereby authorized and agent, full power directed to perform and authority to do and perform each and every act and thing requisite and necessary to be done in connection with consummate on behalf of Sellers all of the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by The Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against pay all costs and expenses incurred by Representative or on behalf of the Representative, in the course of performance of Representative’s duties hereunder and losseshis capacity as such, including costs of defense, paid or and expenses incurred in connection with any action, suit, proceeding pending or threatened dispute or claim with respect to which Representative is made a party by reason of the fact that Representative was acting as Representative this Agreement, any other Transaction Document or any agreement, document or instrument entered into pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to or the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraudtransactions contemplated hereby. The Representative shall be protected reimbursed for all such fees, costs and expenses (including reasonable attorneys’ fees, costs and expenses) first from the Representative Expense Fund Amount and thereafter from the Sellers pro rata in acting upon any noticeaccordance with their Ownership Percentages. In connection with the foregoing, statement at the Closing, the Representative Expense Fund Amount shall be transferred by or certificate believed on behalf of the Buyer to the Representative, to be used by the Representative to be genuine and to have been furnished pay expenses incurred by the appropriate Person and Representative in acting his or refusing her capacity as the Representative. Once the Representative determines, in his or her sole discretion, that the Representative will not incur any additional expenses in its capacity as the Representative, then the Representative will distribute the remaining unused Representative Expense Fund Amount, if any, to act the Sellers in good faith on any matteramounts proportionate to their respective Ownership Percentages.
(c) In Not by way of limiting the event that Representative resigns from its position as authority of the Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have each and all of Sellers, for themselves and their respective heirs, executors, administrators, successors and assigns, hereby authorize the power, authority and rights conferred by Representative to:
(i) waive any provision of this Agreement upon which the initial Representatives Representative deems necessary or desirable;
(ii) execute and the term “Representatives” herein shall deliver on Sellers’ behalf all documents and instruments which may be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders executed and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid delivered pursuant to this Agreement, including without limitation the Acquired Shares and any transfer documentation with respect thereto;
(iii) calculate, negotiate and agree to any adjustments to the Purchase Price;
(iv) make and receive notices and other communications pursuant to this Agreement and service of process in any legal action or other Proceeding arising out of or related to this Agreement or any of the transactions contemplated hereunder;
(v) contest, negotiate, defend, compromise or settle any action, claims or disputes arising out of or related to this Agreement or any of the transactions contemplated hereunder through counsel selected by the Representative and solely at the cost, risk and expense of Sellers;
(vi) satisfy any indemnification amounts owed pursuant to the terms herein;
(vii) agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to such indemnification obligations or actions, claims or disputes;
(viii) resolve any actions, claims or disputes arising from Sellers indemnification obligations hereunder;
(ix) take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated hereby by arbitration, settlement or otherwise;
(x) receive and distribute all or any portion of the Purchase Price or any other payment owing to Sellers hereunder in accordance with the terms herein or therein;
(xi) appoint or provide for successor agents;
(xii) select, retain, hire and consult with legal counsel, independent public accountants and other experts, solely at the cost and expense of Sellers;
(xiii) pay expenses incurred or which may be incurred by or on behalf of Sellers in connection with this Agreement; and
(xiv) take or forego any or all actions permitted or required of any Sellers or necessary in the judgment of the Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement.
(d) Each Seller agrees that the Representative shall have no Liability to Sellers for any act or omission by the Representative as permitted under this Section, excepting only actions taken in bad faith, and each Seller hereby irrevocably waives and releases any claims it may have against the Representative for his acts and omissions hereunder other than any actions taken in bad faith.
(e) EACH SELLER UNDERSTANDS AND ACKNOWLEDGES THAT HE OR SHE IS: (A) AUTHORIZING THE REPRESENTATIVE TO ACT FOR THE SELLERS, COLLECTIVELY AND INDIVIDUALLY, WITH BROAD POWERS; AND (B) AGREEING THAT THE REPRESENTATIVE WILL NOT BE LIABLE TO THE SELLERS, COLLECTIVELY OR INDIVIDUALLY, UNLESS THE REPRESENTATIVE ACTS IN BAD FAITH. EACH SELLER FURTHER ACKNOWLEDGES THAT HE OR SHE HAS BEEN ADVISED TO SEEK INDEPENDENT AND SEPARATE COUNSEL PRIOR TO SIGNING THIS AGREEMENT AND HAS HAD THE OPPORTUNITY TO DO SO.
(f) In the event of the failure or refusal of Sh▇▇▇▇ ▇▇▇▇▇▇▇ ▇o act as the Representative (or upon the death or incapacity (mental or physical) for more than 14 days of Sh▇▇▇▇ ▇▇▇▇▇▇▇ ▇r any successor), the remaining Seller that is an individual shall be deemed the Representative for purposes of this Section 11.17 and the Agreement.
(g) All actions taken by the Representative under this Agreement shall be binding upon each Seller and its successors as if expressly confirmed and ratified in writing by each of them and all defenses which may be available to any Seller to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement or any other Transaction Document are waived. Buyer shall serve notice to the Representative with respect to any and all matters concerning any Seller arising out of or related to this Agreement, the Transaction Documents or the Transaction.
(h) Buyer shall be entitled to rely conclusively (without further evidence of any kind whatsoever) upon any document or other paper delivered by the Representative as being authorized by each Seller, as applicable. All decisions and actions by the Representative, including any agreement between the Representative and Buyer relating to (i) the determination of the Estimated Cash Purchase Price and the Final Cash Purchase Price pursuant to Section 1.3 (ii) the defense or settlement of any claims for which Sellers, as applicable, may be required to indemnify Buyer Indemnified Parties pursuant to Article 9 hereof, (iii) any amendment, supplement, or modification of this Agreement and any waiver of any claim or right arising out of this Agreement, discharging Liabilities and obligations, and (iv) the performance of all things and acts, including executing and delivering all agreements, certificates, receipts, instructions, and other instruments contemplated by or deemed advisable to effectuate the provisions of this Section 11.17, shall be binding upon each Seller, and no Seller shall have the right to object, dissent, protest or otherwise contest the same.
Appears in 1 contract
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby appoints P▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Representative”) is hereby designated by each of the Shareholders to serve as its the representative of the Shareholders with respect to the matters expressly set forth in this Agreement to be performed by the Representative. Each of the Shareholders, by execution of this Agreement, hereby irrevocably appoints the Representative as the agent, proxy and its true and lawful attorney-in-fact for such Shareholder for all purposes of this Agreement, including full power and agentauthority on such Shareholder’s behalf (a) to consummate the transactions contemplated herein, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, (b) to pay such Shareholder’s expenses (whether incurred on or after the date hereof) incurred in connection with the transactions contemplated by negotiation and performance of this Agreement and the Escrow Agreement, granting unto said attorney-in-fact (c) to disburse any funds received hereunder to such Shareholder and agentto each other Shareholder, full power (d) to execute and authority deliver any certificates representing the Company’s shares of beneficial interest and execution of such further instruments as Merger Corp. shall reasonably request, (e) to execute and deliver on behalf of such Shareholder any amendment or waiver hereto, (f) to take all other actions to be taken by or on behalf of such Shareholder in connection herewith, (g) to negotiate, settle, compromise and otherwise handle all claims for indemnification made by any Indemnitee pursuant to Section 9.1 hereof and (h) to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking exercise any and all actions that may be necessary rights which such Shareholder or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (Shareholders collectively are permitted or required to be paid) in settlement do or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them exercise under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice Each of the appointment Shareholders agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Representative and shall survive the death, incapacity or bankruptcy of any Shareholder. The Representative has a successor upon two (2) Business Days’ prior written notice duty to Purchaser. Purchaser may conclusively rely uponserve in good faith and to perform its designated role under the Agreement but, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither neither the Representative nor any agent employed by Representative him shall be liable incur any liability to Seller, any Unitholder or any other Seller Investor Party Shareholder relating to the performance of Representative’s his duties under this Agreement hereunder except for any errors in judgmentactions or omissions constituting fraud, negligence, oversight, breach bad faith or willful misconduct. Upon the death or disability of duty ▇▇▇▇▇▇▇ ▇▇▇▇▇ or otherwise except the resignation of ▇▇▇▇▇▇▇ ▇▇▇▇▇ as Representative (such resignation shall only be effective upon delivery of written notice to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders Shareholders and the other Seller Investor PartiesSurviving Trust), on a Pro Rata Share basis, against all costs and expenses incurred by ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall become the designated Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matterhereunder.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Broder Bros Co)
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby Each Shareholder irrevocably appoints P▇▇▇ ▇▇▇▇ (the “Representative”) with power of designation and assignment as its representative and its true and lawful attorney-in-fact and agent, agent with full powers power of substitution substitution, to act solely and resubstitutionexclusively on behalf of, and in the name of, such Shareholder with the full power, without the consent of such Shareholder, to exercise as the Representative in its namesole discretion deems appropriate, place the powers which such Shareholder could exercise under the provisions of this Agreement and stead, to take all actions necessary or appropriate in any and all capacities, the judgment of the Representative in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full which shall include the power and authority to do and perform each and every act and thing requisite and necessary to be done in connection amend, modify, waive or provide consent with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoingrespect to, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreementto execute, including the power to compromise any indemnity claim on their behalf; (v) executing deliver and delivering, on behalf of Seller, accept such Unitholder waivers and such other Seller Investor Party, consents and any and all notices, documents documents, certificates or certificates other papers to be executed by any of them delivered in connection with this Agreement and the Escrow Agreement and consummation of the transactions contemplated hereby as the Representative, in its sole discretion, may deem necessary or desirable; provided that the Representative may not amend this Agreement without the consent of such Shareholder if the consideration to be received by such Shareholder pursuant to Article II hereof will be reduced by the proposed amendment or if such Shareholder will be disproportionately and thereby; (vi) adversely affected by the proposed amendment relative to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severallyShareholders of the same class. The Representative shall have the power to waive, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow AgreementShareholder, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative any attorney-client privileges in connection with this Agreement communications between such Shareholder and counsel to the Acquired Companies in writing connection with the transactions contemplated hereunder. The Buyer and signed the Buyer Indemnitees, if applicable, will be entitled to rely exclusively upon any notices and other acts of the Representative as being legally binding acts of each Shareholder individually and the Shareholders collectively. The appointment and power of attorney granted by Representativeeach Shareholder to the Representative shall be deemed coupled with an interest and all authority conferred hereby shall be irrevocable whether by death or incapacity of any such Shareholder or the occurrence of any other event or events.
(b) Neither Each Shareholder acknowledges and agrees that the Representative nor any agent employed by Representative shall will not be liable to Sellersuch Shareholder for any act done or omitted hereunder as the Representative while acting in good faith and in the exercise of reasonable judgment, and any Unitholder act done or any other Seller Investor Party relating omitted pursuant to the performance advice of counsel will be conclusive evidence of such good faith. The Shareholders will jointly and severally indemnify the Representative and hold it harmless against any Losses incurred without gross negligence or bad faith on the part of the Representative and arising out of or in connection with the acceptance or administration of its duties under this Agreement.
(c) The Shareholders will reimburse the Representative for their pro rata share, of any out-of-pocket, independent, third-party fees and expenses (including fees and expenses of counsel, accountants and other advisors) incurred by the Representative that arise out of or are in connection with the acceptance or administration of the Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Sources: Share Purchase Agreement (ALPHA & OMEGA SEMICONDUCTOR LTD)
Representative. (a) SellerEach Seller hereby authorizes, each Unitholder and, upon execution directs and delivery appoints Restaurant Holdings to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby appoints P▇▇▇ ▇▇▇▇ act as its representative sole and its true and lawful exclusive agent, attorney-in-fact and agent, with full powers of substitution representative (the “Representative”) and resubstitution, in its name, place authorizes and stead, in any and all capacities, in connection with directs the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority Representative to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (ia) supervising the Closing; (ii) taking take any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and deliveringdelivering any documents (including any amendment or modification to this Agreement), incurring any costs and expenses on behalf of Seller, such Unitholder Seller and such other Seller Investor Party, making any and all notices, documents determinations) which may be required or certificates permitted by this Agreement to be executed taken by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and therebysuch Seller; (vib) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval make decisions on behalf of each of them under such Seller with respect to the transactions and other matters contemplated by this Agreement or the other Transaction Documents, including regarding adjustments to the Estimated Aggregate Purchase Price and the Escrow Agreement. As management, negotiation, settlement and compromise of indemnification claims or demand litigation or arbitration with respect to any third-party suits or claims by the representative under this Agreement Purchaser for indemnification; (c) exercise such other rights, power and the Escrow Agreementauthority, Representative shall act as the agent for Sellerare authorized, all Unitholders delegated and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating granted to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; providedand (d) exercise such rights, howeverpower and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Representative consistent therewith, shall be absolutely and irrevocably binding on each such Seller as if such Seller personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Seller’s capacity. Each Seller agrees that the Representative shall not be liable for any actions taken or omitted to be taken under or in connection with this Agreement or the transactions contemplated hereby, except for such actions taken or omitted to be taken resulting from the Representative’s willful misconduct. Purchaser shall be entitled to indemnification hereunder to deal exclusively with the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Seller by the Representative, and on any other action taken or purported to be taken on behalf of any such Seller by the Representative as fully binding upon each such Seller.
Appears in 1 contract
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent Each of the Acknowledgment and Joinder Agreement, each other Seller Investor Party Sellers hereby appoints PM▇▇▇▇▇ ▇▇▇▇ as its representative ▇▇▇▇, his agent and its true and lawful attorney-in-fact and agentfact, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent Sellers’ representative (the “Representative”) for and on behalf of each the Sellers, to give and receive notices and communications, to authorize payment to Procera of them for Escrow Shares from the purposes Escrow Fund in satisfaction of claims by Procera, to object to such payments, to agree to, negotiate, enter into settlements and compromises of: , and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all other actions that are either (i) supervising necessary or appropriate in the Closing; judgment of the Representative for the accomplishment of the foregoing, or (ii) taking any and all actions that may be necessary or desirable, as determined specifically mandated by Representative, in his sole discretion, in connection with the amendment terms of this Agreement, or waiver of any provision in this Agreement; . Such agency may be changed by the Sellers from time to time upon not less than thirty (iii30) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ days prior written notice to PurchaserProcera; provided, however, that the Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. Purchaser Any vacancy in the position of Representative may conclusively rely uponbe filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Representative, without independent verification and the Representative shall not receive compensation for his services. Notices or investigationcommunications to or from the Representative shall constitute notice to or from the Sellers. The Escrow Agent shall have no duty to recognize a successor Representative, all decisions made by and shall incur no liability and shall be fully protected in failing to recognize the actions of the successor Representative, unless and until it has received written notice of the identity of such successor Representative in connection with this Agreement in writing and signed by as well as a specimen signature of such successor Representative.
(b) Neither Representative nor any agent employed by The Representative shall not be liable to Seller, for any Unitholder act done or any other Seller Investor Party relating omitted hereunder as the Representative while acting in good faith and in the exercise of reasonable judgment. The Sellers on whose behalf the Escrow Shares was contributed to the performance Escrow Fund shall indemnify the Representative and hold the Representative harmless against any loss, liability or expense incurred without negligence or bad faith on the part of the Representative and arising out of or in connection with the acceptance or administration of the Representative’s duties under this Agreement hereunder, including the reasonable fees and expenses of any legal counsel retained by the Representative. After all claims for losses by Procera have been satisfied, or reserved against, the Representative, with the consent of the majority in interest in the Escrow Fund, may recover from the Escrow Fund at the end of the Escrow Period, by Representative’s written request to the Escrow Agent, payments and reimbursement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in connection with the course of performance of Representative’s duties hereunder and losses, including costs representation of defense, paid or incurred the Sellers in connection with any action, suit, proceeding or claim this Escrow Agreement. The Escrow Agent may absolutely rely on such written request and shall have no duty to which Representative is made a party by reason determine the authority of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any mattermaking such request.
(c) In A decision, act, consent or instruction of the event that Representative resigns from its position as Representative, including but not limited to an amendment, extension or waiver of this Agreement pursuant to Section 16 hereof, shall constitute a successor Representative decision of the Sellers and shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all final, binding and conclusive upon the Sellers; and the Escrow Agent and Procera may rely upon any such decision, act, consent or instruction of the powerRepresentative as being the decision, authority act, consent or instruction of the Sellers. The Escrow Agent and rights conferred Procera are hereby relieved from any liability to any person for any acts done by this Agreement upon them in accordance with such decision, act, consent or instruction of the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Representative. (a) Seller, each Unitholder and, upon execution The Representative shall serve as the agent for and delivery to Purchaser and Parent on behalf of the Acknowledgment Company Stockholders (in their capacities as such) to: (i) receive, assert, negotiate, enter into settlements and Joinder Agreementcompromises of, each and comply with orders of courts and awards of arbitrators with respect to, any Claims and Liabilities by any Indemnitee, against the Company and any Company Stockholders or by any such Company Stockholder against any Indemnifying Party or any other Seller Investor Party hereby appoints P▇▇▇ ▇▇▇▇ as its representative dispute between Parent and its true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitutionany Company Stockholder, in its name, place each case relating to this Agreement or the transactions contemplated hereby or thereby; and stead(ii) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Any and all capacitiesClaims and Liabilities between or among any Indemnitee, the Representative and/or any one or more Company Stockholders relating to this Agreement or the transactions contemplated hereby shall in the case of any claim or dispute asserted by or against or involving any such Company Stockholder (in its capacity as such) (other than any claim against or dispute with the Representative), be asserted or otherwise addressed solely by the Representative on behalf of such Company Stockholder (and not by such Company Stockholder acting on its own behalf). The Person serving as the Representative may be replaced from time to time by the holders of a majority in interest of the shares held by the Company Stockholders upon not less than ten days’ prior written notice to Parent. No bond shall be required of the Representative, and the Representative shall receive no compensation for his services. Notices or communications to or from the Representative shall constitute notice to or from each of the Company Stockholders.
(b) The Representative shall not be liable to any Company Stockholder for any act done or omitted hereunder as the Representative while acting in good faith. The Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against the Representative. The Company Stockholders shall, severally and not jointly, on a pro rata basis, based on the number of shares of Company Common Stock issued and outstanding as of the Effective Time, indemnify the Representative and hold him harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of the Representative and arising out of or in connection with the transactions contemplated by this Agreement acceptance or administration of his duties hereunder, including without limitation the legal costs and expenses of defending the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done Representative against any claim or liability in connection with the transactions contemplated hereby performance of the Representative’s duties.
(c) Notwithstanding anything herein to the contrary, the Representative is not authorized to, and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoingshall not, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and accept on behalf of each any holder of them for the purposes of: (i) supervising the Closing; (ii) taking Company Stock any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment Merger Consideration to which such holder of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them Company Stock is entitled under this Agreement and the Escrow AgreementRepresentative shall not in any manner exercise, or seek to exercise, any voting power whatsoever with respect to shares of capital stock of the Company or Parent now or hereafter owned of record or beneficially by any holder of Company Stock unless the Representative is expressly authorized to do so in writing signed by the holder of Company Stock. As In all matters relating to this Article 8, the representative under this Agreement Representative shall be the only party entitled to assert the rights of the holders of Company Stock and the Escrow Agreement, Representative shall act as perform all of the agent for Seller, all Unitholders and all other Seller Investor Parties, obligations of the holders of Company Stock hereunder. Representative shall have authority to bind each such Person in accordance with this Agreementpromptly, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two in any event within five (25) Business Days’ prior business days, provide written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made the affected of any action taken on their behalf by the Representative in connection with pursuant to the authority delegated to the Representative under this Agreement in writing and signed by RepresentativeSection 8.7.
(bd) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor The Representative shall have all reasonable access to information about the Company and the reasonable assistance of the powerCompany’s officers and employees for purposes of performing its duties and exercising its rights hereunder, authority provided that the Representative shall treat confidentially and rights conferred by this Agreement upon not disclose any nonpublic information from or about the initial Representatives and the term “Representatives” herein shall be deemed Company to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant anyone (except on a need to this Agreementknow basis to individuals who agree to treat such information confidentially).
Appears in 1 contract
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby appoints P▇▇▇ ▇▇▇▇ as its representative and its true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and For purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, the “Representative” shall meanDon ▇▇▇▇▇. All actions of the Representative shall be made personally by the Representative, and no Representative shall be permitted to assign or waiver delegate its rights or duties, whether by operation of any provision in law or otherwise. In the event of the death, incapacity, incompetency, disability or resignation of the Representative, the Corporation, or if dissolved at such time, the remaining Stockholders shall elect a new Representative who shall have full authority to take all actions required or permitted to be taken by the Representative under this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of Prompt written notice of the appointment election of a successor upon two (2) Business Days’ prior written notice substitute Representative shall be provided to Purchaser. Purchaser may conclusively Buyer by the substitute Representative so elected, and Buyer shall be entitled to rely upon, without independent verification or investigation, all decisions made by on the authority of any substitute Representative elected pursuant to the procedures set forth in connection with this Agreement in writing and signed by Representativesubsection 20(a).
(b) Neither In addition to, and not in substitution of, the provisions set forth in subsection 20(a), the Corporation and each of the Stockholders hereby authorizes the Representative nor to take any agent employed by Representative shall be liable and all actions (or not to Sellertake any or all actions), and/or to prepare, determine, calculate, negotiate, execute and deliver any Unitholder and all agreements, notices, consents, determinations, documents and other instruments, which the Corporation or any other Seller Investor Party relating such Stockholder (or the Representative on behalf of the Corporation of any such Stockholder) is required or permitted to the performance of Representative’s duties take, prepare, determine, calculate, negotiate, execute and/or deliver under or pursuant to this Agreement for and/or as contemplated by this Agreement, all in the name of and on the behalf of the Corporation or any errors such Stockholder, including, but not limited to, the making and execution of any amendments to this Agreement, the giving and receipt of any notices or consents pursuant hereto, the execution of any and all documents required to be executed in judgmentorder to complete Closing hereunder or appropriate or incidental to so complete Closing hereunder, negligenceto calculate, oversightdetermine, breach negotiate and give notice of duty or otherwise except with respect to the extent it is finally determined in a court any adjustment to any issuance of competent jurisdiction by clear and convincing evidence that the acts or omissions Buyer Shares to be made pursuant to this Agreement, to accept service of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred process in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant related to this Agreement; providedAgreement and to prosecute, howeverdefend or settle in the Representative’s discretion all indemnification disputes (including hiring of counsel and other litigation assistance). From and after the Closing, that Representative Buyer shall not be entitled to indemnification hereunder deal exclusively with the Representative with respect to any matter arising under this Agreement. Such appointment shall, to the fullest extent it is finally determined permitted by a court of competent jurisdiction by clear and convincing evidence that law, survive the acts dissolution or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all liquidation of the powerCorporation, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include death, disability, incapacity, or incompetency of any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this AgreementStockholder.
Appears in 1 contract
Sources: Asset Purchase Agreement (Nova Measuring Instruments LTD)
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent For purposes of the Acknowledgment and Joinder this Agreement, each other Seller Investor Party hereby appoints Pthe "Representative" shall be Deep▇▇ ▇▇▇▇ ▇▇▇▇ as its representative and its true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to if she/he shall be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative unable to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, the Archetype Stockholders of record (acting by majority vote of the common and preferred stockholders, voting together as a single class) shall appoint a successor Representative to act thereafter as the Representative. In the event that the Representative determines in his or her sole discretion, in connection with discretion that the amendment interests of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to Archetype Shareholders would be executed better served by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a new Representative, he or she shall so notify the Archetype Shareholders and shall be entitled to thereafter resign. If the Archetype Stockholders shall fail to elect a successor Representative or do not notify Bitstream and A-Sub of the name of such successor within ten days after being requested to do so by Bitstream or A-Sub, then Bitstream shall elect a successor Representative from among the Archetype Stockholders and such choice shall be binding upon two (2) Business Days’ prior written notice to Purchaser. Purchaser each of the Archetype Stockholders; provided, that any Representative selected by Bitstream may conclusively rely upon, without independent verification or investigation, all decisions made be replaced by Representative in connection with this Agreement in writing and signed by Representativea vote of a majority of the Archetype Stockholders.
(b) Neither Representative nor By adoption of the Agreement as required by Delaware law, the Archetype Shareholders shall be deemed to have irrevocably constitute and appointed the Representative, acting alone, as their true and lawful attorney to perform on their behalf all acts which by the provisions of this Agreement are to be performed by them; to execute and give and received on their behalf all notices, requests, consents, amendments, demands and other communications to them hereunder; to delegate to any agent employed by persons in writing all or any of such Representative's power and authority hereunder in the event of absence or incapacity to act, and generally to act for each Archetype Shareholder and on each such Archetype Shareholders' behalf in all matters connected with
(c) The foregoing power of attorney in favor of the Representative shall be liable set forth in the Noncompetition Agreement to Sellerbe executed by holders of Archetype Options (other than Disqualified Options) and the Lock-Up Agreements to be executed by directors, any Unitholder or any other Seller Investor Party relating to the performance officers and 5% stockholders of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Archetype.
(d) The Representative shall be severally (but not jointly) indemnified and held harmless by act, without compensation, on behalf of the Unitholders Archetype Shareholders, and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled liable to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act Archetype Shareholder for any action taken in good faith on any matterbehalf of such Archetype Shareholder.
(ce) In the event that Representative resigns from its position as Representative, a successor Representative Bitstream and A-Sub shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all entitled to rely on the full power and authority of the powerRepresentative to act hereunder on behalf of the Archetype Shareholders, authority and rights conferred by this Agreement shall not be liable in any way whatsoever for any action it takes or omits to take in reliance upon the initial Representatives such power and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreementauthority.
Appears in 1 contract
Sources: Merger Agreement (Bitstream Inc)
Representative. (a) SellerIn order to efficiently administer the transactions contemplated hereby, each Unitholder and, upon execution and delivery to Purchaser and Parent including (i) the determination of the Acknowledgment Base Merger Consideration and Joinder Closing Merger Consideration, (ii) the waiver of any condition to the obligations of the Equity Holders to consummate the transactions contemplated hereby and (iii) the defense and/or settlement of any claims for which the Equity Holders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, the Company Stockholders, by the approval of the Merger and adoption of this Agreement and/or their acceptance of any Closing Merger Consideration pursuant to this Agreement, each other Seller Investor Party and the Option Holders, by their acceptance of any Option Consideration pursuant to this Agreement, hereby appoints P▇▇▇ ▇▇▇▇ designate the Representative as its representative and its true and lawful their representative, attorney-in-fact and agent.
(b) The Company Stockholders, with full powers by their approval of substitution the Merger and resubstitution, in its name, place and stead, in any and all capacities, in connection with the transactions contemplated by adoption of this Agreement and/or their acceptance of any Closing Merger Consideration pursuant to this Agreement, and the Escrow Option Holders, by their acceptance of any Option Consideration pursuant to this Agreement, granting unto said attorney-in-fact and agent, full power and authority hereby authorize the Representative to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking take any and all actions that may and to make any decisions required or permitted to be necessary taken or desirable, as determined made by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in Representative under this Agreement and the Escrow Agreement, including the power exercise of the power: (i) to compromise make all decisions relating to the determination of the Base Merger Consideration and the Closing Merger Consideration, (ii) to take all action necessary in connection with the waiver of any indemnity claim on their behalf; condition to the obligations of the Company and the Equity Holders to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims for which the Equity Holders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, (viii) executing to give and deliveringreceive all notices required to be given under the Agreement, and (iv) to take any and all additional action as is contemplated to be taken by or on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed the Equity Holders by any the terms of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter.
(c) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from its position as such position, the Company Stockholders (acting by the vote of the Company Stockholders who immediately prior to the Effective Time held at least a majority of the outstanding Company Shares held by all Company Stockholders (voting on an as-converted to Common Share basis)) shall select another representative to fill the vacancy of the Representative initially chosen by the Company Stockholders, and such substituted representative shall thereafter be deemed to be the Representative for all purposes of this Agreement and the Escrow Agreement, and the documents delivered pursuant hereto and thereto.
(d) All decisions and actions by the Representative, including without limitation any agreement between the Representative and the Buyer relating to the determination of the Base Merger Consideration and Closing Merger Consideration or the defense or settlement of any claims for which the Equity Holders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, shall be binding upon all of the Equity Holders, and no Equity Holder shall have the right to object, dissent, protest or otherwise contest the same.
(e) Without limiting the generality of the foregoing, the Representative is authorized and empowered to establish such reserves as the Representative may from time to time determine, in its sole discretion, to be necessary and desirable in connection with the expenses and other costs to be borne by the Representative or the Equity Holders hereunder, including the Representative Fund, and to pay such reserves from the Representative Fund or direct the Buyer to make payment of such amounts from the Escrow Amount to be applied to such reserves in lieu of the payment to the Equity Holders;
(f) The Representative Fund shall be maintained by the Representative in a successor segregated account (the “Representative Account”). The Representative shall be appointed by a Majorityreimbursed for reasonable out-inof-Interest as promptly as practicablepocket expenses incurred in the performance of its duties (including, without limitation, the reasonable fees and expenses of counsel) under this Agreement and the Escrow Agreement from the Representative Fund and, if such fund is insufficient to pay such expenses, from the first proceeds from the Escrow Amount otherwise available for distribution to the Equity Holders. Each successor Any portion of the Representative shall have Fund remaining after (i) payment of all of the powerRepresentatives’ out-of-pocket expenses following the resolution of all indemnification claims under Article VI hereof and (ii) the determination by the Representative that such funds are no longer necessary in connection with indemnification claims that may be brought thereunder (such portion of the Representative Fund, authority the “Remaining Representative Fund”) shall be delivered to the Paying Agent for distribution to the Equity Holders (or the Company, for distribution to the Option Holders) in the amounts such Equity Holders would receive if the Remaining Representative Fund were instead a portion of the Escrow Amount to be distributed to such Equity Holders in accordance with the Escrow Agreement. The Representative shall hold, invest, reinvest and rights conferred by this Agreement upon disburse the initial Representatives Representative Account in trust for all Equity Holders, and the term “Representatives” herein Representative Account shall not be deemed used for any other purpose (other than as contemplated under Section 1.12(h)) and shall not be available to include the Buyer or to the Surviving Corporation to satisfy any successor Representative. “Majority-in-Interest” means Unitholders claims hereunder;
(g) By his, her or its approval of the Merger and other Seller Investor Parties thatadoption of this Agreement, collectively, receive not less than 50.1% and/or their acceptance of Purchase Price paid any Closing Merger Consideration pursuant to this Agreement, each Company Stockholder and Option Holder agrees that:
(i) the Buyer shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Base Merger Consideration and Closing Merger Consideration, the settlement of any claims for indemnification by the Buyer and/or the Surviving Corporation pursuant to Article VI hereof or any other actions required or permitted to be taken by the Representative hereunder, and no Equity Holder or any other party shall have any cause of action against the Buyer for any action taken by the Buyer in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all of the Equity Holders, and no Equity Holder shall have any cause of action against the Representative for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful breach of this Agreement by the Representative;
(iii) the provisions of this Section 1.12 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Equity Holder may have in connection with the transactions contemplated by this Agreement;
(iv) remedies available at law for any breach of the provisions of this Section 1.12 are inadequate; therefore, the Buyer and the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either the Buyer and/or the Surviving Corporation brings an action to enforce the provisions of this Section 1.12; and
(v) the provisions of this Section 1.12 shall be binding upon the executors, heirs, legal representatives, personal representatives, successors and permitted assigns of each Equity Holder, and any references in this Agreement to an Equity Holder shall mean and include the successors to the Equity Holder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(h) In performing the functions specified in this Agreement, the Representative shall not be liable to any Equity Holder in the absence of fraud or willful breach on the part of the Representative. Each Equity Holder shall severally, and not jointly, indemnify and hold harmless the Representative from and against any loss, liability or expense incurred without fraud or willful breach on the part of the Representative and arising out of or in connection with the acceptance or administration of its duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Representative.
Appears in 1 contract
Representative. (a) SellerThe Holders have separately irrevocably appointed Fidelity National Financial, each Unitholder andInc. to act as the designated representative, upon execution agent and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby appoints P▇▇▇ ▇▇▇▇ as its representative and its true and lawful attorney-in-fact and agent, of such Holders with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do make all decisions and perform each determinations and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and take all actions that may be necessary required or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, permitted under or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) relating to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement on behalf of such Holders (Fidelity National Financial, Inc., in such capacity, the “Representative”), including (i) approving any of the documents required to be delivered by such Holders on or after the Closing Date, (ii) approving or contesting the Closing Statement and/or the Initial Merger Consideration adjustments as set forth in Article II of this Agreement, and any other matter provided for in Article II of this Agreement, (iii) administering any indemnification matter on behalf of the transactions contemplated hereby Holders, agreeing to the settlement of any indemnification matter and thereby; otherwise handling and negotiating indemnification matters, (iv) agreeing to any waiver, consent or amendment under or to this Agreement, provided that no such waiver, consent or amendment shall adversely affect the allocation of any consideration hereunder to any Holder who does not expressly consent thereto in writing, (v) distributing to the Holders any portion of any consideration hereunder payable to the Holders after the Closing Date, (vi) to act for each sending, receiving and reviewing notices under this Agreement on behalf of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); Holders and (vii) granting any consentappointing a successor Representative in the event of the resignation or death of the then current Representative. Each Holder has acknowledged that this Section 10.12 is intended to have the broadest possible scope for the purpose of promoting the efficient negotiation and handling of all matters which arise under or in connection with this Agreement. All actions taken by the Representative in connection with, waiver or approval on behalf relating to, the subject matter of each of them under this Agreement and or the Escrow AgreementAgreement that are within the authority conferred upon the Representative pursuant to this Section 10.12 shall be deemed authorized, approved, ratified and confirmed by the Holders, having the same force and effect as if performed pursuant to the direct authorization of such Holders. As Subject to the representative under this Agreement and terms of the Escrow Agreement, the Representative shall act as be entitled, absent gross negligence or bad faith, to indemnification in connection with the agent for Seller, all Unitholders performance by the Representative of its rights and all other Seller Investor Parties, shall have authority obligations pursuant to bind each such Person in accordance with this Section 10.12 and under the Escrow Agreement, which indemnification shall be satisfied solely by having recourse against the Escrow Funds; provided that, subject to Section 7 of the Escrow Agreement, any such indemnification of the Representative shall be subject and Purchaser may rely on such appointment strictly subordinated to any rights of the Parent and authority the other Indemnified Parties against the Escrow Fund pursuant to the Escrow Agreement, with no Escrow Funds to be paid to the Representative until the receipt of notice of Parent and the appointment of a successor upon two (2) Business Days’ prior written notice Indemnified Parties have no further rights thereto and such funds are about to Purchaserbe returned to the Holders. Purchaser may conclusively The Parent shall be entitled to rely upon, without independent verification or investigation, all decisions made by any act, notice, instruction or communication from the Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason behalf of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative Holders 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 Representative. The Parent shall be entitled to indemnification hereunder to disregard any notices or communications given or made by any Holder unless given or made through the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties thatFor purposes of this Section 10.12, collectively, receive not less than 50.1% Holder shall refer to all holders of Purchase Price paid pursuant to this AgreementCompany Stock.
Appears in 1 contract
Sources: Merger Agreement (Fidelity National Financial, Inc.)
Representative. For purposes of this Agreement, the Demi▇▇ ▇▇▇reholders, without any further act of any Demi▇▇ ▇▇▇reholder, shall be deemed to have consented to and approved (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent the use of the Acknowledgment and Joinder Escrow Shares as collateral for Demi▇▇'▇ ▇▇▇ the Demi▇▇ ▇▇▇reholders' indemnification obligations under Section 10 of the Plan of Reorganization in the manner set forth in this Agreement, each other Seller Investor Party hereby appoints P(b) the appointment of Robe▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ as the Representative of the Demi▇▇ as its representative and its true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with the transactions contemplated by ▇▇▇reholders under this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent for and on behalf of each Demi▇▇ ▇▇▇reholder, and the taking by the Representative of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with and the amendment of this Agreement, or waiver making of any provision in decisions required or permitted to be taken by him under this Agreement; (iii) accepting notices Agreement (including, without limitation, Notices the exercise of Claimthe power to: authorize delivery to Worldtalk of Escrow Shares in satisfaction of claims by Worldtalk; agree to, negotiate, enter into settlements and compromises of and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims; resolve any claim made pursuant to Section 10 of the Plan of Reorganization; and take all actions necessary in the judgment of the Representative for the accomplishment of the foregoing) on their behalf; and (ivc) all of the other terms, conditions and limitations in the Escrow Agreement. Accordingly, the Representative has unlimited authority and power to act for on behalf of each of them Demi▇▇ ▇▇▇reholder with regard respect to matters pertaining to indemnification referred to in this Agreement and the Escrow disposition, settlement or other handling of all claims, rights or obligations arising under this Agreement, including so long as all Demi▇▇ ▇▇▇reholders are treated in material respects in the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and same manner. The Demi▇▇ ▇▇▇reholders will be bound by all notices, documents or certificates to be executed actions taken by any of them the Representative in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may Worldtalk and the Escrow Agent shall be entitled to rely on such appointment and authority until the receipt of notice any action or decision of the appointment Representative as constituting the actions of a successor upon two (2) Business Days’ prior written notice to Purchaserthe Demi▇▇ ▇▇▇reholders. Purchaser may conclusively rely uponIn performing such functions, without independent verification or investigation, all decisions made by the Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall will not be liable to Seller, any Unitholder the Demi▇▇ ▇▇▇reholders in the absence of gross negligence or any other Seller Investor Party relating to willful misconduct. All actions and notices by the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative hereunder shall be severally (but not jointly) indemnified and held harmless signed by the Unitholders and the other Seller Investor PartiesRepresentative. The Representative may resign from such position, on effective upon a Pro Rata Share basis, against all costs and expenses incurred by new Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing being appointed to act in good faith on any matter.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.the
Appears in 1 contract
Representative. In order to efficiently administer the transactions contemplated hereby, including (i) the defense and/or settlement of any claims for which the Shareholders may be required to indemnify Buyer pursuant to Article X hereof and (ii) entering into the Escrow Agreement, the Shareholders, by their adoption of this Agreement and the approval of the Merger, agree to the appointment of the Representative. The Representative is hereby authorized to take any and all action as is contemplated to be taken by the Shareholders by the terms of this Agreement and the Escrow Agreement. All decisions and actions by the Representative shall be binding upon all of the Shareholders and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same. By their adoption of this Agreement and the approval of the Merger, the Shareholders further agree that: (a) Seller, each Unitholder and, upon execution Buyer shall be able to rely exclusively on the instructions and delivery to Purchaser and Parent decisions of the Acknowledgment Representative as to the settlement of claims for indemnification by Buyer pursuant to Article X hereof, or any other actions taken by the Representative hereunder, and Joinder Agreementno party hereunder shall have any cause of action against Buyer in reliance upon the instructions or decisions of the Representative; (b) all actions, each other Seller Investor Party hereby appoints P▇▇▇ ▇▇▇▇ as its representative decisions and its true instructions of the Representative shall be final, conclusive and lawful attorney-in-fact binding upon the Shareholders; A-10
(c) the provisions of this Section 2.11 are independent and agentseverable, are irrevocable and coupled with full powers of substitution an interest, and resubstitution, in its name, place and stead, in shall be enforceable notwithstanding any and all capacities, rights or remedies that any Shareholder may have in connection with the transactions contemplated by this Agreement and the Escrow Agreement; and (d) the provisions of this Section 2.11 shall be binding upon the executors, granting unto said attorney-in-fact heirs, legal representatives and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf successors of each of them for the purposes of: (i) supervising the Closing; (ii) taking Shareholder, and any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to references in this Agreement to a Shareholder shall mean and include the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating successors to the performance of Representative’s duties under this Agreement for any errors in judgmentShareholders' rights hereunder, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative whether pursuant to this Agreement; providedtestamentary disposition, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court laws of competent jurisdiction by clear descent and convincing evidence that the acts distribution or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matterotherwise.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Representative. (a) SellerIn order to efficiently administer the Merger, each Unitholder andincluding (i) the determination of any adjustment pursuant to Section 2.16 and (ii) the dispute, upon defense and/or settlement of any claims for which the Company Indemnitors may be required to indemnify Parent and/or the Surviving Corporation pursuant to this Agreement, the Principal Shareholders, by their execution of this Agreement, and delivery to Purchaser and Parent the other Applicable Holders, by the approval of the Acknowledgment Merger and Joinder adoption of this Agreement and/or their acceptance of any consideration pursuant to this Agreement, each other Seller Investor Party hereby appoints P▇▇▇ ▇▇▇▇ designate and appoint the Representative as its representative and its true and lawful their representative, attorney-in-fact and agent. This power of attorney and all authority hereby conferred shall be irrevocable and shall not be terminated by any act of any Applicable Holder, by operation of Law, whether by such Applicable Holder’s death, disability, protective supervision or any other event.
(b) The Principal Shareholders, by their execution of this Agreement, and the other Applicable Holders, by the approval of the Merger and adoption of this Agreement and/or their acceptance of any consideration pursuant to this Agreement, hereby authorize the Representative: (i) to make all decisions relating to the determination of any adjustments pursuant to Section 2.16, (ii) to take all action necessary in connection with full powers the waiver of substitution any condition to the obligations of the Company and resubstitutionthe Applicable Holders to consummate the transactions contemplated hereby, in its nameor the dispute, place defense and/or settlement of any claims for which the Applicable Holders may be required to indemnify Parent and/or the Surviving Corporation pursuant to Article 9, (iii) to give and steadreceive all notices permitted or required to be given under this Agreement, in (iv) to execute and deliver the Escrow Agreement and (v) to take any and all capacitiesadditional action as is contemplated to be taken by or on behalf of the Applicable Holders by the terms of this Agreement.
(c) If the Representative becomes unable to perform his responsibilities hereunder or resigns from such position, the Applicable Holders (acting by the vote of the Applicable Holders who immediately before the Effective Time held the right to receive at least a majority of the Common Equivalent Merger Consideration) shall select another representative to fill the vacancy of the Representative initially chosen by the Applicable Holders, and such substituted representative shall be deemed to be the Representative for all purposes of this Agreement and the documents delivered pursuant to this Agreement.
(d) All decisions and actions of the Representative on behalf of the Applicable Holders shall be deemed to be facts ascertainable outside of this Agreement and shall be binding upon all Applicable Holders, and no Applicable Holder shall have the right to object, dissent, protest or otherwise contest the same. A decision, act, consent, instruction or action of the Representative, including any agreement between the Representative and Parent relating to the determination of the Final Closing Net Working Capital, the Merger Consideration or the dispute, defense or settlement of any claims for which the Applicable Holders may be required to indemnify Parent and/or the Surviving Corporation pursuant to Article 9, shall constitute a decision, act, consent, instruction or action of all Applicable Holders and shall be binding and conclusive upon each of such Applicable Holders and the Parties, the Surviving Corporation and the Escrow Agent may rely upon any such decision, act, consent, instruction or action as being the decision, act, consent or instructions of each and every such Applicable Holder. Parent, the Surviving Corporation and the Escrow Agent are hereby relieved from any liability to any Applicable Holder for any acts done by them in accordance with such decision, act, consent, instruction or action of the Representative.
(e) The Representative will receive no compensation for services as the Representative. By his, her or its execution of this Agreement, each Principal Shareholder, and by their approval of the Merger and adoption of this Agreement, and/or their acceptance of any consideration pursuant to this Agreement, each other Applicable Holder, agrees that the Applicable Holders will pay from the Representative Expense Fund all (i) professional fees and expenses of any attorney, accountant or other advisors or expert retained by the Representative and other reasonable out-of-pocket expenses incurred by the Representative in connection with the performance of the Representative’s duties under this Agreement and the Escrow Agreement and (ii) any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses actually incurred or suffered by the Representative in connection with this Agreement or the Escrow Agreement as the Representative (collectively, the “Representative Expenses”) in each case as such Representative Expense is suffered or incurred; provided, that if any such Representative Expense is finally adjudicated to have been directly caused by the fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Applicable Holders the amount of such indemnified Representative Expense to the extent attributable to such fraud, gross negligence or willful misconduct. Such Representative Expenses may only be recovered by the Representative from the Representative Expense Fund or from the Escrow Fund as provided below or from the Applicable Holders directly. In no event will the Representative be required to advance his own funds on behalf of the Applicable Holders or otherwise. Following the resolution of all pending claims related thereto (and, for the avoidance of doubt, no earlier), the Representative shall have the right to recover Representative Expenses in excess of the Representative Expense Fund from the Escrow Fund before any distribution to the Applicable Holders. By his, her or its execution of this Agreement, each Principal Shareholder, and by their approval of the Merger and adoption of this Agreement, and/or their acceptance of any consideration pursuant to this Agreement, each other Applicable Holder, agrees that the Applicable Holders will on an individual and several basis (and not jointly as to or with any other Applicable Holder) indemnify, defend, hold harmless and reimburse, on a Proceeds Pro Rata Basis, the Representative for Representative Expenses, in each case as such Representative Expenses are incurred. The foregoing indemnity will survive the resignation or removal of the Representative or the termination of this Agreement, and the Representative and the Applicable Holders acknowledge and agree that the provisions of this Section 2.18(e) shall impose no obligations on the Company, the Surviving Corporation, Parent or any of their respective Affiliates.
(f) By his, her or its execution of this Agreement, each Principal Shareholder, and by their approval of the Merger and adoption of this Agreement, and/or their acceptance of any consideration pursuant to this Agreement, each other Applicable Holder, agrees that:
(i) Parent shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of any adjustment pursuant to Section 2.16, the settlement of any claims for indemnification by Parent and/or the Surviving Corporation pursuant to Article 9 or any other actions required or permitted to be taken by the Representative hereunder, and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon the instructions or decisions of the Representative;
(ii) no Applicable Holder shall have any cause of action against the Representative for, and the Representative shall have no liability to any Applicable Holder in connection with, any action taken or omitted, decision made or instruction given by the Representative under this Agreement, except for liability directly resulting from fraud, gross negligence or willful misconduct on the part of the Representative;
(iii) each such Applicable Holder will, on an individual and several basis based on his, her or its Proceeds Pro Rata Basis (and not jointly as to or with any other Applicable Holder) indemnify, defend and hold harmless the Representative in accordance with Section 2.18(e);
(iv) the provisions of this Section 2.18 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Applicable Holder may have in connection with the transactions contemplated by this Agreement Agreement;
(v) remedies available at law for any breach of the provisions of this Section 2.18 may be inadequate; therefore, Parent and the Escrow AgreementSurviving Corporation shall be entitled to seek temporary and permanent injunctive relief without the necessity of proving damages if either Parent and/or the Surviving Corporation brings an action to enforce the provisions of this Section 2.18; and
(vi) the provisions of this Section 2.18 shall be binding upon the executors, granting unto said attorney-in-fact heirs, legal representatives, personal representatives, successors and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf permitted assigns of each of them for the purposes of: (i) supervising the Closing; (ii) taking Applicable Holder, and any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to references in this Agreement to an Applicable Holder shall mean and include the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating successors to the performance of RepresentativeApplicable Holder’s duties under this Agreement for any errors in judgmentrights hereunder, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative whether pursuant to this Agreement; providedtestamentary disposition, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court Laws of competent jurisdiction by clear descent and convincing evidence that the acts distribution or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matterotherwise.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Sources: Merger Agreement (ZAGG Inc)
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent Each of the Acknowledgment and Joinder Agreement, each other Seller Investor Party Agreement Parties hereby appoints Pagrees that J▇▇▇▇ ▇▇▇▇▇▇▇ shall be appointed as its representative the Representative and its true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent for and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking Stockholder, and is hereby authorized to take any and all actions that may and make any and all decisions required or permitted to be taken by him under this Agreement or any Ancillary Agreement to which any Stockholder is a party, including the exercise of the power to (a) resolve any Disputed Items with respect to the Final Closing Statement (b) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts with respect to any indemnification claims, (c) resolve any indemnification claims, and (d) take all actions necessary or desirablein the judgment of the Representative for the accomplishment of the other terms, as determined by Representative, in his sole discretion, in connection with the amendment conditions and limitations of this Agreement, or waiver of the Ancillary Agreements and any provision in this Agreement; (iii) accepting notices (includingtransactions contemplated herein and therein. Accordingly, without limitation, Notices of Claim) on their behalf; (iv) the Representative has the authority and power to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, each Stockholder with respect to this Agreement or any and Ancillary Agreement to which any Stockholder is a party. Each Stockholder will be bound by all notices, documents or certificates to be executed actions taken by any of them the Representative in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or Parent shall only be required to acknowledge or act upon a written communication signed by the Representative. Such agency may be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and changed with respect to the Escrow Agreement. As Representative by the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice majority of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this AgreementStockholders represented thereby; provided, however, that the Representative may not be removed unless any such majority agrees to such removal and to the identity of the substituted agent. Notwithstanding the foregoing, the Representative may resign at any time by providing written notice of intent to resign to each Stockholder, which resignation shall be effective upon the earlier of (i) thirty (30) calendar days following delivery of such written notice or (ii) the appointment of a successor by the relevant majority. No bond shall be required of the Representative and the Representative shall not receive any compensation for its services. The Representative shall not be entitled to indemnification hereunder liable to the extent it is finally determined by a court Stockholders for any act done or omitted hereunder as the Representative while acting in good faith and in the exercise of competent jurisdiction by clear and convincing evidence that reasonable judgment, even if such act or omission constitutes negligence on the acts or omissions part of Representative constituted willful misconduct or fraudthe Representative. The Representative shall only have the duties expressly stated in this Agreement and shall have no other duty, express or implied. The Representative may engage attorneys, accountants and other professionals and experts and pay for such services out of the Reserve Amount. The Representative may in good faith rely conclusively upon information, reports, statements and opinions prepared or presented by such professionals, and any action taken by the Representative based on such reliance shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and deemed conclusively to have been furnished by the appropriate Person and in acting or refusing to act taken in good faith and in the exercise of reasonable judgment. The Stockholders shall jointly and severally indemnify the Representative and hold the Representative harmless against any loss, liability or expense incurred on any matter.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all part of the powerRepresentative (so long as the Representative was acting in good faith in connection therewith) and arising out of or in connection with the acceptance or administration of the Representative’s duties hereunder, authority including the reasonable fees and rights conferred expenses of any legal counsel retained by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Universal Business Payment Solutions Acquisition Corp)
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby appoints PMr. ▇▇▇▇ ▇▇▇▇ as its representative ll, by virtue of the Merger and its true and lawful the resolutions to be adopted by the Shareholders, be irrevocably appointed attorney-in-fact and agentauthorized and empowered to act, for and on behalf of any or all of the Shareholders (with full powers power of substitution and resubstitution, in its name, place and stead, in any and all capacities, the premises) in connection with the transactions contemplated by this Agreement and indemnity provisions of Article 11 as they relate to the Shareholders generally, the Escrow Agreement, granting unto said the notice provision of this Agreement, and such other matters as are reasonably necessary for the consummation of the Transactions including, without limitation, to act as the representative of such Shareholders to review and authorize all set-offs, claims and other payments authorized or directed by the Escrow Agreement and dispute or question the accuracy thereof, to compromise on their behalf with Jabil any claims asserted thereunder and to authorize payments to be made with respect thereto and to take such further actions as are authorized in this Agreement (the above named representative, as well as any subsequent representative of such Shareholders appointed by him or, after his death or incapacity, elected by vote of holders of a majority of the Jabil Shares received by such Shareholders pursuant to the Merger, being referred to herein as the "Representative"). The Representative shall not be liable, in his capacity as representative of such Shareholders, to any of the Shareholders and their respective affiliates or any other person with respect to any action taken or omitted to be taken by the Representative under or in connection with this Agreement or the Escrow Agreement in his capacity as representative of such Shareholders unless such action or omission results from or arises out of fraud, gross negligence, willful misconduct or bad faith on the part of the Representative. Jabil and the Surviving Corporation and each of their respective affiliates shall be entitled to rely on such appointment and treat such Representative as the duly appointed attorney-in-fact of each Shareholder. Each Shareholder who votes in favor of the Merger pursuant to the terms hereof, by such vote, without any further action, and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done Shareholder who receives any Jabil Shares in connection with the transactions contemplated hereby Merger, by acceptance thereof and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoingwithout any further action, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on confirms such appointment and authority until and acknowledges and agrees that such appointment is irrevocable and coupled with an interest, it being understood that the receipt willingness of notice of Jabil to enter into this Agreement is based, in part, on the appointment of a successor upon two (2) Business Days’ prior written notice representative to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, act on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason behalf of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matterShareholders.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Jabil Circuit Inc)
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby appoints P▇▇▇ ▇▇▇▇ as its representative and its true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, The Representative shall have full power and authority to do represent the Shareholders and perform each and every act and thing requisite and necessary to be done in connection their successors with the transactions contemplated hereby and thereby as fully respect to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of matters arising under this Escrow Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices the execution and delivery of Claim) on any forms or other documents to effect a transfer of all or part of the Escrow Shares to the Trustee pursuant to Section 7 hereof, and all actions taken by the Representative hereunder shall be binding upon the Shareholders and their behalf; (iv) to act for successors as if expressly done by, or confirmed and ratified in writing by, each of them with regard them. Without limiting the generality of the foregoing, the Representative shall have full power and authority to matters pertaining interpret all the terms and provisions of this Escrow Agreement and to indemnification referred consent to in this Agreement any amendment hereof on behalf of the Shareholders and such successors. All action to be taken by the Representative hereunder shall be taken by or at his or her written direction or pursuant to such other method as the Representative, by written notice to CBT and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor PartiesAgent, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representativedesignate.
(b) Neither The Representative nor may act upon any agent employed instrument or other writing believed by such Representative in good faith to be genuine and to be signed or presented by the proper person and shall not be liable in connection with the performance by him or her of his or her duties pursuant to the provisions of this Escrow Agreement, except for his or her own willful default or recklessness. The Representative shall be liable to Sellerbe, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgmentand hereby is, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless saved harmless, jointly and severally, by the Unitholders and the other Seller Investor PartiesShareholders from all losses, on a Pro Rata Share basis, against all costs and expenses that may be incurred by the Representative as a result of such Representative's involvement in the course of any arbitration or litigation arising from performance of Representative’s his or her duties hereunder and losseshereunder, including costs provided that such arbitration or litigation shall not result from any action taken or omitted by the Representative as a result of defense, paid his or incurred in connection with any action, suit, proceeding her willful default or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that recklessness.
(c) The Representative shall not be entitled to indemnification hereunder to compensation for his or her services rendered hereunder. However, the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected reimbursed by Shareholders for reasonable counsel fees and other reasonable out-of-pocket expenses incurred in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by connection with the appropriate Person and in acting or refusing to act in good faith on any matterprovisions of this Escrow Agreement.
(cd) The Representative, or any successor to him or her hereafter appointed, may resign and shall be discharged of such Representative's duties hereunder upon the appointment of a successor Representative as hereinafter provided. In case of the event that Representative resigns from its position Representative's resignation, death or inability to act as Representative, upon receipt of notice thereof, a successor Representative or successors shall be appointed named by a Majority-in-Interest as promptly as practicablethe remaining Shareholders. Each successor Representative shall have all of the power, authority authority, rights and rights privileges hereby conferred by this Agreement upon the initial Representatives original Representative, and the term “Representatives” "Representative" as used herein shall be deemed to include any each such successor Representative. “Majority-in-Interest” means Unitholders .
(e) The Representative shall take all actions, execute all documents and other Seller Investor Parties that, collectively, receive not less than 50.1% otherwise cooperate fully with any request by CBT or the Trustee to transfer Escrow Shares as required by this Agreement or to otherwise effect the purpose of Purchase Price paid pursuant to this Escrow Agreement.
Appears in 1 contract
Sources: Escrow Agreement (CBT Group PLC)
Representative. (a) SellerIn order to efficiently administer the transactions contemplated hereby, each Unitholder and, upon execution and delivery to Purchaser and Parent including (i) the determination of the Acknowledgment Final Closing Adjustment, the Adjusted Purchase Price and Joinder any Earn-Out Consideration and (ii) the defense and/or settlement of any claims for which any Seller may be required to indemnify the Buyer pursuant to this Agreement, each other Seller Investor Party hereby designates, nominates, constitutes and appoints P▇▇▇ ▇▇▇▇ the Representative as its representative and its true and lawful such Seller’s representative, attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Each Seller hereby authorizes the Representative nor any agent employed by Representative shall be liable (i) to Seller, any Unitholder or any other Seller Investor Party make all decisions relating to the performance determination of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders Final Closing Adjustment and the other Seller Investor PartiesAdjusted Purchase Price pursuant to Section 1.5 and the Earn-Out Consideration pursuant to Section 1.8, on a Pro Rata Share basis, against (ii) to take all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred action necessary in connection with the defense and/or settlement of any action, suit, proceeding or claim claims for which any Seller may be required to which Representative is made a party by reason of indemnify the fact that Representative was acting as Representative Buyer pursuant to Article VI hereof, (iii) to give and receive all notices required to be given under the Agreement, and (iv) to take any and all additional action as is contemplated to be taken by or on behalf of any Seller by the terms of this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter.
(c) In the event that the Representative becomes unable to perform such Person’s responsibilities hereunder or resigns from its position as such position, the Sellers (acting by the vote of the Sellers who immediately prior to the Effective Time held at least a majority of the outstanding Company Shares) shall select another representative to fill the vacancy of the Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein such substituted representative shall be deemed to include be the Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(d) A decision, act, consent, instruction or action of the Representative, including any successor agreement between the Representative and the Buyer relating to the determination of the Final Closing Adjustment, the Adjusted Purchase Price, any Earn-Out Consideration or the defense or settlement of any claims for which the Sellers may be required to indemnify the Buyer pursuant to Article VI hereof, shall constitute a decision, act, consent, instruction or action of all Sellers and shall be binding and conclusive upon each Seller and the Escrow Agent may rely upon any such decision, act, consent, instruction or action as being the decision, act, consent or instructions of each and every Seller. The Buyer and the Escrow Agent are hereby relieved from any Liability to any Seller for any acts done by them in accordance with such decision, act, consent, instruction or action of the Representative.
(e) By his execution of this Agreement, each Seller agrees that:
(i) the Buyer shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Final Closing Adjustment, the Adjusted Purchase Price, any Earn-Out Consideration, the settlement of any claims for indemnification by the Buyer pursuant to Article VI or any other actions required or permitted to be taken by the Representative hereunder, and no party shall have any cause of action against the Buyer for any action taken by the Buyer in reliance upon the instructions or decisions of the Representative;
(ii) no Seller shall have any cause of action against the Representative for any action taken, decision made or instruction given by the Representative under this Agreement or the execution of the Representative’s duties and responsibilities, except for fraud or willful breach of this Agreement by the Representative. “Majority-in-Interest” means Unitholders Furthermore, the Sellers shall indemnify and other hold harmless the Representative for any damages (including damages arising out of the negligence of the Representative) arising out of the acceptance or administration of the Representative’s duties hereunder and reasonable fees and expenses incurred in the fulfillment of the Representative’s duties and responsibilities. The Sellers shall, severally, not jointly, indemnify the Representative and hold the Representative harmless against any loss, liability or expense incurred without fraud or willful breach on the part of the Representative and arising out of or in connection with the acceptance or administration of the Representative’s duties hereunder;
(iii) the provisions of this Section 1.9 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Seller Investor Parties thatmay have in connection with the transactions contemplated by this Agreement;
(iv) remedies available at Law for any breach of the provisions of this Section 1.9 are inadequate; therefore, collectivelythe Buyer shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if the Buyer brings an action to enforce the provisions of this Section 1.9; and
(v) the provisions of this Section 1.9 shall be binding upon the executors, receive not less than 50.1% heirs, legal representatives, personal representatives, successors and permitted assigns of Purchase Price paid each Seller, and any references in this Agreement to a Seller or the Sellers shall mean and include the successors to the Seller’s rights hereunder, whether pursuant to this Agreementtestamentary disposition, the Laws of descent and distribution or otherwise.
(f) The Sellers recognize and intend that the power of attorney granted in Section 1.9:
(i) is coupled with an interest and is irrevocable; and
(ii) shall survive the death or incapacity of each of the Sellers.
(g) The Representative shall be entitled to treat as genuine, and as the document it purports to be, any letter, facsimile, telex or other document that is believed by the Representative to be genuine and to have been telexed, telegraphed, faxed or cabled by a Seller or to have been signed and presented by a Seller.
(h) All expenses incurred by the Representative in connection with the performance of the Representative’s duties as Representative shall be borne and paid by the Sellers.
Appears in 1 contract
Sources: Stock Purchase Agreement (Parexel International Corp)
Representative. (a) SellerEach THL Entity hereby designates and appoints (and each Permitted Transferee of each such THL Entities is hereby deemed to have so designated and appointed) each of Anth▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇ot▇ ▇▇▇▇▇▇▇▇ ▇▇▇ 71 76 Kent ▇▇▇▇▇▇, ▇▇ his attorney-in-fact with full power of substitution for each Unitholder andof them (the "THL Entities' Representative"), upon execution to serve as the representative of each such person to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such person and delivery hereby acknowledges that the THL Entities' Representative shall be the only person authorized to Purchaser take any action so required, authorized or contemplated by this Agreement by each such person. Each such person further acknowledges that the foregoing appointment and Parent designation shall be deemed to be coupled with an interest and shall survive the death or incapacity of such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the other parties hereto to disregard any notice or other action taken by such person pursuant to this Agreement except for the THL Entities' Representative. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the THL Entities' Representative and are and will be entitled and authorized to give notices only to the THL Entities' Representative for any notice contemplated by this Agreement to be given to any such person. A successor to the THL Entities' Representative may be chosen by a majority in interest of the Acknowledgment THL Entities' Shareholders, provided that notice thereof is given by the new THL Entities' Representative to the Company and Joinder Agreementto each Non-THL Shareholder.
(b) Each DLJ Entity hereby designates and appoints (and each Permitted Transferee of each such DLJ Entities' is hereby deemed to have so designated and appointed) DLJ Merchant Banking II, Inc., as his attorney-in-fact with full power of substitution for each of them (the "DLJ Entities' Representative"), to serve as the representative of each such person to perform all such acts (other than voting of shares of Common Stock) as are required, authorized or contemplated by this 72 77 Agreement to be performed by such person and hereby acknowledges that the DLJ Entities' Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by each such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the other parties hereto to disregard any notice or other action taken by such person pursuant to this Agreement except for the DLJ Entities' Representative. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the DLJ Entities' Representative and are and will be entitled and authorized to give notices only to the DLJ Entities' Representative for any notice contemplated by this Agreement to be given to any such person. A successor to the DLJ Entities' Representative may be chosen by a majority in interest of the DLJ Entities' Shareholders, provided that notice thereof is given by the new DLJ Entities' Representative to the Company and to each other Seller Investor Party hereby appoints PDLJ Entity Shareholder.
(c) Each Merr▇▇▇ ▇▇▇c▇ ▇▇▇ity hereby designates and appoints (and each Permitted Transferee of each such Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities is hereby deemed to have so designated and appointed) KECALP Inc., as its representative and its true and lawful his attorney-in-fact and agent, with full powers power of substitution and resubstitutionfor each of them (the "Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities Representative"), in its nameto serve as the representative of each such person to perform all such acts as are required, place and stead, in any and all capacities, in connection with the transactions authorized or contemplated by this Agreement to be performed by such person and hereby acknowledges that the Escrow AgreementMerr▇▇▇ ▇▇▇c▇ ▇▇▇ities Representative shall be the only person authorized to take any action so required, granting unto said authorized or contemplated by this Agreement by each such person. Each such person further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the death or incapacity of such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the other parties hereby to disregard any notice or other action taken by such person pursuant to this Agreement except for the Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities Representative. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities Representative and are and will be entitled and authorized to give notices only to the Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities Representative for any notice contemplated by this Agreement to be given to any such person. A successor to the Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities Representative may be chosen by a majority in interest of the Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities' Shareholders, provided that notice thereof is given by the new Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities Representative to the Company and to each other Merr▇▇▇ ▇▇▇c▇ ▇▇▇ity Shareholder.
(d) Each Management Shareholder hereby designates and appoints (and each Permitted Transferee of each such Management Shareholder is hereby deemed to have so designated and appointed) Paul ▇. ▇▇▇▇▇▇▇, ▇▇ his attorney-in-fact and agent, with full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act substitution for each of them with regard (the "Management Representative"), to matters pertaining serve as the representative of each such person to indemnification referred to in perform all such acts as are required, authorized or contemplated by this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed performed by any of them in connection with this Agreement such person and hereby acknowledges that the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Management Representative shall be liable the only person authorized to Sellertake any action so required, any Unitholder authorized or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred contemplated by this Agreement upon by each such person. Each such person further acknowledges that the initial Representatives foregoing appointment and the term “Representatives” herein designation shall be deemed to include be coupled with an interest and shall survive the death or incapacity of such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the other parties hereby to disregard any successor Representative. “Majority-in-Interest” means Unitholders and notice or other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid action taken by such person pursuant to this Agreement.Agreement except for the
Appears in 1 contract
Sources: Investors' Agreement (Fisher Scientific International Inc)
Representative. (a) SellerAt the Closing, each Unitholder andSilver Knot, upon execution LLC shall be constituted and delivery to Purchaser and Parent appointed as the Representative. For purposes of the Acknowledgment and Joinder this Agreement, each other Seller Investor Party hereby appoints P▇▇▇ ▇▇▇▇ as its representative and its the term “Representative” shall mean the representative, true and lawful attorney-in-fact and agent, with full powers proxy and attorney in fact of substitution and resubstitution, in its name, place and stead, in any and Parent for all capacities, in connection with the transactions contemplated by purposes of this Agreement and the Escrow Agreement, granting with full power and authority on Parent’s behalf (i) to consummate the transactions contemplated herein, (ii) to pay Parent’s expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (iii) to receive, give receipt and disburse any funds received hereunder on behalf of or to Parent and to holdback from disbursement any such funds to the extent it reasonably determines may be necessary, (iv) to execute and deliver any certificates representing the Units and execution of such further instruments as Buyer shall reasonably request, (v) to execute and deliver on behalf of Parent all documents contemplated herein and any amendment or waiver hereto, (vi) to take all other actions to be taken by or on behalf of Parent in connection herewith, (vii) to negotiate, settle, compromise and otherwise handle all disputes under this Agreement, including without limitation, disputes regarding any adjustment pursuant to Section 2.4, (viii) to waive any condition to the obligation of Parent to consummate the transactions contemplated herein, (ix) to give and receive notices on behalf of Parent and (x) to do each and every act and exercise any and all rights which Parent is permitted or required to do or exercise under this Agreement. Parent, by executing this Agreement, irrevocably grants unto said attorney-in-fact and agent, agent full power and authority to do and perform each and every act and thing requisite and necessary or desirable to be done in connection with the transactions contemplated hereby and thereby by this Agreement, as fully to all intents and purposes as it Parent might or could do itself. Parent agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Representative and shall survive the liquidation, winding up and dissolution of Parent.
(b) All decisions, actions, consents and instructions of the Representative shall be final and binding upon Parent and Parent shall not have any right to object, dissent, protest or otherwise contest the same, except for fraud, bad faith or willful misconduct. Neither the Representative nor any agent employed by the Representative shall incur any liability to Parent relating to the performance of its duties hereunder except for actions or omissions constituting fraud, bad faith or willful misconduct. The Representative shall not have by reason of this Agreement a fiduciary relationship in person. Without limiting the foregoingrespect of Parent, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and except in respect of amounts actually received on behalf of each Parent. The Representative shall not be required to make any inquiry concerning either the performance or observance of them any of the terms, provisions or conditions of this Agreement.
(c) Parent shall cooperate with the Representative and any accountants, attorneys or other agents whom the Representative may retain to assist in carrying out Representative’s duties hereunder. Parent shall reimburse the Representative for all costs and expenses, including professional fees, incurred.
(d) In the purposes of: event that the Representative becomes unable to perform the Representative’s responsibilities or resigns from such position, Parent, or if Parent has been previously dissolved or liquidated the members of Parent holding, prior to such dissolution or liquidation, a majority of the issued and outstanding membership interests of Parent, shall select another representative to fill such vacancy and such substituted representative shall (i) supervising be deemed to be the Closing; Representative for all purposes of this Agreement and (ii) taking any exercise the rights and all actions that may powers of, and be necessary or desirableentitled to the indemnity, as reimbursement and other benefits of, the Representative.
(e) Upon the Closing, Parent shall deliver to the Representative an amount to be determined by the Representative, in his sole discretion, in connection with at its reasonable discretion (the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv“Representative’s Expense Fund”) to act be held in trust to cover and reimburse the fees and expenses incurred by the Representative for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them its obligations in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) herein. Any balance of the Representative’s Expense Fund not incurred for such purposes shall be returned to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severallyParent, but not jointlyor if Parent has been dissolved or liquidated, to contribute, in respect the members of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person Parent in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice their respective ownership of the appointment issued and outstanding membership interests of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification Parent at the time of such liquidation or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representativedissolution.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Representative. (a) Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent Each of the Acknowledgment Principals and Joinder Agreement, each other Seller Investor Party WWG hereby appoints P▇▇▇ ▇▇▇▇▇ as his or its representative exclusive agent and its true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with (the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: "Representative") (i) supervising to give and receive notices and communications with respect to the Closing; provisions of this Agreement, (ii) taking to amend the terms of this Agreement, (iii) to agree to, negotiate, enter into settlements or compromises of matters arising under the provisions of this Agreement, and (iv) to take any and all actions that may be necessary or desirable, as determined by Representative, appropriate in his sole discretion, in connection with the amendment judgment of the Representative to be taken on behalf of the Principals and WWG under such provisions of this Agreement, or waiver . Such agency and that of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them successor representative is irrevocable and coupled with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreementan interest; provided, however, the Representative shall have no authority to act on behalf of any Principal and WWG with respect to an indemnity claim under Section 7.2.2. In the event the Representative refuses to, or is no longer capable of, serving as the Representative hereunder, the other Principals shall promptly appoint a successor Representative who shall thereafter be the successor Representative hereunder and the Representative shall serve until such successor is duly appointed and qualified to act hereunder. The Principals and WWG hereby agree that the Representative shall not be entitled to indemnification hereunder have any liability to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts Company or omissions of Representative constituted willful misconduct any Subsidiary for any action he takes or fraud. Representative shall be protected omits to take hereunder (or under any agreement or instrument referred to herein) in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter.
(c) In the event that Representative resigns from its position his capacity as Representative, a successor unless such action or omission constitutes bad faith or willful misconduct by the Representative. Notices or communications to or from the Representative shall be appointed by a Majority-in-Interest as promptly as practicableconstitute notice to or from the Principals and/or WWG in respect of matters relating to this Agreement. Each successor Any decision, act, consent or instruction of the Representative shall have constitute a decision of all of the powerPrincipals and WWG, authority and rights conferred by this Agreement shall be final, binding and conclusive upon the initial Representatives each Principal and WWG, and the term “Representatives” herein shall be deemed to include Purchaser may rely upon any successor Representative. “Majority-in-Interest” means Unitholders decision, act, consent or instruction of the Representative as being the decision, act, consent or instruction of WWG and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreementeach and every Principal.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (MDC Partners Inc)
Representative. (a) Seller, The Company hereby irrevocably appoints the Representative as each Unitholder and, upon execution and delivery to Purchaser and Parent of the Acknowledgment and Joinder Agreement, each other Seller Investor Party hereby appoints P▇▇▇ ▇▇▇▇ as its representative and its Unitholder’s true and lawful representative, attorney-in-fact and agent, with full powers agent of substitution and resubstitution, in its name, place and stead, in any and all capacities, the Unitholders in connection with the transactions contemplated by this Agreement and in any litigation or arbitration involving this Agreement. By its approval of the Escrow Merger and the adoption of this Agreement and/or its acceptance of any consideration pursuant to this Agreement, granting unto said attorney-in-fact each Unitholder hereby irrevocably approve and agentadopt the appointment of the Representative. In connection therewith, full the Representative is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the Representative shall deem necessary or appropriate, and shall have the power and authority to:
(i) act for some or all of the Unitholders with regard to all matters pertaining to this Agreement;
(ii) act for the Unitholders to transact matters relating to Proceedings;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iv) receive funds, make payments of funds, and give receipts for funds;
(v) do or refrain from doing, on behalf of the Unitholders, any further act or deed that the Representative deems necessary or appropriate in the Representative’s discretion relating to the subject matter of this Agreement, in each case as fully and perform each completely as the Unitholders could do if personally present;
(vi) give and every act and thing requisite and necessary receive all notices required to be given or received by the Unitholders under this Agreement;
(vii) give any written direction to the Paying Agent or the Escrow Agent on behalf of the Unitholders; and
(viii) receive service of process in connection with any claims under this Agreement. All decisions and actions of the Representative on behalf of the Unitholders shall be binding upon all Unitholders, and no Unitholder shall have the right to object, dissent, protest or otherwise contest the same.
(b) The Representative shall act for the Unitholders on all of the matters set forth in this Agreement in the manner the Representative believes to be in the best interest of the Unitholders. The Representative is authorized to act on behalf of the Unitholders notwithstanding any dispute or disagreement among the Unitholders. In taking any action as Representative, the Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any person whom the Representative reasonably believes to be authorized thereunto. The Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Representative shall not be liable to any of the parties hereto or to any Unitholder for anything done, omitted or suffered in good faith by the Representative based on such advice. The Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against the Representative. The Representative shall not have any liability to any of the parties hereto or the Unitholders for any act done or omitted hereunder as Representative while acting in good faith. To the extent not satisfied from the Representative Account, the Representative shall be entitled to reimbursement, from the Unitholders for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Representative in such capacity, and for indemnification against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Representative (except for those arising out of the Representative’s bad faith or willful misconduct), including the costs and expenses of investigation and defense of claims.
(c) The Representative shall have reasonable access to relevant information about the Company for purposes of performing the Representative’s duties and exercising the Representative’s rights hereunder; provided that the Representative shall treat confidentially and not disclose any nonpublic information from or about the Company to anyone except (i) in connection with any disputes arising out of or in connection with this Agreement and (ii) as required by law or to its employees, advisors or consultants and to the Unitholders, in each case who have a need to know such information, provided that such persons are bound by obligations of confidentiality to the Representative of at least as high a standard as those imposed on the Representative under this Agreement.
(d) In the event the Representative becomes unable to perform the Representative’s responsibilities hereunder or resigns from such position, the Unitholders (acting by a written instrument signed by Unitholders who held, as of immediately prior to the Effective Time, a majority (measured on an as-exercised and as-converted basis) of the then outstanding Units) shall select another representative to fill the vacancy of the Representative, and such substituted representative shall be deemed to be the Representative for all purposes of this Agreement. The Representative may be removed only upon delivery of written notice to Parent signed by persons who, as of immediately prior to the Effective Time, held a majority (measured on an as-exercised and as-converted basis) of the then outstanding Units.
(e) For all purposes of this Agreement:
(i) Parent shall be entitled to rely conclusively on the instructions and decisions of the Representative as to the settlement of any disputes or claims under this Agreement, or any other actions required or permitted to be taken by the Representative hereunder, and no party hereunder or any Unitholder shall have any cause of action against Parent for any action taken by Parent in reliance upon the instructions or decisions of the Representative;
(ii) the provisions of this Section 9.19 are independent and severable, are irrevocable (subject only to Section 9.19(e)) and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Unitholder may have in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: by this Agreement; and
(i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment provisions of this AgreementSection 9.19 shall be binding upon the executors, or waiver heirs, legal representatives, personal representatives, successor trustees and successors of each Unitholder, and any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to references in this Agreement to a Unitholder shall mean and include the Escrow Agreement, including successors to the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf rights of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreementapplicable Unitholder hereunder, Representative shall act as the agent for Seller, all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to the performance of Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative whether pursuant to this Agreement; providedtestamentary disposition, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court laws of competent jurisdiction by clear descent and convincing evidence that the acts distribution or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting upon any notice, statement or certificate believed by Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matterotherwise.
(c) In the event that Representative resigns from its position as Representative, a successor Representative shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this Agreement.
Appears in 1 contract
Representative. (a) Seller, each Unitholder and, Effective upon execution and delivery to Purchaser and Parent by virtue of the Acknowledgment Shareholder Approval, and Joinder Agreementwithout any further act of any of the Shareholders, each other Seller Investor Party Representative shall be hereby appoints P▇▇▇ ▇▇▇▇ appointed as its the representative of the Holders and its true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with the transactions contemplated by this Agreement and the Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent for and on behalf of each Holder for purposes of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required will take such actions to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them taken by 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) executing and delivering this Agreement. As , the representative Escrow Agreement and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Holder as compared to other Holders shall require the prior written consent of such Holder), (ii) taking all actions and making all filings on behalf of such Holders with any Governmental Body or other Person necessary to effect the consummation of the transactions contemplated by this Agreement, (iii) agreeing to, negotiating, entering into settlements and compromises of, complying with Orders with respect to, and otherwise administering and handling any claims under this Agreement and or the Escrow AgreementAgreement on behalf of such Holders, (iv) using the Representative shall act as the agent for SellerExpense Amount, all Unitholders and all other Seller Investor Partiesin its sole discretion, shall have authority to bind each such Person in accordance with this Agreementsatisfy costs, and Purchaser may rely on such appointment and authority until the receipt expenses and/or liabilities of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with matters related to this Agreement and/or Escrow Agreement as Representative, and (v) taking all other actions that are either necessary or appropriate in writing and signed the judgment of Representative for the accomplishment of the foregoing or contemplated by Representativethe terms of this Agreement or the Escrow Agreement. Representative hereby accepts such appointment. Representative shall use commercially reasonable efforts based on contact information available to Representative to keep the Holders reasonably informed with respect to actions of Representative pursuant to the authority granted 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 Representative of any change of address of such Holder.
(b) Neither A decision, act, consent or instruction of Representative nor any agent employed by Representative hereunder shall constitute a decision, act, consent or instruction of all Holders and shall be liable final, binding and conclusive upon each of such Holders, and Parent may rely upon any such decision, act, consent or instruction of Representative as being the decision, act, consent or instruction of each and every such Holder. Parent and the Escrow Agent shall be relieved from any liability to Sellerany Person for any acts done by them in accordance with such decision, any Unitholder act, consent or any other Seller Investor Party relating to the performance instruction of Representative’s duties under this Agreement for .
(c) Representative will incur no liability with respect to any errors action taken or suffered by any party in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative in the course of performance of Representative’s duties hereunder and losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which Representative is made a party by reason of the fact that Representative was acting as Representative pursuant to this Agreement; provided, however, that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud. Representative shall be protected in acting reliance upon any notice, direction, instruction, consent, statement or certificate other document believed by such Representative to be genuine and to have been furnished signed by the appropriate proper Person (and in acting shall have no responsibility to determine the authenticity thereof), nor for any other action or refusing inaction, except the fraud of Representative. In all questions arising under this Agreement or the Escrow Agreement, Representative may rely on the advice of outside counsel, and Representative will not be liable to act any Holder for anything done, omitted or suffered in good faith by Representative based on any mattersuch advice.
(cd) The Holders shall severally (each based on its Proportionate Share) but not jointly indemnify Representative and hold Representative harmless against any loss, liability or expense incurred without fraud on the part of Representative and arising out of or in connection with the acceptance or administration of Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel or other advisors reasonably retained by Representative.
(e) At any time Shareholders representing at least seventy percent (70%) in interest of the Shareholders may, by written consent, appoint a new representative as Representative. Notice together with a copy of the written consent appointing such new representative and bearing the signatures of Shareholders of at least seventy percent (70%) in interest of the Shareholders must be delivered to Parent and, if applicable, the Escrow Agent not less than ten (10) 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 Parent and, if applicable, the Escrow Agent. For the purposes of this Section 9.01, “seventy percent (70%) in interest of the Shareholders” shall mean Shareholders representing in the aggregate at least 70% of the percentage Shareholders’ interests in the Aggregate Merger Consideration.
(f) In the event that Representative resigns from becomes unable or unwilling to continue in his or its position capacity as Representative, or if Representative resigns as a successor Representative Representative, Holders representing at least seventy percent (70%) in interest of the Holders may, by written consent, appoint a new representative as Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of the Holders of at least seventy percent (70%) in interest of the Holders must be delivered to 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 Parent and, if applicable, the Escrow Agent.
(g) The grant of authority provided for herein (i) is coupled with an interest and shall be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Holder, and (ii) shall have all survive the consummation of the power, authority and rights conferred by this Agreement upon the initial Representatives and the term “Representatives” herein shall be deemed to include any successor Representative. “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not less than 50.1% of Purchase Price paid pursuant to this AgreementMerger.
Appears in 1 contract
Sources: Merger Agreement (Polyone Corp)