Representative. (a) Each Stockholder hereby designates and appoints (and each permitted Transferee of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder (the “Representative”), as its attorney-in-fact with full power of substitution, to serve as the representative of such Stockholder to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including the voting of the Subject Shares in accordance with Sections 4(a) and 4(b)), and hereby acknowledges that the Representative shall be authorized to take any action so required, authorized or contemplated by this Agreement. Each such Stockholder 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 Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Agreement, except for notices and actions taken by the Representative. Oracle is and will be entitled to 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 Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to the Representative may be chosen by a majority in interest of the Stockholders; provided that notice thereof is given by the new Representative to Oracle. (b) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints the Representative with full power of substitution, as the proxy pursuant to the provisions of Section 212 of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder 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 irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers of attorney granted with respect to any of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b).
Appears in 2 contracts
Sources: Shareholder Agreement (Ozark Holding Inc.), Shareholder Agreement (Oracle Corp /De/)
Representative. (a) Each Stockholder The Company Equityholders hereby designates and appoints (and each permitted Transferee of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder (appoint the “Representative”)Representative as the representative, as its attorney-in-fact and agent of the Company Equityholders in connection with full power the sale of substitution, to serve as the representative of such Stockholder to perform all such acts as are required, authorized or Company Shares and the other transactions contemplated by this Agreement and the Escrow Agreement and in any litigation or arbitration involving this Agreement and/or the Escrow Agreement. In connection therewith, 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, except as otherwise expressly provided in this Agreement, shall have the power and authority to:
(i) act for the Company Equityholders with regard to all matters pertaining to this Agreement and the Escrow Agreement;
(ii) act for the Company Equityholders to transact matters of arbitration or litigation;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Representative deems necessary or appropriate in connection with the sale of the Company Shares and the consummation of the other transactions contemplated by this Agreement or the Escrow Agreement;
(iv) receive funds, make payments of funds, and give receipts for funds;
(v) do or refrain from doing any further act or deed on behalf of the Company Equityholders that the Representative deems necessary or appropriate in its discretion relating to the subject matter of this Agreement or the Escrow Agreement as fully and completely as the Company Equityholders could do if personally present;
(vi) give and receive all notices required to be performed given or received by such Stockholder the Company Equityholders under this Agreement;
(including vii) give any written direction to the voting Escrow Agent;
(viii) agree to, negotiate, enter into settlements and compromises of and comply with arbitration awards and court orders with respect to claims for indemnification made by the Subject Shares Buyer under Article VII; and
(ix) receive service of process in accordance connection with Sections 4(aany claims under this Agreement and the Escrow Agreement.
(b) All decisions and 4(b)), and hereby acknowledges that actions by the Representative shall be authorized binding upon all Company Equityholders, and no Company Equityholder shall have the right to take object, dissent, protest or otherwise contest the same.
(c) At the Closing, the Buyer shall pay the Representative Expense Amount to the Representative, which Representative Expense Amount shall be maintained by the Representative in a segregated account. The Representative shall be reimbursed by the Company Equityholders (and not by the Buyer or the Company) for reasonable out-of-pocket expenses incurred in the performance of its duties (including the reasonable fees and expenses of counsel) under this Agreement from the Representative Fund and, if such fund is insufficient to pay such expenses, from the first proceeds from the Escrow Fund or Net Milestone Payments otherwise available for distribution to the Company Equityholders. Upon the determination of the Representative that the Representative Fund is no longer necessary in connection with any action so requiredclaim for indemnification under Article VII or any dispute regarding Milestone Payments, authorized or contemplated the Representative shall distribute to the Company Equityholders (solely out of the Representative Fund) the Representative Account Payment. The Representative shall hold, invest, reinvest and disburse the Representative Fund in trust for all of the Company Equityholders, and the Representative Fund shall not be used for any other purpose and shall not be available to the Buyer to satisfy any claims hereunder.
(d) The Representative shall treat confidentially and not use other than in the performance of its duties as the Representative and not disclose any information disclosed to it pursuant to this Agreement to anyone except as required by Law, provided that (i) the Representative may disclose to legal counsel and other advisors under an obligation of confidentiality and non-use in such advisor’s capacity as such (for the purpose of advising the Representative and the Company Equityholders on any information disclosed to the Representative pursuant to this Agreement. Each such Stockholder further acknowledges that ), (ii) the Representative (or legal counsel or other advisor to whom information is disclosed pursuant to clause (i) above) may disclose in any Legal Proceeding relating to this Agreement or the transactions contemplated hereby (or, in either case, discussion in preparation therefor) any information disclosed to the Representative pursuant to this Agreement and (iii) the Representative may disclose to its professional advisers and any member of its board (but not to any other Person, including any investor in any of the foregoing Persons) any information disclosed to the Representative, subject to the Persons to whom the disclosure is to be made agreeing with the Buyer in writing to restrictions on the disclosure and use of such information consistent with the restrictions to which the Representative is subject pursuant to this Section 1.7(d).
(e) The Company Equityholders may from time to time appoint another person to act as their representative, provided that such appointment shall not take effect until it has been notified to the Buyer in writing signed by or on behalf of holders of Company Securities who held, as of immediately prior to the Closing, a majority (by voting power) of the then outstanding Company Securities) (the “Required Sellers”), and designation such substituted representative shall be deemed to be coupled with an interest and the Representative for all purposes of this Agreement. Upon any replacement of the Representative, the Representative being replaced shall survive transfer to the death or incapacity new Representative the balance of such Stockholder. any unexpended Representative Expense Amount.
(f) Each such Stockholder hereby authorizes Company Equityholder agrees that:
(and each such Permitted Transferee of such Stockholder shall be deemed to have authorizedi) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Agreement, except for notices and actions taken by the Representative. Oracle is and will Buyer shall be entitled 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 action so taken disputes or claims under this Agreement and the Escrow Agreement, or any notice given other actions required or permitted to be taken by the Representative hereunder, and is and will be entitled and authorized to give notices only to no party hereunder shall have any cause of action against the Representative Buyer for any notice contemplated action taken by this Agreement to be given to any such Stockholder. A successor to the Representative may be chosen by a majority Buyer in interest reliance upon the instructions or decisions of the Stockholders; provided that notice thereof is given by the new Representative to Oracle.Representative;
(bii) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints the Representative with full power of substitution, as the proxy pursuant to the provisions of this Section 212 of the Delaware General Corporation Law 1.7 are independent and attorney of such Stockholderseverable, are irrevocable and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder 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 irrevocable. Each Stockholder hereby revokes enforceable notwithstanding any and all previous proxies rights or powers of attorney granted remedies that any Company Equityholder may have in connection with respect to any the sale of the Subject Company Shares owned and the other transactions contemplated by this Agreement;
(iii) 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
(iv) the provisions of this Section 1.7 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Equityholder, and any references in this Agreement to a Company Equityholder shall mean and include the successors to the rights of each applicable Company Equityholder hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b)otherwise.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Medicines Co /De)
Representative. (a) Each Stockholder hereby designates and appoints (and each permitted Transferee of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder ▇▇▇ ▇▇▇▇▇ (the “"Representative”), as its attorney-in-fact with full power of substitution, ") is designated by each Seller to serve as the representative of such Stockholder Seller with respect to perform all such acts as are required, authorized or contemplated by the matters expressly set forth in this Agreement to be performed by such Stockholder (including the voting of the Subject Shares in accordance with Sections 4(a) and 4(b)), and hereby acknowledges that the Representative shall be authorized to take any action so required, authorized or contemplated by this Agreement. Each such Stockholder 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 Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Agreement, except for notices and actions taken by the Representative. Oracle is Buyer and will each of its Affiliates shall be entitled to rely on any action so taken or by the Representative, on behalf of any notice given Seller (each, an "Authorized Action"), and each Authorized Action shall be binding on each Seller as fully as if such Seller had taken such Authorized Action. Buyer agrees that the Representative, as the Representative, shall have no liability to Buyer for any Authorized Action, except to the extent that such Authorized Action is found by a final order of a court of competent jurisdiction to have constituted fraud. Sellers shall jointly and severally indemnify and hold harmless the Representative against all expenses (including reasonable attorneys' fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by the Representative in connection with any action, suit, or proceeding to which the Representative is made a party by reason of the fact he is or was acting as the Representative pursuant to the terms of this Agreement. If the Representative resigns or is otherwise unable or unwilling to serve in such capacity, then ▇▇▇▇▇'▇ board of directors will appoint a new Person to serve as the Representative and will provide prompt written notice thereof to Buyer. Until such notice is and received, Buyer will be entitled to rely on the actions and authorized statements of the previous Representative. Representative shall have no liability to give notices only to the Representative any Seller (or any beneficial owner of any Seller) for any notice contemplated actions, or failure to take action, which is undertaken by this Agreement to be given to any such Stockholder. A successor to the Representative may be chosen by a majority in interest of the Stockholders; provided that notice thereof is given by the new Representative to Oraclegood faith.
(b) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints the Representative with full power of substitution, as the proxy pursuant to the provisions of Section 212 of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder 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 irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers of attorney granted with respect to any of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b).
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Spartan Motors Inc)
Representative. (a) Each Stockholder THL Entities hereby designates and appoints (and each permitted Permitted Transferee of each such Stockholder THL Entities is hereby deemed to have so designated and appointed) Chairman Stockholder each of Anthony J. DiNovi, Scott Sperling and Kent Weldon, as his attorney-in-▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇we▇ ▇▇ ▇▇▇▇▇▇▇▇▇ion f▇▇ ▇▇▇▇ ▇▇ them (the “"THL Entities' Representative”"), as its attorney-in-fact with full power of substitution, to serve as the representative of each such Stockholder person to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including the voting of the Subject Shares in accordance with Sections 4(a) and 4(b)), person and hereby acknowledges that the THL Entities' Representative shall be the only person authorized to take any action so required, authorized or contemplated by this AgreementAgreement by each such person. Each such Stockholder 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 Stockholderperson. Each such Stockholder person hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices notice or other action taken by such Stockholder person pursuant to this Agreement, Agreement except for notices and actions taken by the THL Entities' Representative. Oracle is 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 is 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 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 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 Stockholderperson. A successor to the DLJ Entities' Representative may be chosen by a majority in interest of the Stockholders; DLJ Entities' Shareholders, provided that notice thereof is given by the new DLJ Entities' Representative to Oraclethe Company and to each other DLJ Entity Shareholder.
(bc) Notwithstanding the generality of Section 6(a), each Stockholder Each Merrill Lynch Entities hereby constitutes designates and appoints the Representative (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 with full power of substitutionsubstitution for each of them (the "Merrill Lynch Entities Representative"), to serve as the proxy pursuant representativ▇ ▇▇ ▇▇c▇ ▇▇▇h person to the provisions of Section 212 of the Delaware General Corporation Law and attorney of perform all such Stockholderacts as are required, authorized or contemplated by this Agreement to be performed by such person and hereby authorizes acknowledges that the Merrill Lynch Entities Representative shall be the only person authori▇▇▇ ▇▇ t▇▇▇ ▇ny action so required, authorized or contem plated by this Agreement by each such person. Each such person further acknowledges that the foregoing appointment and empowers the Representative designation shall be deemed to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder might or could do under applicable law, rules and regulations. The proxy granted pursuant to the immediately preceding sentence is be coupled with an interest and shall be irrevocablesurvive the death or incapacity of such person. Each Stockholder such person hereby revokes 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 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 all previous proxies or powers of attorney granted with respect 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 his attorney-in-fact with full power of substituti▇▇ ▇▇▇ ▇▇▇▇ ▇▇ them (the "Management Representa- tive"), 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 hereby acknowledges that the Management 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 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 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 Subject Shares owned or held Management Shareholders, provided that notice thereof is given by such Stockholder regarding the matters referred new Management Representative to in Sections 4(a) the Company and 4(b)to each other Management Shareholder.
Appears in 1 contract
Sources: Investors' Agreement (Fisher Scientific International Inc)
Representative. (a) Each Stockholder The Sellers hereby designates irrevocably designate and appoints (and each permitted Transferee of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder appoint ▇▇▇▇▇ ▇▇▇▇▇▇ (the “Representative”), ) as its the agent and attorney-in-fact for the Sellers and the Representative is authorized and empowered to act, for and on behalf of any or all of the Sellers (with full power of substitutionsubstitution in the premises), in connection with the 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 consummation of the transactions contemplated in this Agreement, including, without limitation, to serve act as the representative of Sellers to review and authorize all set-offs, claims and other payments authorized or directed by this Section 7 and dispute or question the accuracy thereof, to compromise on their behalf with Buyer any claims asserted thereunder and to authorize payments to be made with respect thereto and to take such Stockholder to perform all such acts further actions as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including the voting of the Subject Shares in accordance with Sections 4(a) and 4(b)), and hereby acknowledges that the Representative shall be authorized to take any action so required, authorized or contemplated by this Agreement. Each such Stockholder further acknowledges In the event that the foregoing appointment and designation person serving as Representative dies or becomes disabled or resigns (by written notice to the parties), a replacement shall be deemed to designated within ten (10) days by those Sellers receiving a majority of the Purchase Price. The Representative shall not be coupled with an interest and shall survive liable, in his capacity as representative of the death or incapacity of such Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this AgreementSellers, except for notices and actions taken by the Representative. Oracle is and will be entitled to 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 Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to the Representative may be chosen by a majority in interest of the Stockholders; provided that notice thereof is given by the new Representative to Oracle.
(b) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes Seller and appoints the Representative with full power of substitution, as the proxy pursuant to the provisions of Section 212 of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder 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 irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers of attorney granted their respective affiliates with respect to any action taken or omitted to be taken by the Representative under or in connection with this Agreement in his capacity as representative of the Subject Shares owned Sellers unless such action or held omission results from or arises out of fraud, gross negligence, willful misconduct or bad faith on the part of the Representative. The Sellers acknowledge and agrees that Representative will be an employee of the Company after the Closing. Each Seller who receives any portion of the Purchase Price, by acceptance thereof and without any further action, confirms such Stockholder regarding appointment and authority and acknowledges and agrees that such appointment is irrevocable and coupled with an interest, it being understood that the matters referred willingness of Buyer to enter into this Agreement is based, in Sections 4(a) and 4(b)part, on the appointment of a representative to act on behalf of the Sellers.
Appears in 1 contract
Representative. (a) Each Stockholder Seller hereby designates and appoints (and each other Seller Party pursuant to the Required Documentation shall thereby) appoints the Representative for and on behalf of the Seller Parties to give and receive notices and 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 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 amendments to this Agreement or any Ancillary Agreement to which it is a party or to the termination hereof or thereof) required or permitted Transferee hereunder on behalf of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder Seller (the “Representative”), as its attorney-in-fact with full power of substitution, to serve as the representative of or such Stockholder to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including the voting of the Subject Shares in accordance with Sections 4(a) and 4(b)other Seller Party), and hereby acknowledges that any such action, decision or determination so made or taken shall be deemed the action, decision or determination of 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 any action so required, authorized or contemplated by this Agreement. Each such Stockholder 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 Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Agreement, except for notices and all actions taken by the Representative. Oracle is and will be entitled to 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 Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to the Representative may be chosen by a majority in interest behalf of the Stockholders; provided that notice thereof is given by the new Representative to Oracle.
(b) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints the Representative Seller Parties in connection with full power of substitution, as the proxy pursuant to the provisions of Section 212 of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof claims made under Articles 6 or otherwise) with respect to the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b) until the termination 7 of this Agreement, to defend or settle such claims, and to authorize payments in respect of such claims on behalf of the same extent 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 promptly (and no later than the effective date of the Representative’s resignation) appoint a successor Representative, in accordance with the same effect as such Stockholder might or could do under applicable law, rules and regulationsfollowing sentence. The proxy granted pursuant to Seller Parties may remove or replace the immediately preceding sentence is coupled with an interest and shall be irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers Representative by a vote of attorney granted with respect to any holders that own a majority of the Subject Shares owned Company’s capital stock immediately prior to Closing upon not less than ten (10) Business Days’ prior written notice to Buyer. No bond will be required of the Representative. Notices or held by such Stockholder regarding communications to or from the matters referred Representative will constitute notice to in Sections 4(a) and 4(b)or from each of the Seller Parties.
Appears in 1 contract
Representative. (a) Each Stockholder hereby designates and appoints (and each permitted Transferee of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder (the “Representative”), as its attorney-in-fact with full power of substitution, to The Representative shall serve as the representative agent for and on behalf of the Company Stockholders (in their capacities as such) to: (i) receive, assert, negotiate, enter into settlements and compromises of, 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 dispute between Parent and any Company Stockholder, in each case relating to perform all such acts as are required, authorized or contemplated by this Agreement or the transactions contemplated hereby or thereby; and (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 be performed seek or obtain the consent of any Person under any circumstance. Any and all Claims 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 (including in its capacity as such) (other than any claim against or dispute with the voting of the Subject Shares in accordance with Sections 4(a) and 4(b)Representative), and hereby acknowledges that the Representative shall be authorized to take any action so required, authorized asserted or contemplated by this Agreement. Each such Stockholder 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 Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Agreement, except for notices and actions taken by the Representative. Oracle is and will be entitled to rely on any action so taken or any notice given otherwise addressed solely by the Representative on behalf of such Company Stockholder (and is and will be entitled and authorized to give notices only to the Representative for any notice contemplated not by this Agreement to be given to any such StockholderCompany Stockholder acting on its own behalf). A successor to The Person serving as the Representative may be chosen replaced from time to time by the holders of a majority in interest of the Stockholders; provided that notice thereof is given shares held by the new 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 Oracleor from the Representative shall constitute notice to or from each of the Company Stockholders.
(b) Notwithstanding the generality of Section 6(a), each The Representative shall not be liable to any Company Stockholder hereby constitutes and appoints 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 full the acceptance or administration of his duties hereunder, including without limitation the legal costs and expenses of defending the Representative against any claim or liability in connection with the performance of the Representative’s duties.
(c) Notwithstanding anything herein to the contrary, the Representative is not authorized to, and shall not, accept on behalf of any holder of Company Stock any Merger Consideration to which such holder of Company Stock is entitled under this Agreement and the Representative shall not in any manner exercise, or seek to exercise, any voting power whatsoever with respect to shares of substitutioncapital 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. In all matters relating to this Article 8, as the proxy Representative shall be the only party entitled to assert the rights of the holders of Company Stock and the Representative shall perform all of the obligations of the holders of Company Stock hereunder. Representative shall promptly, and in any event within five (5) business days, provide written notice to the affected of any action taken on their behalf by the Representative pursuant to the provisions of Section 212 of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers authority delegated to the Representative under this Section 8.7.
(d) The Representative shall have reasonable access to represent, vote information about the Company and otherwise act (by voting at any meeting of the Stockholders reasonable assistance of the Company’s officers and employees for purposes of performing its duties and exercising its rights hereunder, by written consent in lieu thereof provided that the Representative shall treat confidentially and not disclose any nonpublic information from or otherwise) with respect about the Company to the Subject Shares owned or held by anyone (except on a need to know basis to individuals who agree to treat such Stockholder 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 Stockholder 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 irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers of attorney granted with respect to any of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(binformation confidentially).
Appears in 1 contract
Representative. (a) Each By execution and delivery of this Agreement, each of the Stockholders hereby appoints and designates ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as his or her representative (the "Representative") to act on behalf of each such Stockholder in connection with the transactions contemplated by this Agreement and hereby designates and appoints (and each permitted Transferee of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder (the “Representative”), Representative as its attorney-in-fact with full power to take such actions and execute such documents on behalf of substitution, to serve as the representative of each such Stockholder as may be required hereunder, including, without limitation, the following:
(i) any amendment or modification to perform all such acts as are required, authorized or contemplated by waiver of this Agreement as may be necessary or appropriate in the view of the Representative, other than any amendment or modification decreasing the amount or changing the form of the consideration to be performed received by such Stockholder Stockholders;
(including ii) any and all documents required to be executed and delivered by such Stockholders pursuant to this Agreement in order to effect the voting of the Subject Shares in accordance with Sections 4(a) and 4(b)), and hereby acknowledges that the Representative shall be authorized to take any action so required, authorized or transactions contemplated by this Agreement. Each such Stockholder further acknowledges that the foregoing appointment , including any required endorsement of stock certificates;
(iii) receive and designation shall be deemed provide receipt for all payments required to be coupled with an interest made to the Stockholders under this Agreement and shall survive distribute such payments as appropriate to the death or incapacity of such Stockholder. Each such Stockholder hereby authorizes Stockholders; and
(iv) any and each such Permitted Transferee of such Stockholder shall all actions required to be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Agreement, except Stockholders in connection with any claim for notices and actions taken by the Representative. Oracle is and will be entitled to 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 Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to the Representative may be chosen by a majority in interest of the Stockholders; provided that notice thereof is given by the new Representative to Oracle.
(b) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints the Representative with full power of substitution, as the proxy indemnity pursuant to the provisions of Section 212 9, 10 or 11 of this Agreement or any other claim made by the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect La Salle Partnerships pursuant to the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b) until the termination provisions of this Agreement, to .
(b) It is acknowledged by the same extent and with Stockholders appointing the same effect Representative that the designation of the Representative as such Stockholder might or could do under applicable law, rules and regulations. The proxy granted pursuant to the immediately preceding sentence attorney-in-fact is coupled with an interest and is therefore irrevocable and binding upon such Stockholders notwithstanding the death, incapacity or dissolution of any such Stockholder. If any such event shall be irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers of attorney granted with respect occur prior to any the completion of the Subject Shares owned or held transactions contemplated by this Agreement, the Representative is, nevertheless, to the extent that he is legally able to do so, authorized and directed to complete all transactions and act pursuant to this authority as if such Stockholder regarding event had not occurred. The La Salle Partnerships are entitled to deal solely with the matters referred Representative in connection with this Agreement and are entitled to in Sections 4(a) rely upon the provisions hereof and 4(b)the authority granted to the Representative to act on behalf of the Stockholders named herein.
Appears in 1 contract
Sources: Contribution and Exchange Agreement (Lasalle Partners Inc)
Representative. (a) Each Stockholder The Company hereby designates irrevocably appoints the Representative as each Unitholder’s true and appoints (and each permitted Transferee of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder (the “Representative”)lawful representative, as its attorney-in-fact and agent of the Unitholders in connection with full power of substitution, to serve as the representative of such Stockholder to perform all such acts as are required, authorized or transactions contemplated by this Agreement and in any litigation or arbitration involving this Agreement. By its approval of the Merger and the adoption of this Agreement and/or its acceptance of any consideration pursuant to this Agreement, each Unitholder hereby irrevocably approve and adopt the appointment of the Representative. In connection therewith, 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 completely as the Unitholders could do if personally present;
(vi) give and receive all notices required to be performed 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 Stockholder 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 voting 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 Subject Shares in accordance with Sections 4(a) and 4(b)Representative’s bad faith or willful misconduct), including the costs and hereby acknowledges 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 be authorized treat confidentially and not disclose any nonpublic information from or about the Company to take anyone except (i) in connection with any action so requireddisputes arising out of or in connection with this Agreement and (ii) as required by law or to its employees, authorized advisors or contemplated 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. Each .
(d) In the event the Representative becomes unable to perform the Representative’s responsibilities hereunder or resigns from such Stockholder further acknowledges that position, the foregoing appointment 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 designation 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 coupled with an interest and shall survive the death or incapacity Representative for all purposes of such Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Agreement. The Representative may be removed only upon delivery of written notice to Parent signed by persons who, except for notices as of immediately prior to the Effective Time, held a majority (measured on an as-exercised and actions taken by as-converted basis) of the Representative. Oracle is and will 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 action so taken disputes or claims under this Agreement, or any notice given other actions required or permitted to be taken by the Representative hereunder, and is and will be entitled and authorized to give notices only to the Representative no party hereunder or any Unitholder shall have any cause of action against Parent for any notice contemplated action taken by this Agreement to be given to any such Stockholder. A successor to Parent in reliance upon the Representative may be chosen by a majority in interest instructions or decisions of the Stockholders; provided that notice thereof is given by the new Representative to Oracle.Representative;
(bii) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints the Representative with full power of substitution, as the proxy pursuant to the provisions of this Section 212 of the Delaware General Corporation Law 9.19 are independent and attorney of such Stockholderseverable, and hereby authorizes and empowers the Representative are irrevocable (subject only to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(aSection 9.19(e)) and 4(b) until the termination of this Agreement, to the same extent and with the same effect as such Stockholder 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 irrevocable. Each Stockholder hereby revokes enforceable notwithstanding any rights or remedies that any Unitholder may have in connection with the transactions contemplated by this Agreement; and
(i) the provisions of this Section 9.19 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and all previous proxies successors of each Unitholder, and any references in this Agreement to a Unitholder shall mean and include the successors to the rights of each applicable Unitholder hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or powers of attorney granted with respect to any of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b)otherwise.
Appears in 1 contract
Representative. (a) Each Stockholder hereby designates For purposes of this Agreement, the "Representative" shall be Deep▇▇ ▇▇▇▇ ▇▇▇, if she/he shall be unable to act as Representative, the Archetype Stockholders of record (acting by majority vote of the common and appoints (and each permitted Transferee of each such Stockholder is hereby deemed preferred stockholders, voting together as a single class) shall appoint a successor Representative to have so designated and appointed) Chairman Stockholder (the “Representative”), as its attorney-in-fact with full power of substitution, to serve act thereafter as the representative of such Stockholder to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including Representative. In the voting of the Subject Shares in accordance with Sections 4(a) and 4(b)), and hereby acknowledges event that the Representative determines in his or her sole discretion that the interests of the Archetype Shareholders would be better served by the appointment of a new Representative, he or she shall so notify the Archetype Shareholders and shall be authorized entitled to take any action 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 requiredby Bitstream or A-Sub, authorized or contemplated by this Agreement. Each then Bitstream shall elect a successor Representative from among the Archetype Stockholders and such Stockholder further acknowledges that the foregoing appointment and designation choice shall be deemed to binding upon each of the Archetype Stockholders; provided, that any Representative selected by Bitstream may be coupled with an interest and shall survive replaced by a vote of a majority of the death or incapacity Archetype Stockholders.
(b) By adoption of such Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder the Agreement as required by Delaware law, the Archetype Shareholders shall be deemed to have authorizedirrevocably 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 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 set forth in the Noncompetition Agreement to be executed by holders of Archetype Options (other parties hereto than Disqualified Options) and the Lock-Up Agreements to disregard be executed by directors, officers and 5% stockholders of Archetype.
(d) The Representative shall act, without compensation, on behalf of the Archetype Shareholders, and the Representative shall not be liable to any notices or other Archetype Shareholder for any action taken by in good faith on behalf of such Stockholder pursuant to this Agreement, except for notices Archetype Shareholder.
(e) Bitstream and actions taken by the Representative. Oracle is and will A-Sub shall be entitled to 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 Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to the Representative may be chosen by a majority in interest of the Stockholders; provided that notice thereof is given by the new Representative to Oracle.
(b) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints the Representative with full power and authority of substitution, as the proxy pursuant to the provisions of Section 212 of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting hereunder on behalf of the Stockholders of the CompanyArchetype Shareholders, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder 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 not be irrevocable. Each Stockholder hereby revokes liable in any way whatsoever for any action it takes or omits to take in reliance upon such power and all previous proxies or powers of attorney granted with respect to any of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b)authority.
Appears in 1 contract
Sources: Merger Agreement (Bitstream Inc)
Representative. (a) Each Stockholder THL Entities hereby designates and appoints (and each permitted Permitted Transferee of each such Stockholder THL Entities is hereby deemed to have so designated and appointed) Chairman Stockholder (the “Representative”)each of Anthony J. DiNovi, as its attorneyScott Spe▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ld▇▇, ▇▇ ▇▇▇ ▇▇▇orney-▇▇-in-fact with ▇▇▇▇ ▇▇th full power of substitutionsubstitution for each of them (the "THL Entities' Representative"), to serve as the representative of each such Stockholder person to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including the voting of the Subject Shares in accordance with Sections 4(a) and 4(b)), person and hereby acknowledges that the THL Entities' Representative shall be the only person authorized to take any action so required, authorized or contemplated by this AgreementAgreement by each such person. Each such Stockholder 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 Stockholderperson. Each such Stockholder person hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices notice or other action taken by such Stockholder person pursuant to this Agreement, Agreement except for notices and actions taken by the THL Entities' Representative. Oracle is 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 is 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 Stockholderperson. A successor to the THL Entities' Representative may be chosen by a majority in interest of the Stockholders; THL Entities' Shareholders, provided that notice thereof is given by the new THL Entities' Representative to Oraclethe Company and to each Non-THL Shareholder.
(b) Notwithstanding the generality of Section 6(a), each Stockholder Each DLJ Entities hereby constitutes designates and appoints the Representative (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 substitutionsubstitution 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 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 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 with full power of substitution for each of them (the proxy pursuant "Merrill Lynch Entities Repre▇▇▇▇▇▇▇v▇"), to serve as the provisions representative of Section 212 of the Delaware General Corporation Law and attorney of each such Stockholderperson to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such person and hereby authorizes acknowledges that the Merrill Lynch Entities Repre▇▇▇▇▇▇▇v▇ ▇▇▇ll 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 empowers the Representative designation shall be deemed to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder might or could do under applicable law, rules and regulations. The proxy granted pursuant to the immediately preceding sentence is be coupled with an interest and shall be irrevocablesurvive the death or incapacity of such person. Each Stockholder such person hereby revokes 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 all previous proxies will be entitled to rely on any action so taken or powers of attorney granted with respect any notice given by the 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 Subject Shares owned 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 appoints (and each Permitted Transferee of each such Management Shareholder is hereby deemed to have so designated and appointed) Paul M. Meister, as his atto▇▇▇▇-▇▇-▇▇▇▇ ▇▇th full power of substitution for each of them (the "Management Representative"), to serve as the representative of each such person to perform all such acts as are required, authorized or held contemplated by this Agreement to be performed by such Stockholder regarding person and hereby acknowledges that the matters referred Management 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 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 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 Sections 4(a) interest of the Management Shareholders, provided that notice thereof is given by the new Management Representative to the Company and 4(b)to each other Management Shareholder.
Appears in 1 contract
Sources: Investors' Agreement (Donaldson Lufkin & Jenrette Inc /Ny/)
Representative. (a) Each Stockholder The Company hereby designates agrees that G▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ shall be appointed as the Representative and appoints (and each permitted Transferee of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder (as the “Representative”), as its attorney-in-fact with full power for and on behalf of substitution, to serve as the representative of such Stockholder to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including the voting of the Subject Shares in accordance with Sections 4(a) and 4(b))each Stockholder, and is hereby acknowledges that the Representative shall be authorized to take any action so required, authorized and all actions and make any and all decisions required or contemplated by this Agreement. Each such Stockholder further acknowledges that the foregoing appointment and designation shall be deemed permitted to be coupled 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 an interest respect to the Final Closing Statement or any Earn-Out Statement, (ii) agree to, negotiate, enter into settlements and shall survive 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 in the death or incapacity judgment of such Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee the Representative for the accomplishment of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to terms, conditions and limitations of this Agreement, except for notices the Ancillary Agreements and any transactions contemplated herein and therein. Accordingly, the Representative has the authority and power to act on behalf of each Stockholder with respect to this Agreement or any Ancillary Agreement to which any Stockholder is a party. Each Stockholder will be bound by all actions taken by the Representative in connection with this Agreement and Parent shall only be required to acknowledge or act upon a written communication signed by the Representative. Oracle is and will be entitled to 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 Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to the Representative Such agency may be chosen by a majority in interest of the Stockholders; provided that notice thereof is given by the new Representative to Oracle.
(b) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints the Representative with full power of substitution, as the proxy pursuant to the provisions of Section 212 of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) changed with respect to the Subject Shares owned Representative by the majority of the Stockholders 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 held (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 liable to the Stockholders for any act done or omitted hereunder as the Representative while acting in good faith and in the exercise of reasonable judgment, even if such act or omission constitutes negligence on the part of the 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 Stockholder regarding professionals, and any action taken by the matters referred Representative based on such reliance shall be deemed conclusively to have been taken in Sections 4(agood 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 the part of the Representative (so long as the Representative was acting in good faith in connection therewith) and 4(b) until the termination arising out of this Agreement, to the same extent and or in connection with the same effect as such Stockholder might acceptance 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 irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers of attorney granted with respect to any administration of the Subject Shares owned or held Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b)Representative.
Appears in 1 contract
Sources: Merger Agreement (JetPay Corp)
Representative. (a) Each Stockholder By the execution and delivery of this Agreement, including counterparts hereof, each Shareholder hereby designates irrevocably constitutes and appoints (▇▇▇▇▇ ▇▇▇▇▇▇▇ as the true and each permitted Transferee lawful agent and attorney-in-fact of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder Shareholder with full powers of substitution (the “Representative”), as its attorney-in-fact with full power and, if substituted, the Representative shall promptly notify Buyer of such substitution, to serve as act in the representative name, place and stead of such Stockholder to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including the voting of the Subject Shares in accordance Shareholder with Sections 4(a) and 4(b)), and hereby acknowledges that the Representative shall be authorized to take any action so required, authorized or contemplated by this Agreement. Each such Stockholder 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 Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant respect to this Agreement, except for notices as the same may be from time to time amended, and actions taken with respect to the transfer of such Shareholder’s Company Stock to Buyer pursuant hereto and the transactions contemplated hereby, and to do or refrain from doing all such acts and things, and to execute all such documents, as the Representative shall deem necessary or appropriate in connection with this Agreement, the Ancillary Documents or any of the transactions contemplated hereby or thereby. In the event of the death or other incapacity of the then current Representative, or resignation of the Representative, Shareholders which on the date hereof hold a majority of the Company Stock, shall, by any writing executed by the Representative. Oracle is appropriate number of Shareholders and will be entitled to 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 Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to the Representative may be chosen by a majority in interest of the Stockholders; provided that notice thereof is given by the new Representative (counterparts and facsimiles of signatures acceptable) approve and appoint a new Representative by delivering a written notice to Oraclethat effect, whereupon the person designated in such notice shall be the new Representative with respect to all actions taken and/or documents signed from and after actual receipt by Buyer of such notice.
(b) Notwithstanding Without limiting the generality of Section 6(a)the foregoing, each Stockholder hereby constitutes and appoints the Representative is hereby authorized (i) to receive any payment owing to the Shareholders pursuant to Section 2.3, (ii) to execute the Escrow Agreement on behalf of the Shareholders, and (iii) to take all actions on behalf of the Shareholders in connection with full power any actions taken or to be taken under Section 2.3 of substitution, as this Agreement (including accepting service of process upon the proxy Shareholders and accepting or compromising any claim relating to the Proposed Purchase Price Calculation). The Representative and the Shareholders hereby agree that any amounts disbursed out of the Escrow Account to the Representative pursuant to the provisions terms of Section 212 of this Agreement and/or the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers Escrow Agreement shall be distributed by the Representative to representthe Shareholders in accordance with Schedule 1 and Exhibit B, vote as applicable. All decisions and otherwise act (by voting at any meeting actions of the Stockholders Representative permitted hereunder shall be final, binding and conclusive on the Shareholders and may be relied upon by Buyer and its Affiliates as the decisions and actions of all of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder might or could do under applicable law, rules and regulationsShareholders. The proxy granted pursuant to the immediately preceding sentence is coupled with an interest and Representative shall not be irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers of attorney granted with respect liable to any of the Subject Shares owned Shareholders for any act done or held omitted by such Stockholder regarding him in good faith pursuant to this Agreement or any mistake of fact or Law unless caused by his own gross negligence or willful misconduct, and the matters referred Shareholders shall jointly and severally indemnify the Representative from any Losses arising out of his serving as Representative hereunder. In taking any action or refraining from taking any action whatsoever the Representative shall be protected in relying upon any notice, paper or other document reasonably believed by him to be genuine, or upon any evidence reasonably deemed by him to be sufficient. The Representative may consult with counsel in Sections 4(a) connection with his duties and 4(b)shall be fully protected in any act taken, suffered or permitted by him in good faith in accordance with the advice of counsel.
Appears in 1 contract
Sources: Stock Purchase Agreement (McJunkin Red Man Holding Corp)
Representative. (a) Each Stockholder In order to efficiently administer certain matters contemplated hereby designates following the Closing, including any actions that the Representative may, 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 appoints 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 perform his, her or its responsibilities hereunder or resigns from such position, the Share Recipients, who together are entitled to a majority of the Total Consideration at such time shall be authorized to and each permitted Transferee of each shall select another representative to fill such Stockholder is hereby vacancy and such substituted representative shall be deemed to have so designated be the Representative for all purposes of this Agreement and appointedthe documents delivered pursuant hereto.
(c) Chairman Stockholder By their adoption of this Agreement and acceptance of consideration under this Agreement, the Share Recipients hereby agree, in addition to the foregoing, that:
(i) the “Representative”)Representative shall constitute the true and lawful representative, as its agent and attorney-in-fact of each Share Recipients with full 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 in general to serve as the representative of such Stockholder do all things and to perform all such acts as are requiredincluding, authorized 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 sole discretion, determine to be performed 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 such Stockholder the Share Recipients individually), (including 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 voting 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 Subject Shares 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 accordance with Sections 4(a) and 4(b))this Section 3.6, and hereby acknowledges that 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 actions, decisions and instructions of the Representative shall be authorized to take 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 so requiredtaken, authorized 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. Each such Stockholder further acknowledges that ;
(vii) the foregoing appointment and designation provisions of this Section 3.6 shall be deemed binding upon the executors, heirs, legal representatives successors and assigns of each Share Recipient and any references in this Agreement to be coupled with an interest any Share Recipient (or them collectively) shall mean and include the 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 survive the death have no duties or incapacity of obligations hereunder, except those expressly set forth herein, and such Stockholder. Each such Stockholder hereby authorizes (duties and each such Permitted Transferee of such Stockholder obligations shall be deemed to have authorizeddetermined solely by the express provisions of this Agreement.
(d) the other parties hereto to disregard any notices or other action taken by such Stockholder The Representative will incur no liability in connection with its services pursuant to this AgreementAgreement and any related agreements except to the extent resulting from its bad faith, except gross negligence or willful misconduct. The Representative shall not be liable for notices any action or omission pursuant to the advice of counsel. The Share Recipients shall, severally, and actions taken not jointly, indemnify the Representative against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, 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 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 advance its own funds on behalf of the Share Recipients or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Share Recipients set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative. Neither the Company nor Parent shall have any liability to the Representative in connection with the provision of such services under this Section 3.6.
(e) On or prior to the Closing Date, the Company will wire $[***] (the “Expense Fund”) to the Representative, which will be used for any expenses incurred by the Representative. Oracle is The Share Recipients will not receive any interest or earnings on the Expense Fund and will be entitled to rely on any action so taken or any notice given by the Representative irrevocably transfer and is and will be entitled and authorized to give notices only 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 event of bankruptcy. As soon as practicable following the completion of the Representative’s 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 paid through Parent’s or Surviving Corporation’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 Share Recipients at the time of Closing. The parties agree that the Representative is not responsible for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to tax reporting or withholding in connection with the Representative may be chosen by a majority in interest distribution of the Stockholders; provided that notice thereof is given by the new Representative to OracleExpense Fund.
(b) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints the Representative with full power of substitution, as the proxy pursuant to the provisions of Section 212 of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder 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 irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers of attorney granted with respect to any of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b).
Appears in 1 contract
Sources: Merger Agreement (Athenex, Inc.)
Representative. (a) Each Stockholder To the fullest extent permitted by law, each Shareholder hereby designates irrevocably constitutes and appoints (and each permitted Transferee of each ▇▇▇▇▇▇ ▇▇▇▇▇▇ as such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder (the “Representative”), as its Shareholder's attorney-in-fact and legal and judicial representative (the "Representative"), with full power of substitution, for the purposes of: (i) receiving all notices and communications directed to serve any Shareholder under this Agreement and taking any action (or determining to take no action) with respect thereto as the representative of such Stockholder to perform all such acts as are requiredRepresentative may deem appropriate, authorized or contemplated by this Agreement to be performed by such Stockholder (including the voting settlement or compromise on behalf of the Subject Shares in accordance with Sections 4(a) and 4(b))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. Each Shareholder hereby acknowledges ratifies and confirms, as the Shareholder's own act, all that the Representative shall be authorized to take any action so required, authorized do or contemplated by this Agreement. Each such Stockholder further acknowledges that the foregoing appointment and designation shall be deemed cause to be coupled with an interest and shall survive the death or incapacity of such Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder done pursuant to this Agreement, except for notices and actions taken by the Representative. Oracle is and will be entitled to 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 Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to the Representative may be chosen by a majority in interest of the Stockholders; provided that notice thereof is given by the new Representative to Oracle.
(b) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints If the Representative with full power of substitutionresigns, as ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall automatically become the proxy pursuant successor representative (the "Successor Representative"). The resigning Representative's resignation shall not be effective until the Successor Representative shall have agreed in writing to accept such appointment. If the provisions of Section 212 Representative should die or become incapacitated, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall automatically become the Successor Representative. Upon acceptance by a Successor Representative of the Delaware General Corporation Law and attorney of such StockholderSuccessor Representative's appointment, and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder 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 appointment shall be irrevocable. final and binding on the Shareholders.
(c) Each Stockholder hereby revokes any and all previous proxies or powers of attorney granted 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 Shareholder if delivered by registered or certified mail, postage prepaid with return receipt requested to the Representative at the Representative's address set forth in Section 4.1, whom each Shareholder irrevocably appoints as its authorized agent for service of process.
(d) The death or incapacity of any Shareholder shall not terminate the authority and agency of the Subject Shares owned Representative.
(e) Each Shareholder hereby agrees to indemnify the Representative and to hold the Representative harmless against any loss, liability or held 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, including court costs and attorneys' fees and expenses incurred by such Stockholder regarding the matters referred Representative in defending against any Third Party Claim or Losses in connection with this Agreement, unless the Representative shall have received written notice from the other Shareholder to in Sections 4(a) and 4(b)the effect that the Representative no longer represents the other Shareholder.
Appears in 1 contract
Representative. (a) Each Stockholder hereby designates and appoints (and each holder of In the Money Options shall appoint in his or her respective Option Cancellation Agreement) the Representative for and on behalf of Stockholders to give and receive notices and communications in connection with this Agreement and the transactions contemplated hereby, to authorize 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 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 amendments to this Agreement or any Ancillary Agreement to which it is a party or to the termination hereof or thereof) required or permitted Transferee 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 each such Stockholder, 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 Stockholder is hereby hereunder or pursuant to any Ancillary Agreement shall be deemed so given if given to have so designated and appointed) Chairman Stockholder (the “Representative”). Without limiting the generality of the foregoing, as its attorney-in-fact the Representative shall be authorized, in connection with full power of substitutionthe Closing, to serve as execute all certificates, documents and agreements on behalf of and in the representative name of such Stockholder Stockholders necessary to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including effectuate the voting of the Subject Shares in accordance with Sections 4(a) Closing and 4(b)), and hereby acknowledges that the related transactions. The Representative shall be authorized to take all actions on behalf of the Stockholders in connection with any action so required, authorized claims made under Articles 8 or contemplated by this Agreement. Each such Stockholder further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the death or incapacity 9 of such Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Agreement, except for notices to defend or settle such claims, and actions taken to make payments in respect of such claims on behalf of Stockholders. The Stockholders may remove or replace the Representative by a vote of holders that owned a majority of the 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. Oracle is 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 claim hereunder against a single Participating Equityholder, and not any other Participating Equityholders, such affected Participating Equityholder shall be entitled to rely on any action so taken or any notice given by control the Representative and is and will be entitled and authorized to give notices only to the Representative for any notice contemplated by this Agreement to be given to any defense of such Stockholder. A successor to the Representative may be chosen by a majority in interest of the Stockholders; provided that notice thereof is given by the new Representative to Oracleclaim.
(b) Notwithstanding The Representative will not be liable for any act done or omitted hereunder as the generality Representative, except in the case of Section 6(a)its bad faith or willful misconduct. The Representative may consult with legal counsel, each Stockholder hereby constitutes independent public accountants and appoints 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 be taken in good faith by it in accordance with full power the advice of substitutionsuch counsel, accountants or experts. Stockholders will severally indemnify the Representative and hold the Representative harmless against any Adverse Consequences incurred on the part of the Representative and arising out of or in connection with the acceptance or administration of the Representative’s duties hereunder. Buyer agrees that except as may be provided in Article 8 if the proxy pursuant Representative is also a Participating Equityholder, it will not look to the provisions of Section 212 Representative or the underlying assets of the Delaware General Corporation Law Representative for the satisfaction of any obligations of the Company or any of the Participating Equityholders
(c) A decision, act, consent or instruction of the Representative will constitute a decision of all Stockholders and attorney of will be final, binding and conclusive upon each such -75- Stockholder, and hereby authorizes and empowers 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 representany Person for any acts done by such Buyer Indemnitees in accordance with such decision, vote and otherwise act (by voting at any meeting act, consent or instruction of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder 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 irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers of attorney granted with respect to any of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b)Representative.
Appears in 1 contract
Sources: Merger Agreement (Allscripts Healthcare Solutions, Inc.)
Representative. (a) Each Stockholder THL Entities hereby designates and appoints (and each permitted Permitted Transferee of each such Stockholder THL Entities is hereby deemed to have so designated and appointed) Chairman Stockholder (the “Representative”)each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇, as its his attorney-in-fact with full power of substitutionsubstitution for each of them (the "THL Entities' Representative"), to serve as the representative of each such Stockholder person to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including the voting of the Subject Shares in accordance with Sections 4(a) and 4(b)), person and hereby acknowledges that the THL Entities' Representative shall be the only person authorized to take any action so required, authorized or contemplated by this AgreementAgreement by each such person. Each such Stockholder 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 Stockholderperson. Each such Stockholder person hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices notice or other action taken by such Stockholder person pursuant to this Agreement, Agreement except for notices and actions taken by the THL Entities' Representative. Oracle is 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 is 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 Stockholderperson. A successor to the THL Entities' Representative may be chosen by a majority in interest of the Stockholders; THL Entities' Shareholders, provided that notice thereof is given by the new THL Entities' Representative to Oraclethe Company and to each Non-THL Shareholder.
(b) Notwithstanding the generality of Section 6(a), each Stockholder Each DLJ Entities hereby constitutes designates and appoints the Representative (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 substitutionsubstitution 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 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 DLJ Entity Shareholder.
(c) Each ▇▇▇▇▇▇▇ ▇▇▇▇▇ Entities hereby designates and appoints (and each Permitted Transferee of each such ▇▇▇▇▇▇▇ ▇▇▇▇▇ Entities is hereby deemed to have so designated and appointed) KECALP Inc., as his attorney-in-fact with full power of substitution for each of them (the proxy pursuant "▇▇▇▇▇▇▇ ▇▇▇▇▇ Entities Representative"), to serve as the provisions representative of Section 212 of the Delaware General Corporation Law and attorney of each such Stockholderperson to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such person and hereby authorizes acknowledges that the ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 empowers the Representative designation shall be deemed to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder might or could do under applicable law, rules and regulations. The proxy granted pursuant to the immediately preceding sentence is be coupled with an interest and shall be irrevocablesurvive the death or incapacity of such person. Each Stockholder such person hereby revokes 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 all previous proxies will be entitled to rely on any action so taken or powers of attorney granted with respect any notice given by the ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 Subject Shares owned ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 appoints (and each Permitted Transferee of each such Management Shareholder is hereby deemed to have so designated and appointed) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as his attorney-in-fact with full power of substitution for each of them (the "Management Representative"), to serve as the representative of each such person to perform all such acts as are required, authorized or held contemplated by this Agreement to be performed by such Stockholder regarding person and hereby acknowledges that the matters referred Management 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 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 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 Sections 4(a) interest of the Management Shareholders, provided that notice thereof is given by the new Management Representative to the Company and 4(b)to each other Management Shareholder.
Appears in 1 contract
Sources: Investors' Agreement (Fisher Scientific International Inc)
Representative. (a) Each Stockholder of the Sellers hereby designates appoints ▇▇▇▇ ▇▇▇▇▇ and appoints (▇▇▇▇ ▇▇▇▇▇▇▇▇ as its, his or her exclusive agent and each permitted Transferee of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder (the “Representative”), as its attorney-in-fact (the “Representatives”)
(a) to give and receive notices and communications with full power respect to the provisions of substitution, to serve as the representative of such Stockholder to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including the voting of the Subject Shares in accordance with Sections 4(a) and 4(b)under ARTICLE VIII hereof), (b) to amend the terms of this Agreement (but not individual contracts, the forms of which may be attached hereto or incorporated herein by reference), (c) to agree to, negotiate, enter into settlements or compromises of matters arising under the provisions of this Agreement and hereby acknowledges that the Representative shall be authorized (d) to take any action so required, authorized and all actions necessary or contemplated by this Agreement. Each such Stockholder further acknowledges that appropriate in the foregoing appointment and designation shall be deemed judgment of the Representatives to be taken on behalf of Sellers under such provisions of this Agreement (including under ARTICLE VIII hereof). Such agency is irrevocable and coupled with an interest and shall survive interest. Upon the death or incapacity of such Stockholder. Each such Stockholder hereby authorizes (either Representative, or his ceasing to be an employee or independent contractor of the Company or any Affiliate, the remaining Representative shall be the sole Representative and each such Permitted Transferee shall notify the Parent of such Stockholder change in writing. Upon the death or incapacity of both Representatives, or their both ceasing to be an employee or independent contractor of the Company or any Affiliate, the Sellers, acting as a group with voting power based on voting power held by Sellers in the voting securities of the Company prior to the Closing Date shall appoint a successor Representative and shall notify the Parent of such successor in writing. Any successor Representative must be an employee of the Company or any Affiliate. Notwithstanding the foregoing, no bond shall be deemed required of the Representatives and Sellers shall be responsible for the expenses of the Representatives incurred in the course of their duties as Representative, including reasonable attorneys’ fees. Notices or communications to have authorized) the other parties hereto or from a Representative shall constitute notice to disregard any notices or other action taken by such Stockholder pursuant from Sellers in respect of matters relating to this Agreement. Any decision, except for notices and actions taken by the Representative. Oracle is and will be entitled to rely on any action so taken act, consent or any notice given by the instruction of a Representative and is and will be entitled and authorized to give notices only to the Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to the Representative may be chosen by shall constitute a majority in interest decision, act or consent of the Stockholders; provided that notice thereof is given by the new Representative to Oracle.
(b) Notwithstanding the generality of Section 6(a)all Sellers, each Stockholder hereby constitutes and appoints the Representative with full power of substitution, as the proxy pursuant to the provisions of Section 212 of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder 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 irrevocable. Each Stockholder hereby revokes final, binding and conclusive upon each Seller, and Parent may rely upon any decision, act, consent or instruction of a Representative as being the decision, act, consent or instruction of each and all previous proxies or powers of attorney granted with respect to any of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b)every Seller.
Appears in 1 contract
Sources: Stock Purchase Agreement (Ladenburg Thalmann Financial Services Inc)
Representative. (a) Each Stockholder hereby designates and Shareholder irrevocably appoints (and each permitted Transferee of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder Min Juang (the “Representative”), ) with power of designation and assignment as its true and lawful attorney-in-fact and agent with full power of substitution, to serve act solely and exclusively 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 Representative in its sole discretion deems appropriate, the powers which such Shareholder could exercise under the provisions of this Agreement and to take all actions necessary or appropriate in the judgment of the Representative in connection with this Agreement, which shall include the power and authority to amend, modify, waive or provide consent with respect to, any provision of this Agreement and to execute, deliver and accept such waivers and consents and any and all notices, documents, certificates or other papers to be delivered in connection with this Agreement and the 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 Stockholder to perform all such acts as are required, authorized or contemplated by this Agreement Shareholder if the consideration to be performed received by such Stockholder (including Shareholder pursuant to Article II hereof will be reduced by the voting proposed amendment or if such Shareholder will be disproportionately and adversely affected by the proposed amendment relative to the other Shareholders of the Subject Shares same class. The Representative shall have the power to waive, on behalf of each Shareholder, any attorney-client privileges in accordance connection with Sections 4(a) communications between such Shareholder and 4(b))counsel to the Acquired Companies in connection with the transactions contemplated hereunder. The Buyer and the Buyer Indemnitees, if applicable, will be entitled to rely exclusively upon any notices and hereby acknowledges that 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 each Shareholder to the Representative shall be authorized to take any action so required, authorized or contemplated by this Agreement. Each such Stockholder further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest and all authority conferred hereby shall survive the be irrevocable whether by death or incapacity of such Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Agreement, except for notices and actions taken by the Representative. Oracle is and will be entitled to 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 Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to Shareholder or the Representative may be chosen by a majority in interest occurrence of the Stockholders; provided that notice thereof is given by the new Representative to Oracleany other event or events.
(b) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes Each Shareholder acknowledges and appoints agrees that the Representative with full power of substitution, will not be liable to such Shareholder for any act done or omitted hereunder as the proxy Representative while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to the provisions advice of Section 212 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 Delaware General Corporation Law Representative and attorney arising out of such Stockholder, and hereby authorizes and empowers or in connection with the acceptance or administration of its duties under this Agreement.
(c) The Shareholders will reimburse the Representative to representfor their pro rata share, vote of any out-of-pocket, independent, third-party fees and otherwise act expenses (including fees and expenses of counsel, accountants and other advisors) incurred by voting at any meeting the Representative that arise out of or are in connection with the acceptance or administration of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b) until the termination of Representative’s duties under this Agreement, to the same extent and with the same effect as such Stockholder 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 irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers of attorney granted with respect to any of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b).
Appears in 1 contract
Sources: Share Purchase Agreement (ALPHA & OMEGA SEMICONDUCTOR LTD)
Representative. (a) Each Stockholder hereby designates Indemnitor appoints ▇▇▇▇▇▇▇ ▇▇, represented by ▇▇. ▇▇▇▇▇▇▇▇ Staehelinas as the Representative as the Indemnitor’s agent and appoints (true and each permitted Transferee of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder (the “Representative”), as its lawful attorney-in-fact with full power the powers and authority as set forth in this Agreement, and the Representative hereby accepts such appointment. The Representative shall be the exclusive agent for and on behalf of substitution, the Indemnitors to serve as the representative of such Stockholder (1) give and receive notices and communications to perform all such acts as are required, authorized or contemplated by from Purchaser relating to this Agreement to be performed by such Stockholder (including the voting or any of the Subject other Transactions, other than in connection with Direct Shareholder Claims; (2) authorize deliveries to Purchaser of cash or Consideration Shares and legally bind each Indemnitor to pay cash or deliver or Consideration Shares directly to Purchaser in satisfaction of claims asserted by Purchaser by not objecting to such claims), other than in connection with Direct Shareholder Claims; (3) object to such claims in accordance with Sections 4(aSection 8.7, other than in connection with Direct Shareholder Claims; (4) consent or agree to, negotiate, enter into settlements and 4(b)compromises of, and demand arbitration and comply with Orders with respect to, such claims, other than in connection with Direct Shareholder Claims; (5) 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, other than in connection with Direct Shareholder Claims, (6) subject to Section 7.3, execute for and on behalf of each Indemnitor any amendment to this Agreement or any exhibit, annex or schedule hereto (including for the purpose of amending addresses or sharing percentages), and hereby acknowledges that the (7) subject to Section 7.4, execute for and on behalf of each Indemnitor any waiver or extension to this Agreement. The Representative shall be authorized the sole and exclusive means of asserting or addressing any of the above, and no Indemnitor shall have any right to take act on its own behalf with respect to any action so requiredsuch matters, authorized other than any claim or contemplated by this Agreement. Each such Stockholder 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 Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Agreement, except for notices and actions taken by dispute against the Representative. Oracle is This appointment of agency and will be entitled to 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 Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to the Representative may be chosen by a majority in interest of the Stockholders; provided that notice thereof is given by the new Representative to Oracle.
(b) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints the Representative with full power of substitution, as the proxy pursuant to the provisions of Section 212 of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder 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 will be irrevocable and will not be terminated by any Indemnitor or by operation of Law, whether by the death or incapacity of any Indemnitor or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnitor or the Representative will have received any notice thereof.
(b) Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Representative that is within the scope of the Representative’s authority under this Agreement, including Sections 1.2, 1.5 and 8.8(a), shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all Shareholders or Indemnitors, as the case may be, and shall be irrevocablefinal, binding and conclusive upon each of them. Each Stockholder hereby revokes Purchaser shall be entitled to rely upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and all previous proxies every such Shareholder or Indemnitor. Purchaser is unconditionally and irrevocably relieved from any liability to any person for any acts done by them in accordance with any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent or instruction of the Representative.
(c) The scope of the powers of attorney granted the Representative as agent for the Indemnitors may be changed, and the Person serving as the Representative may be replaced from time to time, by the vote or consent of Indemnitors representing a majority of the Consideration Percentage of all Indemnitors upon not less than thirty (30) days’ prior written notice to Purchaser. A vacancy in the position of the Representative may be filled by the vote or consent or Indemnitors representing a majority of the Consideration Percentage of all Indemnitors. If the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnitors, other than the Representative, representing a majority of the Consideration Percentage of all Indemnitors, other than the Representative, will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and the Representative will serve until such successor is duly appointed and qualified to act hereunder. If there is not a Representative at any time, any obligation to provide notice to the Representative will be deemed satisfied if such notice is delivered to each of the Indemnitors at their addresses last known to Purchaser, which will be the address set forth in the Spreadsheet unless Representative provides notice to Purchaser of a different address in the manner described in Section 9.3.
(d) All expenses, if any, incurred by the Representative in connection with respect the performance of his duties as the Representative (the “Representative Expenses”) will be borne and paid by the Indemnitors according to their respective Consideration Percentage. Notices or communications to or from the Representative shall constitute notice to or from each of the Indemnitors.
(e) The Representative shall not be liable to any Indemnitor for any act done or omitted hereunder as the Representative while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert shall be conclusive evidence of such good faith. The Indemnitors shall severally and not jointly indemnify the Representative and hold him harmless against any loss, liability, damage, claim, suit, penalty, cost or expense (including fees and expenses of counsel) incurred without gross negligence or bad faith on the part of the Subject Shares owned Representative and arising out of or held in connection with the acceptance or administration of his duties hereunder.
(f) The Representative shall have reasonable access to information about the Company and the reasonable assistance of the Company’s former officers and employees for purposes of performing his duties and exercising his rights hereunder. The Representative shall treat confidentially and not use or disclose the terms of this Agreement, the Company Disclosure Letter or any nonpublic information from or about the Purchaser or the Company to anyone, except that the Representative may disclose the terms or information to the Indemnitors or the Representative’s employees, attorneys, accountants, financial advisors, agents or authorized representatives on a need-to-know basis, as long as the Person agrees to treat such information confidentially. If requested by Purchaser, the Representative shall enter into a separate confidentiality agreement before being provided access to such Stockholder regarding information.
(g) By his signature to this Agreement, the matters referred initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended by this Agreement, and agrees to in Sections 4(a) act as the Representative and 4(b)to discharge the duties and responsibilities of the Representative pursuant to the terms of this Agreement.
Appears in 1 contract
Representative. (a) Each Stockholder Seller and each Founder hereby designates irrevocably constitutes and appoints (▇▇▇▇▇▇ ▇▇▇▇▇▇ as its true and each permitted Transferee of each such Stockholder is hereby deemed to have so designated lawful attorney-in-fact and appointed) Chairman Stockholder agent (the “Representative”), as its attorney-in-fact ) with full power of substitutionsubstitution to do any and all things and execute any and all documents which may be necessary, convenient or appropriate to serve as facilitate the representative consummation of such Stockholder the transactions contemplated hereby and the exercise of all rights and the performance of all obligations hereunder, including: (i) receiving payments under or pursuant to perform all such acts as are required, authorized or contemplated by this Agreement and disbursements thereof to be performed by such Stockholder (including the voting of Seller or the Subject Shares in accordance with Sections 4(a) and 4(b))Founders, and hereby acknowledges that the Representative shall be authorized to take any action so required, authorized or as contemplated by this Agreement. Each such Stockholder further acknowledges that the foregoing appointment ; (ii) receiving and designation shall be deemed to be coupled with an interest forwarding of notices and shall survive the death or incapacity of such Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder communications pursuant to this AgreementAgreement and accepting service of process; (iii) giving or agreeing to, except for notices on behalf of Seller or any of the Founders, any and actions taken all consents, waivers and amendments deemed by the Representative. Oracle , in its reasonable and good faith 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; and (iv) with respect to any indemnification claims and all other matters arising under this Agreement, (A) disputing or refraining from disputing, on behalf of Seller or any of the Founders relative to any amounts to be received by the Seller or any of the Founders under this Agreement or any agreements contemplated hereby, or any claim made by any Buyer Indemnified Party under this Agreement, (B) negotiating and compromising, on behalf of Seller or any of the Founders, any dispute that may arise under, and exercise or refrain from exercising any remedies available under, this Agreement, and (C) executing, on behalf of Seller or any of the Founders, any settlement agreement, release or other document with respect to such dispute or remedy, except in each case with respect to a dispute between any Seller on the one hand and the Representative on the other hand.
(a) Seller and each Founder hereby agrees that: (i) in all matters in which action by the Representative is required or permitted, the Representative is authorized to act on behalf of Seller and will each Founder, notwithstanding any dispute or disagreement among the Seller and each Founder, and any Indemnified Party shall be entitled to rely on any and all action so taken or any notice given by the Representative under this Agreement without any liability to, or obligation to inquire of, any Seller and is each Founder, notwithstanding any knowledge on the part of any Buyer Indemnified Party of any such dispute or disagreement; (ii) all decisions, actions, consents and will instructions by the Representative shall be entitled binding upon all Seller and authorized each Founder, and no Seller nor any Founder shall have the right to give notices only object to, dissent from, protest or otherwise contest any such decision, action, consent or instruction; (iii) notice to the Representative for any notice contemplated by this Agreement Representative, delivered in the manner provided in Section 10.2, shall be deemed to be given notice to any such Stockholder. A successor to each Seller and the Representative may be chosen by a majority in interest of Founders for the Stockholders; provided that notice thereof is given by the new Representative to Oracle.
(b) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints the Representative with full power of substitution, as the proxy pursuant to the provisions of Section 212 of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b) until the termination purposes of this Agreement, to ; (iv) the same extent and with appointment of the same effect as such Stockholder might or could do under applicable law, rules and regulations. The proxy granted pursuant to the immediately preceding sentence Representative is coupled with an interest and shall be irrevocable. irrevocable by Seller and each Founder in any manner or for any reason; and (v) in the event that the person or entity serving as the Representative dies, becomes incapacitated, files for bankruptcy protection or otherwise becomes unable to serve as a representative of the Seller and each Founder, ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall be the Representative.
(b) Each Stockholder Seller and each Founder hereby revokes acknowledges and agrees that no Buyer Indemnified Party shall have any Liability to Seller or Founder with respect to, and the Seller shall indemnify all Indemnified Parties against, and agree to hold the Indemnified Parties harmless from, any and all previous proxies Losses incurred by such Indemnified Parties arising out of any breach of this Section 10.2 by the Representative or powers by Seller and each Founder, or the designation, appointment or actions of attorney granted the Representative pursuant to the provisions hereof, including with respect to any (x) failure by the Representative to deliver funds received by the Representative on behalf of the Subject Shares owned Seller and each Founder or held any other actions taken by such Stockholder regarding the matters referred to Representative, and (y) reliance by the Buyer Indemnified Parties on, and actions taken by the Buyer Indemnified Parties in Sections 4(a) and 4(b).reliance on, the instructions of, notice given by or any other action taken or omitted by the Representative. [Signature page follows]
Appears in 1 contract
Representative. (a) Each Stockholder hereby designates Parent shall be entitled to deal exclusively with and appoints rely upon the Representative on all matters relating to this Agreement, the Escrow Agreement, the Earn Out Agreement and the other Transaction Documents and shall be entitled to rely conclusively (and each permitted Transferee without further evidence of each such Stockholder is hereby deemed any kind whatsoever) on any document executed or purported to have so designated and appointed) Chairman Stockholder be executed by the Representative on behalf of any Former Equityholder (collectively, the “RepresentativeRepresented Parties”), as its attorney-in-fact with full power of substitution, to serve as the representative of such Stockholder to perform all such acts as are required, authorized and on any other action taken or contemplated by this Agreement purported to be performed taken by such Stockholder (including the voting Representative on behalf of any of the Subject Shares 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 Sections 4(aany 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 4(b))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 acknowledges that and thereby as 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 shall be authorized to take any action so required, authorized or contemplated by this Agreement. Each such Stockholder 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 Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder act on their behalf pursuant to this Agreement, except the Escrow Agreement and the other Transaction Documents.
(d) The Representative shall not be entitled to any fee, commission or other compensation for notices the performance of its services hereunder, but shall be entitled to the payment of all its out-of-pocket costs and actions taken by expenses incurred as the Representative. Oracle is and will In connection with the foregoing, $250,000 (the “Expense Funds”) of the Estimated Closing Merger Consideration shall be entitled paid at the Closing to rely on any action so taken or any notice given an account designated by the Representative pursuant to Section 1.5(c)(ii) to be used by the Representative to pay the costs and is expenses incurred by the Representative in its capacity as the Representative. The Parties agree that, for all Tax purposes, the Expense Funds shall be treated as having been received and voluntarily set aside by the Former Equityholders and the Option Holders at the time of 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 the costs and expenses incurred by the Representative in its capacity as the Representative or amounts due hereunder, then the Representative may, at its option: (i) retain such portion of the Merger Consideration Adjustment Escrow Funds (when and to the extent that the Merger Consideration Adjustment Escrow Funds are released to the Representative (on behalf of the Former Equityholders) in accordance with this Agreement and the Escrow Agreement) as determined by the Representative in its sole discretion for purposes of reimbursement of such costs and expenses; (ii) 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 expenses directly from the Former Equityholders. Once the Representative determines, in its sole discretion, that the Representative will be entitled 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 authorized to give notices an Acquired Company on behalf of the Option Holders, in each case based upon such holder’s Ownership Percentage.
(e) For purposes of exercising Representative’s rights or satisfying the Representative’s obligations under this Agreement and the 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 and its representatives with access, at the Representative’s sole expense, upon prior reasonable written request specifying the need therefor, during regular business hours, to (i) the officers and employees of any Acquired Company and (ii) the books of account and records of any Acquired Company, but, in each case, only to the extent relating to the assets, liabilities or business of any Acquired Company prior to the Effective Time, and the Representative and its representatives shall have the right to make copies of such books and records, at the sole cost and expense of the Representative; provided, however, the foregoing right of access shall not be exercisable in such a manner as to 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 public generally, through sources other than the Representative and its representatives or (3) for any notice a disclosure that is required by Law or a securities exchange or in connection with a filing by the Representative under federal or state securities Laws or 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 Agreement to be given to any such Stockholder. A successor Section 1.6(e) on or after the five (5)-year anniversary of the Closing Date if Parent sends to the Representative may be chosen by a majority in interest written notice of the Stockholdersits 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 destroyed until the completion or expiration of all such obligations; provided further that no such notice thereof 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 by the new Representative to Oracle.
(b) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints unless the Representative with full power of substitution, as the proxy pursuant objects to the provisions of Section 212 destruction, in which case the Surviving Company shall deliver such records to the Representative, at the sole cost and expense of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder 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 irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers of attorney granted with respect to any of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b)Representative.
Appears in 1 contract
Representative. (a) Each Stockholder hereby designates From and appoints after the Closing and so long as the Maveron Entities hold more than 337,230 shares (subject to appropriate adjustments for stock dividends, stock splits, combinations, recapitalizations or the like) of Class G Preferred Stock (or Common Stock acquired upon conversion thereof) (treating the Maveron Entities and each permitted Transferee their respective affiliated investment funds as one holder for purposes of this Section 7.4(a)) (a "Qualified Investor"), such Qualified Investor shall be entitled to designate one representative (the "Representative") to observe Board meetings and all committees thereof; provided, however, that no such Investor shall be entitled to designate a Representative pursuant to this Section 7.4 during such time that such Investor is entitled to appoint a representative to observe Board meetings pursuant to any other agreement with the Company. The Company shall, after receiving notice from the Qualified Investor as to the identity of the Investor's Representative and a confidentiality agreement that is reasonably acceptable to the Company and is executed by the Representative, except to the extent necessary to preserve attorney-client privilege, (i) permit the Representative to attend all Board meetings and all committees thereof, (ii) provide the Representative advance notice of each such Stockholder meeting, including such meeting's time and place, at the same time and in the same manner as such notice is hereby deemed provided to the members of the Board (or such committee thereof) and copies of all materials distributed to the members of the Board (or such committee thereof) at the same time as such materials are distributed to the Board (or such committee thereof) and shall permit the Representative to have so designated the same access to information concerning the business and appointedoperations of the Company as the directors (or committee members) Chairman Stockholder have, (iii) permit the “Representative to discuss the affairs, finances and accounts of the Company with, and to make proposals and furnish advice with respect thereto to, the Board, without voting, and (iv) reimburse the Qualified Investor for its Representative”)'s reasonable costs in attending Board meetings. The Board (or any committee thereof) and the Company's management shall give due consideration to the advice given and any proposals made by a Representative. In addition, the Maveron Entities shall have the right to consult with and advise management of the Company on significant business issues, including management's proposed annual operating plans, and management will meet with a representative of the Maveron Entities at the Company's facilities at mutually agreeable times for such consultation and advice, including to review progress in achieving said plans. The Company shall give the Maveron Entities reasonable advance written notice of any significant new initiatives or material changes to existing operating plans and shall afford the Maveron Entities adequate time to meet with management to consult on such initiatives or changes prior to implementation. The Company shall furnish the Maveron Entities with such financial and operating data and other information with respect to the business and the properties of the Company as its the Maveron Entities may request, except to the extent necessary to preserve attorney-in-fact with full power of substitutionclient privilege. The Company shall permit the Maveron Entities to discuss the affairs, to serve as the representative of such Stockholder to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including the voting finances and accounts of the Subject Shares in accordance with Sections 4(a) and 4(b))Company with, and hereby acknowledges that to make proposals and furnish advice with respect thereto to, the Representative shall be authorized to take any action so required, authorized or contemplated by this Agreement. Each such Stockholder further acknowledges that principal officers of the foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the death or incapacity of such Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this AgreementCompany, except for notices to the extent necessary to preserve attorney-client privilege. The Company shall give due consideration to the advice given and actions taken any proposals made by the Representative. Oracle is and will be entitled to 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 Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to the Representative may be chosen by a majority in interest of the Stockholders; provided that notice thereof is given by the new Representative to OracleMaveron Entities.
(b) Notwithstanding The rights set forth in this Section 7.4 are, in part, intended to satisfy any applicable requirement of contractual management rights for purposes of qualifying the generality ownership interests of Section 6(athe Maveron Entities in the Company as venture capital investments for purposes of the Department of Labor's "plan assets" regulations ("Contractual Management Rights"), each Stockholder hereby constitutes and appoints in the Representative with full power of substitutionevent such rights are not satisfactory for such purpose, as the proxy pursuant Company and the Maveron Entities shall reasonably cooperate in good faith to the provisions of Section 212 agree upon mutually satisfactory Contractual Management Rights which satisfy such regulations.
(c) The rights of the Delaware General Corporation Law Maveron Entities set forth in this Section 7.4 shall terminate automatically upon effectiveness of a registration statement filed with the Securities and attorney Exchange Commission for the Company's initial public offering of such Stockholder, and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders equity securities of the Company; provided, by written consent in lieu thereof or otherwise) with respect to however, the Subject Shares owned or held by such Stockholder 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 Stockholder 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 irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers of attorney granted with respect to any of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b).Maveron Entities' rights set forth in
Appears in 1 contract
Sources: Convertible Preferred Stock Purchase Agreement (Capella Education Co)
Representative. (a) Each Stockholder of the Principals and IMS Holdco hereby designates appoints ▇▇▇▇▇▇ as his, her or its exclusive agent and appoints (and each permitted Transferee of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder (the “Representative”), as its attorney-in-fact (the "Representative") (i) to give and receive notices and communications with full power respect to the provisions of substitutionthis Agreement, (ii) to serve 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 necessary or appropriate in the judgment of the Representative to be taken on behalf of the Principals and IMS Holdco under such provisions of this Agreement. Such agency and that of any successor representative is irrevocable and coupled with an 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 of 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 Stockholder successor is duly appointed and qualified to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including the voting of the Subject Shares in accordance with Sections 4(a) act hereunder. The Principals and 4(b)), and IMS Holdco hereby acknowledges agree that the Representative shall be authorized not have any liability to the Company or any of its subsidiaries, if any, for any action he takes or omits to take hereunder (or under any agreement or instrument referred to herein) in his capacity as Representative, unless such action so required, authorized or contemplated by this Agreement. Each such Stockholder further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the death omission constitutes bad faith or incapacity of such Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Agreement, except for notices and actions taken willful misconduct by the Representative. Oracle is and will be entitled Notices or communications to rely on any action so taken or any notice given by from the Representative and is and will be entitled and authorized shall constitute notice to give notices only or from the Principals and/or IMS Holdco in respect of matters relating to this Agreement. Any decision, act, consent or instruction of the Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to the Representative may be chosen by shall constitute a majority in interest decision of all of the Stockholders; provided that notice thereof is given by the new Representative to Oracle.
(b) Notwithstanding the generality of Section 6(a)Principals and IMS Holdco, each Stockholder hereby constitutes and appoints the Representative with full power of substitution, as the proxy pursuant to the provisions of Section 212 of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder 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 irrevocable. Each Stockholder hereby revokes final, binding and conclusive upon each Principal and IMS Holdco, and the Purchaser may rely upon any and all previous proxies decision, act, consent or powers of attorney granted with respect to any instruction of the Subject Shares owned Representative as being the decision, act, consent or held by such Stockholder regarding the matters referred to in Sections 4(a) instruction of IMS Holdco and 4(b)each and every Principal.
Appears in 1 contract
Sources: Membership Unit Purchase Agreement (MDC Partners Inc)
Representative. (a) Each Stockholder hereby designates and appoints (and each permitted Transferee of each such Stockholder is hereby deemed to The Representative shall have so designated and appointed) Chairman Stockholder (the “Representative”), as its attorney-in-fact with full power and authority to represent the Shareholders and their successors with respect to all matters arising under this Escrow Agreement, including, without limitation, the execution and delivery of substitution, any forms or other documents to serve as the representative effect a transfer of such Stockholder to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including the voting part of the Subject Escrow Shares in accordance with Sections 4(a) and 4(b))to the Trustee pursuant to Section 7 hereof, and hereby acknowledges that the Representative shall be authorized to take any action so required, authorized or contemplated by this Agreement. Each such Stockholder 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 Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Agreement, except for notices and all actions taken by the RepresentativeRepresentative hereunder shall be binding upon the Shareholders and their successors as if expressly done by, or confirmed and ratified in writing by, each of them. Oracle is Without limiting the generality of the foregoing, the Representative shall have full power and will authority to interpret all the terms and provisions of this Escrow Agreement and to consent to any amendment hereof on behalf of the Shareholders and such successors. All action to be entitled to rely on any action so taken or any notice given 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 is and will be entitled and authorized to give notices only to the Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to the Representative may be chosen by a majority in interest of the Stockholders; provided that notice thereof is given by the new Representative to OracleEscrow Agent, shall designate.
(b) Notwithstanding The Representative may act upon any instrument or other writing believed by such Representative in good faith to be genuine and to be signed or presented by the generality proper person and shall not be liable in connection with the performance by him or her of Section 6(a), each Stockholder hereby constitutes and appoints the Representative with full power of substitution, as the proxy his or her duties pursuant to the provisions of Section 212 of the Delaware General Corporation Law and attorney of such Stockholderthis Escrow Agreement, except for his or her own willful default or recklessness. The Representative shall be, and hereby authorizes is, indemnified and empowers saved harmless, jointly and severally, by the Shareholders from all losses, costs and expenses that may be incurred by the Representative as a result of such Representative's involvement in any arbitration or litigation arising from performance of his or her duties hereunder, provided that such arbitration or litigation shall not result from any action taken or omitted by the Representative as a result of his or her willful default or recklessness.
(c) The Representative shall not be entitled to representcompensation for his or her services rendered hereunder. However, vote the Representative shall be reimbursed by Shareholders for reasonable counsel fees and otherwise act (by voting at any meeting of other reasonable out-of-pocket expenses incurred in connection with the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b) until the termination provisions of this Escrow Agreement.
(d) The Representative, or any successor to the same extent and with the same effect as such Stockholder might him or could do under applicable lawher hereafter appointed, rules and regulations. The proxy granted pursuant to the immediately preceding sentence is coupled with an interest may resign and shall be irrevocabledischarged of such Representative's duties hereunder upon the appointment of a successor Representative as hereinafter provided. In case of the Representative's resignation, death or inability to act as Representative, upon receipt of notice thereof, a successor or successors shall be named by the remaining Shareholders. Each Stockholder successor Representative shall have all the power, authority, rights and privileges hereby revokes conferred upon the original Representative, and the term "Representative" as used herein shall be deemed to include each such successor Representative.
(e) The Representative shall take all actions, execute all documents and otherwise cooperate fully with any and all previous proxies request by CBT or powers the Trustee to transfer Escrow Shares as required by this Agreement or to otherwise effect the purpose of attorney granted with respect to any of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b)this Escrow Agreement.
Appears in 1 contract
Sources: Escrow Agreement (CBT Group PLC)
Representative. (a) Each Stockholder Seller hereby designates irrevocably constitutes and appoints (Sh▇▇▇▇ ▇▇▇▇▇▇▇ ▇s the Representative, for the purpose of performing and each permitted Transferee of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder (consummating the “Representative”), as its attorney-in-fact with full power of substitution, to serve as the representative of such Stockholder to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including the voting of the Subject Shares in accordance with Sections 4(a) and 4(b)), and hereby acknowledges that the Representative shall be authorized to take any action so required, authorized or transactions contemplated by this Agreement. Each such Stockholder further acknowledges that the foregoing The appointment and designation shall be deemed to be coupled with an interest and shall survive the death or incapacity of such Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Agreement, except for notices and actions taken by the Representative. Oracle is and will be entitled to rely on any action so taken or any notice given by Sh▇▇▇▇ ▇▇▇▇▇▇▇ ▇s the Representative and is and will be entitled and authorized to give notices only to the Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to the Representative may be chosen by a majority in interest of the Stockholders; provided that notice thereof is given by the new Representative to Oracle.
(b) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints the Representative with full power of substitution, as the proxy pursuant to the provisions of Section 212 of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder 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 all authority hereby conferred shall be irrevocableirrevocable and the Representative is hereby authorized and directed to perform and consummate on behalf of Sellers all of the transactions contemplated by this Agreement.
(b) The Representative shall pay all costs and expenses incurred by or on behalf of the Representative, in his capacity as such, including costs and expenses incurred in connection with any pending or threatened dispute or claim with respect to this Agreement, any other Transaction Document or any agreement, document or instrument entered into pursuant to this Agreement, or the transactions contemplated hereby. Each Stockholder hereby revokes The Representative shall be 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 accordance with their Ownership Percentages. In connection with the foregoing, at the Closing, the Representative Expense Fund Amount shall be transferred by or on behalf of the Buyer to the Representative, to be used by the Representative to pay expenses incurred by the Representative in his or 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 the Sellers in amounts proportionate to their respective Ownership Percentages.
(c) Not by way of limiting the authority of the Representative, each and all previous proxies of Sellers, for themselves and their respective heirs, executors, administrators, successors and assigns, hereby authorize the Representative to:
(i) waive any provision of this Agreement which the Representative deems necessary or powers desirable;
(ii) execute and deliver on Sellers’ behalf all documents and instruments which may be executed and 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 attorney granted 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 Subject Shares owned Estimated Cash Purchase Price and the Final Cash Purchase Price pursuant to Section 1.3 (ii) the defense or held 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 such Stockholder regarding or deemed advisable to effectuate the matters referred provisions of this Section 11.17, shall be binding upon each Seller, and no Seller shall have the right to in Sections 4(a) and 4(b)object, dissent, protest or otherwise contest the same.
Appears in 1 contract
Representative. (a) Each Stockholder hereby designates and irrevocably appoints (and each permitted Transferee of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇ (the “Representative”)) with power of designation and assignment as his, as her or its true and lawful attorney-in-fact and agent with full power of substitution, to serve act solely and exclusively on behalf of, and in the name of, such Stockholder with the full power, without the consent of such Stockholder, to exercise as the representative of Representative in its sole discretion deems appropriate, the powers which such Stockholder to perform all such acts as are required, authorized or contemplated by could exercise under the provisions of this Agreement or the Ancillary Agreements and to take all actions necessary or appropriate in the judgment of the Representative in connection with this Agreement and the Ancillary Agreements, which shall include the power and authority to amend, modify, waive or provide consent with respect to any provision of this Agreement or any Ancillary Agreement and to execute, deliver and accept such waivers and consents and any and all notices, documents, certificates or other papers to be performed by such Stockholder (including delivered in connection with this Agreement and the voting Ancillary Agreements and the consummation of the Subject Shares transactions contemplated hereby and thereby as the Representative, in accordance with Sections 4(a) its sole discretion, may deem necessary or desirable. In any Third Party Defense in which more than one Stockholder is an Indemnitor, the Representative shall act on behalf of all Stockholder Indemnitors. The Purchaser and 4(b))the Purchaser Indemnitees, if applicable, will be entitled to rely exclusively upon any notices and hereby acknowledges that other acts of the Representative as being legally binding acts of each Stockholder individually and the Stockholders collectively. The appointment and power of attorney granted by each Stockholder to the Representative shall be authorized to take any action so required, authorized or contemplated by this Agreement. Each such Stockholder further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest and all authority conferred hereby shall survive the be irrevocable whether by death or incapacity of such Stockholder. Each any such Stockholder hereby authorizes (and each such Permitted Transferee or the occurrence of such Stockholder shall be deemed to have authorized) the any other parties hereto to disregard any notices event or other action taken by such Stockholder pursuant to this Agreement, except for notices and actions taken by the Representative. Oracle is and will be entitled to 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 Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to the Representative may be chosen by a majority in interest of the Stockholders; provided that notice thereof is given by the new Representative to Oracleevents.
(b) Notwithstanding the generality of Section 6(a), each Each Stockholder hereby constitutes acknowledges and appoints agrees that the Representative with full power of substitution, will not be liable to the Stockholders for any act done or omitted hereunder as the proxy Representative while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to the provisions advice of Section 212 counsel will be conclusive evidence of such good faith. The Stockholders 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 Delaware General Corporation Law Representative and attorney arising out of such Stockholder, or in connection with the acceptance or administration of its duties under this Agreement and hereby authorizes and empowers the Escrow Agreement.
(c) The Stockholders will reimburse the Representative to representfor their Pro Rata Share of any out-of-pocket, vote independent, third-party fees and otherwise act expenses (including fees and expenses of counsel, accountants and other advisors) incurred by voting at any meeting the Representative that arise out of or are in connection with the acceptance or administration of the Stockholders of Representative’s duties under this Agreement and the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b) until the termination of this Escrow Agreement, to the same extent and with the same effect as such Stockholder 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 irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers of attorney granted with respect to any of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b).
Appears in 1 contract
Sources: Stock Purchase Agreement (InfuSystem Holdings, Inc)
Representative. (a) Each Stockholder hereby designates Mich▇▇▇ ▇. ▇▇▇▇ ▇▇▇ll, by virtue of the Merger and appoints (and each permitted Transferee of each such Stockholder is hereby deemed the resolutions to have so designated and appointed) Chairman Stockholder (be adopted by the “Representative”)Shareholders, as its be irrevocably appointed attorney-in-fact and authorized and empowered to act, for and on behalf of any or all of the Shareholders (with full power of substitutionsubstitution in the premises) in connection with the indemnity provisions of Article 11 as they relate to the Shareholders generally, the Escrow Agreement, the notice provision of this Agreement, and such other matters as are reasonably necessary for the consummation of the Transactions including, without limitation, to serve act as the representative of such Stockholder Shareholders to perform 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 acts further actions as are required, authorized or contemplated by 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 performed by such Stockholder (including the voting of the Subject Shares in accordance with Sections 4(a) and 4(b)), and hereby acknowledges that the Representative shall be authorized to take any action so required, authorized or contemplated by this Agreement. Each such Stockholder 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 Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Agreement, except for notices and actions 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. Oracle is Compuware and will the Surviving Corporations and each of their respective affiliates shall be entitled to rely on any action so taken or any notice given by such appointment and treat such Representative as the Representative and is and will be entitled and authorized to give notices only to the Representative for any notice contemplated by this Agreement to be given to any such Stockholderduly appointed attorney-in-fact of each Shareholder. A successor to the Representative may be chosen by a majority Each Shareholder who votes in interest favor of the Stockholders; provided that notice thereof is given by the new Representative to Oracle.
(b) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints the Representative with full power of substitution, as the proxy Merger pursuant to the provisions of Section 212 of the Delaware General Corporation Law and attorney of terms hereof, by such Stockholdervote, without any further action, and hereby authorizes and empowers each Shareholder who receives any shares of Compuware Stock in connection with the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the CompanyMerger, by written consent in lieu acceptance thereof or otherwise) with respect to the Subject Shares owned or held by and without any further action, confirms such Stockholder regarding the matters referred to in Sections 4(a) appointment and 4(b) until the termination of this Agreement, to the same extent authority and with the same effect as acknowledges and agrees that such Stockholder might or could do under applicable law, rules appointment is irrevocable and regulations. The proxy granted pursuant to the immediately preceding sentence is coupled with an interest and shall be irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers interest, it being understood that the willingness of attorney granted with respect Compuware to any enter into this Agreement is based, in part, on the appointment of a representative to act on behalf of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b)Shareholders.
Appears in 1 contract
Representative. (a) Each Stockholder hereby designates and appoints (and each permitted Transferee of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder (The Shareholders shall act through the “Representative”), as its attorney-in-fact with full power of substitution, to serve as the representative of such Stockholder to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including the voting of the Subject Shares in accordance with Sections 4(a) and 4(b)), and hereby acknowledges that the Representative shall be authorized to take any action so required, authorized or contemplated by this Agreement. Each such Stockholder further acknowledges that the foregoing appointment and designation who shall be deemed to be coupled with an interest and shall survive the death or incapacity of such Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Agreement, except for notices and actions taken by the Representative. Oracle is and will be entitled to 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 Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to the Representative may be chosen by a majority in interest act on behalf of all of the Stockholders; provided that notice thereof is given by Shareholders in the new Representative to Oraclemanner set forth in this Section 22. The Shareholders have selected Robe▇▇ ▇. ▇▇▇▇▇▇ ▇▇ their initial Representative.
(b) Notwithstanding A Representative may resign at any time effective upon giving written notice to each of the generality parties hereto. The Shareholders may at any time remove a Representative by giving ten days' written notice to him. If a Representative shall resign or be removed, the Shareholders may by written election appoint any number of Section 6(a), each Stockholder hereby constitutes successor Representatives and appoints shall so appoint a successor if the Representative with full power of substitution, as in question was the proxy pursuant to the provisions of Section 212 only Representative in office. The Representative shall promptly notify Parent in writing of the Delaware General Corporation Law resignation or removal of any Representative and attorney of such Stockholderthe appointment of any successor Representative.
(c) With respect to matters involving the Shareholders, Parent and hereby authorizes Escrow Agent shall rely conclusively upon any written instruction of a Representative. Parent and empowers Escrow Agent shall rely conclusively on the authority of a Representative designated herein or by the Shareholders until Parent and Escrow Agent receive a written instruction naming another person as Representative to represent, vote and otherwise act (by voting at any meeting succeed to that position in the place of the Stockholders existing Representative, which instruction shall be signed by the Shareholders.
(d) The Representative may take any action on behalf of the Company, by written consent in lieu thereof or otherwise) with respect Shareholders which it deems appropriate to the Subject Shares owned or held by such Stockholder 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 Stockholder 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 irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers of attorney granted take with respect to any claim for Damages ("Claim") received by it pursuant to Section 10 of the Subject Shares owned Merger Agreement.
(e) The Representative may on behalf of the Shareholders, at any time and without regard to whether or held by such Stockholder regarding not proceedings for the matters referred to in Sections 4(a) and 4(b).resolution or determination thereof have commenced, agree
Appears in 1 contract
Sources: Escrow Agreement (Packaged Ice Inc)
Representative. (a) Each Stockholder hereby designates By the adoption of this Agreement, and appoints (and by receiving the benefits thereof, including any consideration payable hereunder, each permitted Transferee of each such Stockholder is hereby Equityholder shall be deemed to have so designated and appointed) Chairman Stockholder (approved the “Representative”), as its of the Closing, as the representative, agent, proxy, and attorney-in-fact for all the Equityholders for all purposes in connection with this Agreement and the Transaction Documents including the full power of substitutionand authority on the Equityholders behalf: to consummate the Contemplated Transactions, to serve as the representative of such Stockholder to perform all such acts as are requirednegotiate and settle disputes arising under, authorized or contemplated by relating to, this Agreement and the Transaction Documents, to authorize to be performed disbursed to the Equityholders or the Company (on behalf of the Optionholders) any funds payable to the Equityholders under this Agreement or otherwise, to hold the Representative Holdback Amount, and to utilize the Representative Holdback Amount to satisfy any and all obligations or liabilities incurred by such Stockholder the Equityholders or the Representative in the performance of their duties hereunder, to direct the distribution of funds, designate or engage a paying agent to distribute funds (including the voting Merger Consideration and the Representative Holdback Amount), authorize or direct payments of funds from the Representative Holdback Amount, to execute and deliver any amendment or waiver to this Agreement and the Transaction Documents (without the prior approval of the Subject Shares in accordance with Sections 4(aEquityholders) and 4(b)(vii) to take all other actions to be taken by or on behalf of the Equityholders in connection with this Agreement and the Transaction Documents. The Equityholders, by approving this Agreement (whether by vote, by execution of a Letter of Transmittal, Option Surrender Agreement, Warrant Surrender Agreement or otherwise), further agree that such agency and hereby acknowledges that proxy are coupled with an interest, are therefore irrevocable without the consent of the Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of any Equityholder. All decisions and actions by the Representative shall be authorized binding upon all of the Equityholders and no Equityholder shall have the right to take object, dissent, protest or otherwise contest the same. The Representative shall not have the authority to increase the liability of any action so requiredEquityholder on a non pro rata basis. The Representative shall have no duties or obligations to the Equityholders hereunder, authorized or contemplated by this Agreement. Each such Stockholder 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 Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to except as expressly set forth in this Agreement, except for notices and actions taken by no implied covenants, agreements, functions, duties, responsibilities, obligations or liabilities shall be read into this Agreement, or shall otherwise exist against the Representative. Oracle is and will be entitled to 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 Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to the Representative may be chosen by a majority in interest of the Stockholders; provided that notice thereof is given by the new Representative to Oracle.
(b) Notwithstanding The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the generality of Section 6(a), each Stockholder hereby constitutes and appoints the extent resulting from its gross negligence or willful misconduct. The Representative with full power of substitution, as the proxy shall not be liable for any action or omission pursuant to the provisions advice of Section 212 counsel, except to the extent resulting from its gross negligence or willful misconduct. Each Equityholder severally, for itself only and not jointly, in accordance with their Pro Rata Shares shall indemnify the Representative against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (the “Charges”) arising out of or in connection with this Agreement and any Transaction Documents, in each case as such Charges are suffered or incurred; provided, that in the event that any such Charges are finally adjudicated to have been caused by the gross negligence or willful misconduct of the Delaware General Corporation Law and attorney Representative, the Representative will reimburse the Equityholders the amount of such Stockholder, and hereby authorizes and empowers indemnified Charges to the extent attributable to such gross negligence or willful misconduct. Charges may be recovered by the Representative from (i) the funds in the Representative Holdback Amount and (ii) any other funds that become payable to representthe Equityholders under this Agreement at such time as such amounts would otherwise be distributable to the Equityholders provided, vote and otherwise act (by voting at any meeting that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Equityholders from their obligation to promptly pay such Charges as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Stockholders Equityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties, including Section 13.17, otherwise applicable to, the Equityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Company, by written consent in lieu thereof Representative or otherwise) with respect to the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b) until the termination of this Agreement.
(c) The Representative Holdback Amount will be used for any expenses incurred by the Representative. The Equityholders will not receive any interest or earnings on the Representative Holdback Amount 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 event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Representative Holdback Amount to the Paying Agent for further distribution to the Equityholders as follows: (x) the portion of such balance of the Representative Holdback Amount equal to the aggregate Shareholders’, Non-Employee Optionholders’ and Warrantholders’ Pro Rata Share of such balance of the Representative Holdback Amount, to the same extent and account designated by the Paying Agent in accordance with the same effect as Paying Agent Agreement, for further payment to each such Stockholder might or could do under applicable law, rules and regulations. The proxy granted Equityholder of such Equityholder’s Pro Rata Share of such balance of the Representative Holdback Amount pursuant to the immediately preceding sentence Paying Agent Agreement, and (y) the portion of such balance of the Representative Holdback Amount equal to the aggregate Employee Optionholders’ Pro Rata Share of such balance of the Representative Holdback Amount, to the account designated by the Surviving Corporation, for further payment to each such Optionholder of such Employee Optionholder’s Pro Rata Share of such balance of the Representative Holdback Amount in accordance with normal payroll practices. For tax purposes, the Representative Holdback Amount will be treated as having been received and voluntarily set aside by the Equityholders at the time of Closing.
(d) Following the Closing Date, a majority-in-interest of the Equityholders may, by written consent, appoint a new representative as the Representative. Notice, together with a copy of the written consent appointing such new representative and bearing the signatures of a majority-in-interest of the Equityholders, must be delivered to Parent 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 coupled with an received by Parent.
(e) In the event that the Representative becomes unable or unwilling to continue in its capacity as Representative, or if the Representative resigns as the Representative, a majority-in-interest of the Equityholders may by written consent appoint a new representative as the Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of a majority-in-interest of the Equityholders must be delivered to Parent. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Parent.
(f) The Representative shall have reasonable access to relevant information about the Company and the reasonable assistance of the Company’s and Parent’s employees for purposes of performing its duties and exercising its rights hereunder; provided that the Representative shall treat confidentially and not disclose any nonpublic information from or about the Company to anyone (except on a need to know basis to individuals who agree to treat such information confidentially). Notwithstanding anything herein to the contrary, following the Closing, the Representative shall be irrevocable. Each Stockholder hereby revokes any permitted to disclose information as required by Law or to advisors and all previous proxies or powers representatives of attorney granted the Representative and to the Equityholders, in each case who have a need to know such information, provided that such persons are subject to confidentiality obligations with respect to any of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b)thereto.
Appears in 1 contract
Representative. (a) Each Stockholder hereby designates By virtue of the approval of the Merger and appoints (and each permitted Transferee of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder (the “Representative”), as its attorney-in-fact with full power of substitution, to serve as the representative of such Stockholder to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including written consent or by having executed and delivered the voting Option Holder Election, each of the Subject Shares in accordance with Sections 4(a) and 4(b)), and hereby acknowledges that the Representative shall be authorized to take any action so required, authorized or contemplated by this Agreement. Each such Stockholder 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 Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder Company Holders shall be deemed to have authorized) the other parties hereto agreed to disregard any notices or other action taken by such Stockholder pursuant to this Agreementappoint ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as its agent and attorney-in-fact, except for notices and actions taken by the Representative. Oracle is and will be entitled to 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 as the Representative for and on behalf of the Company Holders to give and receive notices and communications, to authorize payment to any notice contemplated Indemnified Party from the Escrow Fund and directly against the Company Holders in satisfaction of claims by any Indemnified Party, 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, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Holder or by any such Company Holder against any Indemnified Party or any dispute between any Indemnified Party and any such Company Holder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be given changed by the Company Holders from time to any such Stockholder. A successor time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Representative may not be chosen removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Representative may be filled by the holders of a majority in interest of the Stockholders; provided that Escrow Fund. No bond shall be required of the Representative, and the Representative shall not receive any compensation for its services. Notices or communications to or from the Representative shall constitute notice thereof is given by to or from the new Representative to OracleCompany Holders.
(b) Notwithstanding The Representative shall not be liable for any act done or omitted hereunder as Representative while acting in good faith and in the generality exercise of Section 6(areasonable judgment. The Company Holders on whose behalf the Escrow Amount was contributed to the Escrow Fund shall indemnify the Representative and hold the Representative harmless against any loss, liability or expense 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 the Representative’s duties hereunder, including the reasonable fees, costs and expenses of any legal counsel or other advisors retained by the Representative (“Representative Expenses”), each Stockholder hereby constitutes of which up to $20,000 (the “Company Holder Representative Advance” and appoints together with the Company Holder Accounting Expenses, the “Company Holder Advanced Expenses”) shall be advanced by Parent. The Representative with full power Expenses shall be borne by the Company Holders based on their Pro Rata Portion. A decision, act, consent or instruction of substitutionthe Representative, as the proxy including but not limited to an amendment, extension or waiver of this Agreement pursuant to the provisions of Section 212 8.3 and Section 8.4 hereof, shall constitute a decision of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder might or could do under applicable law, rules and regulations. The proxy granted pursuant to the immediately preceding sentence is coupled with an interest Company Holders and shall be irrevocablefinal, binding and conclusive upon the Company Holders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Representative as being the decision, act, consent or instruction of the Company Holders. Each Stockholder The Escrow Agent and Parent are hereby revokes relieved from any and all previous proxies or powers of attorney granted with respect liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b)Representative.
Appears in 1 contract
Sources: Merger Agreement (Nanometrics Inc)
Representative. (a) Each Stockholder of the Seller Agreement Parties hereby designates agrees that J▇▇▇▇ ▇▇▇▇▇▇▇ shall be appointed as the Representative and appoints (and each permitted Transferee of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder (as the “Representative”), as its attorney-in-fact with full power for and on behalf of substitution, to serve as the representative of such Stockholder to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including the voting of the Subject Shares in accordance with Sections 4(a) and 4(b))each Stockholder, and is hereby acknowledges that the Representative shall be authorized to take any action so required, authorized and all actions and make any and all decisions required or contemplated by this Agreement. Each such Stockholder further acknowledges that the foregoing appointment and designation shall be deemed permitted to be coupled 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 an interest respect to the Final Closing Statement (b) agree to, negotiate, enter into settlements and shall survive 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 in the death or incapacity judgment of such Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee the Representative for the accomplishment of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to terms, conditions and limitations of this Agreement, except for notices the Ancillary Agreements and any transactions contemplated herein and therein. Accordingly, the Representative has the authority and power to act on behalf of each Stockholder with respect to this Agreement or any Ancillary Agreement to which any Stockholder is a party. Each Stockholder will be bound by all actions taken by the Representative in connection with this Agreement and Parent shall only be required to acknowledge or act upon a written communication signed by the Representative. Oracle is and will be entitled to 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 Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to the Representative Such agency may be chosen by a majority in interest of the Stockholders; provided that notice thereof is given by the new Representative to Oracle.
(b) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints the Representative with full power of substitution, as the proxy pursuant to the provisions of Section 212 of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) changed with respect to the Subject Shares owned Representative by the majority of the Stockholders 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 held (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 liable to the Stockholders for any act done or omitted hereunder as the Representative while acting in good faith and in the exercise of reasonable judgment, even if such act or omission constitutes negligence on the part of the 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 Stockholder regarding professionals, and any action taken by the matters referred Representative based on such reliance shall be deemed conclusively to have been taken in Sections 4(agood 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 the part of the Representative (so long as the Representative was acting in good faith in connection therewith) and 4(b) until the termination arising out of this Agreement, to the same extent and or in connection with the same effect as such Stockholder might acceptance 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 irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers of attorney granted with respect to any administration of the Subject Shares owned or held Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b)Representative.
Appears in 1 contract
Sources: Merger Agreement (Universal Business Payment Solutions Acquisition Corp)
Representative. (a) Each Stockholder In order to efficiently administer the transactions contemplated hereby, including (i) the determination of the Closing Cash Payment, (ii) the waiver of any condition to the obligations of the Seller to consummate the transactions contemplated hereby designates and appoints (iii) the defense and/or settlement of any claims for which the Seller or the Guarantors may be required to indemnify the Buyer Indemnified Parties pursuant to this Agreement, the Seller and each permitted Transferee of each such Stockholder is the Guarantors and, for any actions taken prior to the Closing Date, the Companies, hereby deemed to have so designated and appointed) Chairman Stockholder (designate the “Representative”), Representative as its representative, attorney-in-fact with full power of substitution, to serve as the representative of and agent and shall execute such Stockholder to documentation and perform all such acts as are required, authorized or contemplated by this Agreement may be necessary to be performed by give effect to such Stockholder (including designation pursuant to the voting Laws of any jurisdiction having application to the Subject Shares in accordance with Sections 4(a) and 4(b)), and hereby acknowledges that the Representative shall be authorized to take any action so required, authorized or transactions contemplated by this Agreement. Each such Stockholder further acknowledges .
(b) The Seller and the Guarantors, and with respect to any actions taken prior to the Closing Date, the Companies, hereby authorize the Representative (i) to make all decisions relating to the determination of the Closing Cash Payment and Closing Consideration pursuant to Section 1.5, (ii) to take all action necessary in connection with the waiver of any condition to the obligations of the Companies, the Seller and the Guarantors to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims for which the Seller or the Guarantors may be required to indemnify the Buyer Indemnified Parties pursuant to this Agreement, (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 Seller or the Guarantor by the terms of this Agreement.
(c) In the event that the foregoing appointment Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Seller and designation the Guarantors shall select another representative to fill the vacancy of the Representative, and such substituted representative shall be deemed to be coupled with an interest the Representative for all purposes of this Agreement and shall survive the death documents delivered pursuant hereto.
(d) A decision, act, consent, instruction or incapacity action of such Stockholder. Each such Stockholder hereby authorizes (the Representative, including any agreement between the Representative and each such Permitted Transferee the Buyers relating to the determination of such Stockholder shall the Closing Cash Consideration or the Closing Consideration or the defense or settlement of any claims for which the Seller or the Guarantors may be deemed required to have authorized) indemnify the other parties hereto to disregard any notices or other action taken by such Stockholder Buyer Indemnified Parties pursuant to this Agreement, except shall constitute a decision, act, consent, instruction or action of the Seller and the Guarantors and shall be binding and conclusive upon the Seller and the Guarantors 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 Buyers and the Escrow Agent are hereby relieved from any liability to the Seller or any Guarantor for notices 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, the Seller and each Guarantor agrees that:
(i) the Buyers shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Closing Consideration Statement and the Closing Cash Consideration or the Closing Consideration, the settlement of any claims for indemnification by the Buyer Indemnified Parties pursuant to this Agreement or any other actions required or permitted to be taken by the Representative. Oracle is Representative hereunder, and will be entitled to rely on no party shall have any cause of action against the Buyer Indemnified Parties for any action so taken by the Buyer Indemnified Parties in reliance upon the instructions or decisions of the Representative;
(ii) none of the Seller or any notice Guarantor shall have any cause of action against the Representative for any action taken, decision made or instruction given by the Representative and is and will be entitled and authorized to give notices only to the Representative under this Agreement, except for any notice contemplated by fraud or willful breach of this Agreement to be given to any such Stockholder. A successor to the Representative may be chosen by a majority in interest of the Stockholders; provided that notice thereof is given by the new Representative to Oracle.Representative;
(biii) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints the Representative with full power of substitution, as the proxy pursuant to the provisions of this Section 212 of the Delaware General Corporation Law 1.8 are independent and attorney of such Stockholderseverable, are irrevocable and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder 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 irrevocable. Each Stockholder hereby revokes enforceable notwithstanding any and all previous proxies rights or powers of attorney granted remedies that the Seller or any Guarantor may have in connection with respect to the transactions contemplated by this Agreement;
(iv) remedies available at Law for any breach of the Subject Shares owned provisions of this Section 1.8 are inadequate; therefore, the Buyers shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if the Buyers bring an action to enforce the provisions of this Section 1.8; and
(v) the provisions of this Section 1.8 shall be binding upon the executors, heirs, legal representatives, personal representatives, successors and permitted assigns of the Seller and each Guarantor, and any references in this Agreement to the Seller or held by any Guarantor shall mean and include the successors to the Seller’s or such Stockholder regarding Guarantor’s rights hereunder, whether pursuant to testamentary disposition, the matters referred to in Sections 4(a) Laws of descent and 4(b)distribution or otherwise.
Appears in 1 contract
Sources: Master Share Purchase Agreement (Endurance International Group Holdings, Inc.)
Representative. (a) Each Stockholder hereby designates and appoints (and By executing this Agreement, each permitted Transferee of each such Stockholder is hereby the TRA Parties shall be deemed to have so designated and appointed) Chairman Stockholder (irrevocably appointed the “Representative”), Representative as its attorney-in-agent and attorney in fact with full power of substitutionsubstitution to act from and after the date hereof and to do any and all things 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 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 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) taking actions the Representative is authorized to take pursuant to the other provisions of this Agreement; (vii) negotiating and compromising, on behalf of such TRA Parties, any dispute that may arise under, and exercising or refraining from exercising any remedies available under, this Agreement and executing, on behalf of such TRA Parties, any settlement agreement, release or other document with respect to such dispute or remedy; and (viii) engaging attorneys, accountants, agents or consultants on behalf of such TRA Parties in connection with this Agreement and paying any fees related thereto on behalf of such TRA Parties, subject to reimbursement by such TRA Parties.
(b) If any Representative is unable, as determined by PubCo in its reasonable discretion, to serve as the representative Representative or resigns as the Representative, a successor Representative shall be appointed by the TRA Parties who held (or whose predecessors held), as of such Stockholder 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 such acts as are requiredof the provisions of this Agreement applicable to the Representative and shall have all of the power, authorized or contemplated authority, rights and privileges conferred by this Agreement to be performed by such Stockholder (including upon the voting of the Subject Shares in accordance with Sections 4(a) and 4(b)), and hereby acknowledges that the Representative shall be authorized to take any action so required, authorized or contemplated by this Agreement. Each such Stockholder 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 Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Agreement, except for notices and actions taken by the original Representative. Oracle is and will be entitled to 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 Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to the Representative may be chosen by a majority in interest of the Stockholders; provided that notice thereof is given by the new Representative to Oracle.
(b) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints the Representative with full power of substitution, as the proxy pursuant to the provisions of Section 212 of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder 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 irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers of attorney granted with respect to any of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b).
Appears in 1 contract
Sources: Tax Receivable Agreement (Dynasty Financial Partners Inc.)
Representative. (a) Each Stockholder hereby designates Mr. ▇▇▇▇ ▇▇▇ll, by virtue of the Merger and appoints (and each permitted Transferee of each such Stockholder is hereby deemed the resolutions to have so designated and appointed) Chairman Stockholder (be adopted by the “Representative”)Shareholders, as its be irrevocably appointed attorney-in-fact and authorized and empowered to act, for and on behalf of any or all of the Shareholders (with full power of substitutionsubstitution in the premises) in connection with the indemnity provisions of Article 11 as they relate to the Shareholders generally, the Escrow Agreement, the notice provision of this Agreement, and such other matters as are reasonably necessary for the consummation of the Transactions including, without limitation, to serve act as the representative of such Stockholder Shareholders to perform 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 acts further actions as are required, authorized or contemplated by 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 performed by such Stockholder (including the voting of the Subject Shares in accordance with Sections 4(a) and 4(b)), and hereby acknowledges that the Representative shall be authorized to take any action so required, authorized or contemplated by this Agreement. Each such Stockholder 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 Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Agreement, except for notices and actions 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. Oracle is Jabil and will the Surviving Corporation and each of their respective affiliates shall be entitled to rely on any action so taken or any notice given by such appointment and treat such Representative as the Representative and is and will be entitled and authorized to give notices only to the Representative for any notice contemplated by this Agreement to be given to any such Stockholderduly appointed attorney-in-fact of each Shareholder. A successor to the Representative may be chosen by a majority Each Shareholder who votes in interest favor of the Stockholders; provided that notice thereof is given by the new Representative to Oracle.
(b) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints the Representative with full power of substitution, as the proxy Merger pursuant to the provisions of Section 212 of the Delaware General Corporation Law and attorney of terms hereof, by such Stockholdervote, without any further action, and hereby authorizes and empowers each Shareholder who receives any Jabil Shares in connection with the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the CompanyMerger, by written consent in lieu acceptance thereof or otherwise) with respect to the Subject Shares owned or held by and without any further action, confirms such Stockholder regarding the matters referred to in Sections 4(a) appointment and 4(b) until the termination of this Agreement, to the same extent authority and with the same effect as acknowledges and agrees that such Stockholder might or could do under applicable law, rules appointment is irrevocable and regulations. The proxy granted pursuant to the immediately preceding sentence is coupled with an interest and shall be irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers interest, it being understood that the willingness of attorney granted with respect Jabil to any enter into this Agreement is based, in part, on the appointment of a representative to act on behalf of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b)Shareholders.
Appears in 1 contract
Sources: Merger Agreement (Jabil Circuit Inc)
Representative. (a) Each Stockholder THL Entity hereby designates and appoints (and each permitted Permitted Transferee of each such Stockholder THL Entities is hereby deemed to have so designated and appointed) Chairman Stockholder (the “Representative”)each of Anth▇▇▇ ▇. ▇▇▇▇▇▇, as its ▇▇ot▇ ▇▇▇▇▇▇▇▇ ▇▇▇ 71 76 Kent ▇▇▇▇▇▇, ▇▇ his attorney-in-fact with full power of substitutionsubstitution for each of them (the "THL Entities' Representative"), to serve as the representative of each such Stockholder person to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including the voting of the Subject Shares in accordance with Sections 4(a) and 4(b)), person and hereby acknowledges that the THL Entities' Representative shall be the only person authorized to take any action so required, authorized or contemplated by this AgreementAgreement by each such person. Each such Stockholder 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 Stockholderperson. Each such Stockholder person hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices notice or other action taken by such Stockholder person pursuant to this Agreement, Agreement except for notices and actions taken by the THL Entities' Representative. Oracle is 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 is 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 Stockholderperson. A successor to the THL Entities' Representative may be chosen by a majority in interest of the Stockholders; THL Entities' Shareholders, provided that notice thereof is given by the new THL Entities' Representative to Oraclethe Company and to each Non-THL Shareholder.
(b) Notwithstanding the generality of Section 6(a), each Stockholder Each DLJ Entity hereby constitutes designates and appoints the Representative (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 substitutionsubstitution 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 DLJ 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 his attorney-in-fact with full power of substitution for each of them (the proxy pursuant "Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities Representative"), to serve as the provisions representative of Section 212 of the Delaware General Corporation Law and attorney of each such Stockholderperson to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such person and hereby authorizes acknowledges that the Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities 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 empowers the Representative designation shall be deemed to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder might or could do under applicable law, rules and regulations. The proxy granted pursuant to the immediately preceding sentence is be coupled with an interest and shall be irrevocablesurvive the death or incapacity of such person. Each Stockholder such person hereby revokes 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 all previous proxies will be entitled to rely on any action so taken or powers of attorney granted with respect 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 Subject Shares owned 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 with full power of substitution for each of them (the "Management Representative"), to serve as the representative of each such person to perform all such acts as are required, authorized or held contemplated by this Agreement to be performed by such Stockholder regarding person and hereby acknowledges that the matters referred Management Representative shall be the only person authorized to in Sections 4(atake any 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 death or incapacity of such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) and 4(b).the other parties hereby to disregard any notice or other action taken by such person pursuant to this Agreement except for the
Appears in 1 contract
Sources: Investors' Agreement (Fisher Scientific International Inc)
Representative. (a) Each Stockholder hereby designates and appoints (and each permitted Transferee of each such Stockholder The Sellers will act through the Representative, who is hereby deemed to have so designated and appointed) Chairman Stockholder (the “Representative”), as its attorney-in-fact with full power of substitution, to serve as the representative of such Stockholder to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including the voting of the Subject Shares in accordance with Sections 4(a) and 4(b)), and hereby acknowledges that the Representative shall be authorized to take any action so required, authorized or contemplated by act on behalf of Sellers in the manner set forth in this AgreementSection 23. Each such Stockholder further acknowledges that Sellers have selected Lars ▇▇▇▇▇▇ ▇▇ the foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the death or incapacity of such Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Agreement, except for notices and actions taken by the initial Representative. Oracle is and will be entitled to 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 Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to the Representative may be chosen by a majority in interest of the Stockholders; provided that notice thereof is given by the new Representative to Oracle.
(b) Notwithstanding A Representative may resign at any time effective upon giving written notice to each of the generality parties hereto. The Sellers may at any time remove a Representative by giving thirty (30) days' written notice to him. If a Representative shall resign or be removed, the Sellers may by written election appoint any number of Section 6(a), each Stockholder hereby constitutes successor Representatives and appoints will so appoint a successor if the Representative with full power of substitution, as in question was the proxy pursuant to the provisions of Section 212 only Representative in office. The Representative will promptly notify Purchaser in writing of the Delaware General Corporation Law resignation or removal of any Representative and attorney of such Stockholderthe appointment of any successor Representative.
(c) With respect to matters involving the Sellers, Purchaser and hereby authorizes Escrow Agent must rely conclusively upon any written instruction of a Representative. Purchaser and empowers Escrow Agent must rely conclusively on the authority of a Representative designated herein or by the Sellers until Purchaser and Escrow Agent receive a written instruction naming another person as Representative to represent, vote and otherwise act (by voting at any meeting succeed to that position in the place of the Stockholders existing Representative, which instruction must be signed by the Sellers.
(d) The Representative may take any action on behalf of the Company, by written consent in lieu thereof or otherwise) with respect Sellers which it deems appropriate to the Subject Shares owned or held by such Stockholder 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 Stockholder 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 irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers of attorney granted take with respect to any Claim for Losses received by it pursuant to Article 11 of the Subject Shares owned Purchase Agreement.
(e) The Representative may on behalf of the Sellers, at any time and without regard to whether or held not proceedings for the resolution or determination thereof have commenced, agree upon, resolve, settle or compromise any Claim under Article 11 of the Purchase Agreement in the sole and absolute discretion of the Representative.
(f) The Representative may on behalf of the Sellers, in its sole and absolute discretion, pursue, elect not to pursue, or terminate the pursuit of any Claim or issue under Article 11 of the Purchase Agreement, including the conduct of arbitration or litigation of third-party claims, as provided herein and in the Agreement.
(g) Under no circumstances will the Representative be liable to Sellers for any act it may take in its capacity as Representative, or for the failure to take any action, or for the actions of Sellers, or for any damage, loss of expense suffered or incurred resulting from the exercise of the Representative's sole and absolute discretion in acting hereunder, except only for acts of gross negligence, bad faith or willful misconduct.
(h) The Representative shall be and hereby is authorized to retain counsel, accountants, or other professional assistants to assist in determining the validity of claims or in otherwise acting hereunder as a Representative. Any such expenses will be borne by the Sellers and may be taken from the proceeds of the Escrow Fund to be delivered to such Stockholder regarding Sellers.
(i) The Representative will not be liable for any expense incurred on behalf of the matters referred Sellers or any of them in protesting, analyzing, resisting, arbitrating, litigating, negotiating with respect to, or defending any claim made in connection with this Agreement, or for any amounts otherwise expended in acting hereunder.
(j) On demand by the Representative, Sellers will contribute all sums demanded to pay the fees and expenses incurred by the Representative on behalf of the Sellers in Sections 4(aacting hereunder.
(k) and 4(b)The Representative will keep the Sellers reasonably informed of actions taken by it in acting hereunder.
Appears in 1 contract
Sources: Stock Purchase Agreement (South Texas Drilling & Exploration Inc)
Representative. (a) Each Stockholder hereby designates and appoints (and each permitted Transferee Without any further act of each such Stockholder any Seller, ▇▇▇▇▇▇ is hereby deemed to have so designated irrevocably appointed as the agent and appointed) Chairman Stockholder (the “Representative”), as its attorney-in-fact for each of the Sellers to act as the initial Representative under this Agreement and the other agreements contemplated hereby in accordance with the terms of this Section 12.12. The Representative may resign upon written notice to all Sellers. The Representative may be changed or replaced by vote of a majority of Sellers (computed on the basis of their respective Pro Rata Portions) upon written notice to the Representative. The Representative will immediately inform Buyer in the event of the Representative’s removal or resignation. In the event of the resignation or removal of the Representative, a successor Representative reasonably satisfactory to Buyer shall thereafter be appointed by an instrument in writing signed by Buyer and such successor Representative.
(b) The Representative is hereby authorized and empowered to act for, and on behalf of, any and all of the Sellers (with full power of substitutionsubstitution in the premises) in connection with such matters as are reasonably related to the transactions contemplated in this Agreement and the other agreements contemplated hereby including: (i) to receive all payments owing to the Sellers under this Agreement, (ii) to serve terminate, amend, waive any provision of, or abandon, this Agreement or the other agreements contemplated hereby, (iii) to act as the representative of the Sellers to review and authorize all claims and disputes or question the accuracy thereof, (iv) to negotiate and compromise on their behalf with Buyer any claims asserted hereunder and to authorize payments to be made with respect thereto, (v) to take such Stockholder to further actions as are authorized in this Agreement and the other agreements contemplated hereby, and (vi) in general, do all things and perform all such acts as are requiredacts, authorized or contemplated by this Agreement to be performed by such Stockholder including executing and delivering all agreements (including the voting Escrow Agreement and the other agreements contemplated in this Agreement), certificates, receipts, consents, elections, instructions and other documents contemplated by, or deemed by the Representative to be necessary or desirable in connection with, this Agreement, the other agreements contemplated hereby and the transactions contemplated herein or therein. Buyer shall be entitled to rely on such appointment and to treat the Representative as the duly appointed attorney-in-fact of each Seller. Notices given to the Subject Shares Representative in accordance with Sections 4(a) and 4(b)), and hereby acknowledges that the Representative provisions of this Agreement shall be authorized constitute notice to take any action so required, authorized or contemplated by the Sellers for all purposes under this Agreement. Each such Stockholder further acknowledges that In all matters relating to this Section, the foregoing Representative will be the only party entitled to assert the rights of Sellers. The Representative will have no power or authority to bind Buyer, and Buyer will not have any liability to any person for any act or omission by the Representative.
(c) The appointment and designation shall be deemed to be of the Representative is an agency coupled with an interest and shall survive the death or incapacity of such Stockholder. Each such Stockholder hereby authorizes (is irrevocable and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder the Representative pursuant to the authority granted in this AgreementSection 12.12 shall be effective and absolutely binding on each Seller notwithstanding any contrary action of or direction from such Seller. The death or incapacity, except for notices or dissolution or other termination of existence, of any Seller shall not terminate the authority and actions taken by agency of the Representative. Oracle is Buyer and will be entitled any other party to 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 Representative for any notice document contemplated by this Agreement to be given to any such Stockholder. A successor to in dealing with the Representative may be chosen by a majority in interest conclusively and absolutely rely, without inquiry, upon any act, statement, action, representation, or decision of the Stockholders; provided that notice thereof is given by Representative as being the new binding acts of all Sellers or any of them, notwithstanding any communication from any Seller to the contrary (other than communication regarding the resignation or removal of the Representative pursuant to Oraclethis Section).
(bd) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints the The Representative with full power of substitution, as the proxy pursuant shall not be liable to the provisions of Section 212 of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the Representative to represent, vote and otherwise act any Seller or any other Person (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwiseother than Buyer) with respect to any action taken or omitted to be taken by the Subject Shares owned Representative in its role as Representative under or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b) until the termination of connection with this Agreement, unless such action or omission results from or arises out of willful misconduct or gross negligence on the part of the Representative, and the Representative shall not be liable to any Seller in the same extent event that, in the exercise of its reasonable judgment, the Representative believes there will not be adequate resources available to cover potential costs and with the same effect as such Stockholder might or could do under applicable law, rules and regulationsexpenses to contest a claim made by Buyer. The proxy granted pursuant to the immediately preceding sentence is coupled with an interest and Sellers shall be irrevocable. Each Stockholder hereby revokes responsible to Buyer for any breach by the Representative of its obligations hereunder.
(e) The Representative shall be indemnified from the Sellers for any and all previous proxies expenses, charges and liabilities, including reasonable attorneys’ fees, incurred by the Representative in the performance or powers discharge of attorney granted with respect its duties pursuant to any this Section 12.12 (the “Representative Expenses”). In addition, the Representative shall be entitled to reimbursement from the Representative Expense Amount for the Representative Expenses.
(f) As soon as practical following the later of (i) the date that is twenty-four (24) months after the Closing Date and (ii) the final resolution of all indemnification claims made under this Agreement that are outstanding as of the Subject Shares owned date that is twenty-four (24) months after the Closing Date, the Representative shall pay or held cause to be paid the unused portion of the Representative Expense Amount (if any) to the Sellers by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b)wire transfer of immediately available funds.
Appears in 1 contract
Representative. (a) Each Stockholder of the Principals and WWG hereby designates appoints ▇▇▇▇▇▇▇ as his or its exclusive agent and appoints (and each permitted Transferee of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder (the “Representative”), as its attorney-in-fact (the "Representative") (i) to give and receive notices and communications with full power respect to the provisions of substitutionthis Agreement, (ii) to serve 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 necessary or appropriate in the judgment of the Representative to be taken on behalf of the Principals and WWG under such provisions of this Agreement. Such agency and that of any successor representative is irrevocable and coupled with an 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 of 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 Stockholder successor is duly appointed and qualified to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including the voting of the Subject Shares in accordance with Sections 4(a) act hereunder. The Principals and 4(b)), and WWG hereby acknowledges agree that the Representative shall be authorized not have any liability to the Company or any Subsidiary for any action he takes or omits to take hereunder (or under any agreement or instrument referred to herein) in his capacity as Representative, unless such action so required, authorized or contemplated by this Agreement. Each such Stockholder further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the death omission constitutes bad faith or incapacity of such Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Agreement, except for notices and actions taken willful misconduct by the Representative. Oracle is and will be entitled Notices or communications to rely on any action so taken or any notice given by from the Representative and is and will be entitled and authorized shall constitute notice to give notices only or from the Principals and/or WWG in respect of matters relating to this Agreement. Any decision, act, consent or instruction of the Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to the Representative may be chosen by shall constitute a majority in interest decision of all of the Stockholders; provided that notice thereof is given by the new Representative to Oracle.
(b) Notwithstanding the generality of Section 6(a)Principals and WWG, each Stockholder hereby constitutes and appoints the Representative with full power of substitution, as the proxy pursuant to the provisions of Section 212 of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder 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 irrevocable. Each Stockholder hereby revokes final, binding and conclusive upon each Principal and WWG, and the Purchaser may rely upon any and all previous proxies decision, act, consent or powers of attorney granted with respect to any instruction of the Subject Shares owned Representative as being the decision, act, consent or held by such Stockholder regarding the matters referred to in Sections 4(a) instruction of WWG and 4(b)each and every Principal.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (MDC Partners Inc)
Representative. (a) Each Stockholder of the Seller Agreement Parties hereby designates agrees that C. N▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall be appointed as the Representative and appoints (and each permitted Transferee of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder (as the “Representative”), as its attorney-in-fact with full power for and on behalf of substitutioneach Stockholder, and the taking by the Representative of any and all actions and the making of any decisions required or permitted to serve as be taken by the representative of such Stockholder to perform all such acts as are required, authorized or contemplated by Representative under this Agreement or any Ancillary Agreement to be performed by such which any Stockholder (is a party, including the voting exercise of the Subject Shares in accordance power to (a) resolve any Disputed Items with Sections 4(arespect to the Final Closing Statement (b) agree to, negotiate, enter into settlements and 4(b))compromises of and comply with orders of courts with respect to any indemnification claims, (c) resolve any indemnification claims, and hereby acknowledges that (d) take all actions necessary in the judgment of the Representative shall be authorized to take any action so required, authorized or contemplated by this Agreement. Each such Stockholder further acknowledges that for the foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the death or incapacity accomplishment of such Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to terms, 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 his estate representative.) Accordingly, and except for notices as set forth in the immediately preceding sentence, the Representative has the authority and power to act on behalf of each Stockholder with respect to this Agreement or any Ancillary Agreement to which any Stockholder is a party. Each Stockholder will be bound by all actions taken by the Representative in connection with this Agreement and Parent shall only be required to acknowledge or act upon a written communication signed by the Representative. Oracle is and will be entitled to 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 Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to the Representative Such agency may be chosen by a majority in interest of the Stockholders; provided that notice thereof is given by the new Representative to Oracle.
(b) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints the Representative with full power of substitution, as the proxy pursuant to the provisions of Section 212 of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) changed with respect to the Subject Shares owned Representative by the majority of the Stockholders 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 held (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 liable to the Stockholders for any act done or omitted hereunder as the Representative while acting in good faith and in the exercise of reasonable judgment, even if such act or omission constitutes negligence on the part of the 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 Stockholder regarding professionals, and any action taken by the matters referred Representative based on such reliance shall be deemed conclusively to have been taken in Sections 4(agood 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 behalf of the Stockholders), and 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 4(b) until the termination arising out of this Agreement, to the same extent and or in connection with the same effect as such Stockholder might acceptance 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 irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers of attorney granted with respect to any administration of the Subject Shares owned or held Representative's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b)Representative.
Appears in 1 contract
Sources: Merger Agreement (Universal Business Payment Solutions Acquisition Corp)
Representative. (ai) Each Stockholder Seller hereby designates and irrevocably appoints (and each permitted Transferee of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder (the “Representative”), as its attorney-in-fact with full power of substitution, Representative to serve as the representative of such Stockholder the Sellers with respect to perform all such acts as are required, authorized or contemplated by 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 Stockholder Seller for all purposes of this Agreement, including full power and authority on such Seller’s behalf to (including a) consummate the voting Transactions, (b) pay expenses (whenever incurred) in connection with the 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 Subject Shares Representative 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, 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 it 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 Sections 4(a) the opinion of such counsel. The Representative may in good faith rely conclusively on information, reports, statements and 4(b))opinions prepared or presented by counsel or other professionals retained by it, and hereby acknowledges that the Representative shall be authorized to take any action so required, authorized or contemplated by this Agreement. Each such Stockholder 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 Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by the Representative based on such Stockholder pursuant reliance will be deemed conclusively to have been taken in good faith. The Representative will have full power and authority to interpret all the terms and provisions of this Agreement or any other agreement in connection herewith and to consent to any amendment hereof or thereof for, in the name and on behalf of all such Sellers and such successors.
(iii) Any expenses or liabilities incurred by the Representative in connection with the 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 severally. No provision of this Agreement or any other agreement in connection herewith will require the Representative to expend or risk its own funds or otherwise incur any financial Liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement or any other agreement in connection herewith on behalf of any Seller.
(iv) The Sellers, jointly and severally, will indemnify, defend and hold harmless the Representative and its successors and assigns from and against any and all Losses arising out of or in connection with the Representative’s execution and performance (solely in its capacity as the Representative) of this Agreement, in each case as such Losses are incurred or suffered, except for notices and actions taken actual fraud by the Representative. Oracle is and Subject to the foregoing, in no event will be entitled to rely on any action so taken or any notice given by the Representative and is and will be entitled and authorized liable to give notices only to the Representative any Seller (or its successors) for any notice contemplated by this Agreement to be given to any such Stockholderindirect, punitive, special or consequential damages. A successor to the Representative may be chosen by a majority in interest of the Stockholders; provided that notice thereof is given by the new Representative to Oracle.
(b) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints the Representative with full power of substitution, as the proxy pursuant to the provisions of Section 212 of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b) until This indemnification will survive the termination of this Agreement, to the same extent and with the same effect as such Stockholder 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 irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers of attorney granted with respect to any of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b).
Appears in 1 contract
Sources: Asset Purchase Agreement
Representative. (a) Each Stockholder By entering into this Agreement, each Seller hereby designates irrevocably authorizes and appoints (and each permitted Transferee of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder (Fortress as the “Representative”)” for all purposes under this Agreement and as such Seller’s representative, as its agent and attorney-in-fact for all purposes in connection with this Agreement and the agreements ancillary hereto, with full power authority to act on behalf of, and to bind, each such Person for purposes of substitution, to serve as the representative of such Stockholder to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including and the voting of the Subject Shares in accordance with Sections 4(a) and 4(b))agreements ancillary hereto, and the Representative hereby acknowledges accepts such appointment; provided, however, that the Representative shall be authorized not have authority to amend, waive or otherwise modify the provisions of Section 11.4(a)(iii) hereof or to take any action so required, authorized or contemplated by this Agreementdescribed in Section 12.18. Each such Stockholder further acknowledges that the foregoing appointment and designation The Buyer shall be deemed entitled to 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 Representative, and on any other action taken or purported to be taken on behalf of any Seller by the Representative, as being fully binding upon such Seller. Notices or communications to or 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 survive not be terminated by any act of any one of the Sellers, or by operation of law, whether by death or incapacity of such Stockholder. Each such Stockholder hereby authorizes other event.
(b) The Representative may resign at any time, and each such Permitted Transferee of such Stockholder shall may be deemed to have authorized) the other parties hereto to disregard removed for any notices reason or other action taken by such Stockholder pursuant to this Agreement, except for notices and actions taken no reason by the Representative. Oracle is and will be entitled to rely on any action so taken vote or any notice given by the Representative and is and will be entitled and authorized to give notices only to the Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to the Representative may be chosen by written consent of a majority in interest of the StockholdersSellers 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 of the death, incapacity, resignation or removal of the Representative, a new Representative shall be appointed by the vote or written consent of the Majority Holders. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to the Buyer, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by the Buyer; provided that until such notice thereof is given by received, the new Representative Buyer shall be conclusively entitled to Oracle.
(b) Notwithstanding rely on the generality of Section 6(a), each Stockholder hereby constitutes decisions and appoints the Representative with full power of substitution, as the proxy pursuant to the provisions of Section 212 actions of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the prior Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent as described in lieu thereof or otherwiseSection 12.17(a) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder 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 irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers of attorney granted with respect to any of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b)above.
Appears in 1 contract
Sources: Development, Option and Stock Purchase Agreement (Fortress Biotech, Inc.)
Representative. (a) Each Stockholder hereby designates and appoints (and Subject to Section 10.21(b), each permitted Transferee of each such Stockholder is hereby Seller shall be deemed to have so designated irrevocably constituted, appointed, authorized, directed and appointed) Chairman Stockholder (empowered, effective as of the “Representative”)Closing, the Representative to act as its sole and exclusive agent, attorney-in-fact and representative of such Seller, with full power of substitution, with respect to serve as all matters under this Agreement and the representative agreements ancillary hereto, including giving and receiving notices hereunder, entering into any amendment or modification hereof, engaging special counsel, accountants or other advisors or incurring such other expenses on behalf of the Sellers, holding back from disbursement to any Seller any such Stockholder funds to perform the extent it reasonably determines may be necessary or required under the terms and conditions of this Agreement or applicable Law, negotiating, settling, compromising or otherwise resolving any dispute hereunder (including any disputes relating to the Adjustment Escrow Amount) or doing any and all such acts as are requiredthings and taking any and all actions, authorized in each case that the Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement to be performed by such Stockholder (including the voting of the Subject Shares in accordance with Sections 4(a) and 4(b)), and hereby acknowledges that the Representative shall be authorized to take any action so required, authorized or contemplated by this Agreement. Each such Stockholder 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 Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Agreement, except for notices and actions taken by the Representative. Oracle is and will be entitled to 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 Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to the Representative may be chosen by a majority other documents or instruments entered into in interest of the Stockholders; provided that notice thereof is given by the new Representative to Oracleconnection herewith.
(b) Notwithstanding the generality of Section 6(a10.21(a), each Stockholder hereby constitutes if a matter relates solely to Blocker or the Blocker Seller and appoints could not reasonably be expected to adversely affect any Non-Blocker Seller, then the Representative with full power of substitution, as the proxy pursuant ability to the provisions of Section 212 of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the Representative to represent, vote and otherwise act take any action (by voting at or refrain from taking any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwiseaction) with respect to such matter is hereby delegated solely to the Subject Shares owned Blocker Seller.
(c) Neither the Representative nor any of its officers, directors, managers, employees, agents or held representatives shall incur any responsibility or liability whatsoever to any Seller by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or any such Stockholder regarding other agreement, instrument or document, except to the matters referred extent any act or failure to act constitutes fraud or willful misconduct. The Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in Sections 4(athe matter at issue. The Representative shall not be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement. Each Seller shall, severally and not jointly, 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 4(bperformance of this Agreement and the agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred, on a pro rata basis consistent with the Payout Schedule; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the fraud or willful misconduct of the Representative, the Representative will reimburse the Sellers the amount of such indemnified Representative Loss to the extent attributable to such fraud or willful misconduct. If not paid directly to the Representative by the Sellers, any such Representative Losses may be recovered by the Representative from (i) until the funds in the Representative Expense Fund and (ii) the amounts in the Adjustment Escrow Account at such time as remaining amounts would otherwise be distributable to the Sellers; provided, that while this section allows the Representative to be paid from the Representative Expense Fund and the Adjustment Escrow Account, this does not relieve the Sellers of their obligation to promptly pay such Representative ▇▇▇▇▇▇ as they are suffered or incurred (consistent with the allocation in the immediately preceding sentence), nor does it prevent the Representative from seeking any remedies available to it at law or otherwise. Notwithstanding anything to the contrary in this Agreement, in no event will the Representative be required to advance its own funds on behalf of the Sellers or otherwise. The Representative may consult with counsel of its own choice and will have full and complete authorization and protection for any action taken and suffered by it in good faith and in accordance with the opinion of such counsel. The indemnity obligations of this Section 10.21(c) shall survive the Closing, the resignation or removal of the Representative or any termination of this Agreement pursuant to Section 9.02.
(d) ▇▇▇▇▇ shall have the right to rely upon all actions taken or omitted to be taken by the Representative hereunder or in connection with this Agreement. All decisions, actions, consents and instructions of the Representative authorized to be made, taken or given pursuant to this Section 10.21 shall be final and binding upon all the Sellers, and no Seller shall have any right to object, dissent, protest or otherwise contest the same.
(e) At the Closing, ▇▇▇▇▇ shall deliver to the Representative the Representative Expense Fund, to be held to cover and reimburse the same extent fees, expenses and other monetary obligations incurred by the Representative in connection with the same effect as such Stockholder might or could do carrying out by the Representative of its duties under applicable law, rules and regulationsthis Agreement. The proxy granted Representative Expense Fund will be used for the purposes of paying directly, or reimbursing the Representative for, any third party expenses, charges or liabilities pursuant to this Agreement and any agreements ancillary hereto. The Sellers will not receive any interest or earnings on the Representative 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 Representative Expense Fund other than as a result of its fraud 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.
(f) As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver (or will cause to be delivered) the balance of the Representative Expense Fund to the Sellers the portion of the balance of the Representative Expense Fund such holder is entitled to receive in accordance with this Agreement and the Payout Schedule. In the event that any amount is owed to the Representative, whether for fees, expense reimbursement or indemnification, that is in excess of the amounts remaining in the Representative’s Expense Fund, the Representative shall be entitled to be reimbursed by the Sellers on a pro rata basis (consistent with the allocation in the immediately preceding sentence is coupled with an interest sentence), and the Sellers shall be irrevocableso reimburse the Representative. Each Stockholder hereby revokes any and all previous proxies or powers of attorney granted with respect Upon written notice from the Representative to the Sellers as to any such owed amount, including a reasonably detailed description as to such owed amount, each Seller shall promptly deliver to the Representative full payment of his, her or its pro rata share of such owed amount (determined on a basis consistent with the Subject Shares owned or held allocation in the first sentence of this Section 10.21(f)). For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b)Sellers at the time of Closing.
Appears in 1 contract
Sources: Securities Purchase Agreement (e.l.f. Beauty, Inc.)
Representative. (a) Each Stockholder hereby designates Mr. ▇▇▇▇ ▇▇▇ll, by virtue of the Merger and appoints (and each permitted Transferee of each such Stockholder is hereby deemed the resolutions to have so designated and appointed) Chairman Stockholder (be adopted by the “Representative”)Shareholders, as its be irrevocably appointed attorney-in-fact and authorized and empowered to act, for and on behalf of any or all of the Shareholders (with full power of substitutionsubstitution in the premises) in connection with the indemnity provisions of Article 11 as they relate to the Shareholders generally, the Escrow Agreement, the notice provision of this Agreement, and such other matters as are reasonably necessary for the consummation of the Transactions including, without limitation, to serve act as the representative of such Stockholder Shareholders to perform 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 acts further actions as are required, authorized or contemplated by 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 performed by such Stockholder (including the voting of the Subject Shares in accordance with Sections 4(a) and 4(b)), and hereby acknowledges that the Representative shall be authorized to take any action so required, authorized or contemplated by this Agreement. Each such Stockholder 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 Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Agreement, except for notices and actions 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. Oracle is Jabil and will the Surviving Corporation and each of their respective affiliates shall be entitled to rely on any action so taken or any notice given by such appointment and treat such Representative as the Representative and is and will be entitled and authorized to give notices only to the Representative for any notice contemplated by this Agreement to be given to any such Stockholderduly appointed attorney-in-fact of each Shareholder. A successor to the Representative may be chosen by a majority Each Shareholder who votes in interest favor of the Stockholders; provided that notice thereof is given by the new Representative to Oracle.
(b) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints the Representative with full power of substitution, as the proxy Merger pursuant to the provisions of Section 212 of the Delaware General Corporation Law and attorney of terms hereof, by such Stockholdervote, without any further action, and hereby authorizes and empowers each Shareholder who receives any Jabil Shares in connection with the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the CompanyMerger, by written consent in lieu acceptance thereof or otherwise) with respect to the Subject Shares owned or held by and without any further action, confirms such Stockholder regarding the matters referred to in Sections 4(a) appointment and 4(b) until the termination of this Agreement, to the same extent authority and with the same effect as acknowledges and agrees that such Stockholder might or could do under applicable law, rules appointment is irrevocable and regulations. The proxy granted pursuant to the immediately preceding sentence is coupled with an interest and shall be irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers interest, it being understood that the willingness of attorney granted with respect Jabil to any enter into this Agreement is based, in part, on the appointment of a representative to act on behalf of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b)Shareholders.
Appears in 1 contract
Sources: Merger Agreement (Jabil Circuit Inc)
Representative. (a) Each Stockholder In order to efficiently administer the transactions contemplated hereby, including (i) the determination of the Final Closing Adjustment, the Adjusted Purchase Price and 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 Seller hereby designates designates, nominates, constitutes and appoints (and each permitted Transferee of each the Representative as such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder (the “Representative”)Seller’s representative, as its attorney-in-fact and agent.
(b) Each Seller hereby authorizes the Representative (i) to make all decisions relating to the determination of the Final Closing Adjustment and the Adjusted Purchase Price pursuant to Section 1.5 and the Earn-Out Consideration pursuant to Section 1.8, (ii) to take all action necessary in connection with full power the defense and/or settlement of substitutionany claims for which any Seller may be required to indemnify the Buyer pursuant to Article VI hereof, (iii) to serve as the representative of such Stockholder to perform give and receive all such acts as are required, authorized or contemplated by this Agreement notices required to be performed by such Stockholder (including given under the voting of the Subject Shares in accordance with Sections 4(a) and 4(b))Agreement, and hereby acknowledges (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.
(c) In the event that the Representative becomes unable to perform such Person’s responsibilities hereunder or resigns from 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 be authorized select another representative to take any action so requiredfill the vacancy of the Representative, authorized or contemplated by this Agreement. Each and such Stockholder further acknowledges that the foregoing appointment and designation substituted representative shall be deemed to 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 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. Furthermore, the Sellers shall indemnify and 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 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 1.9 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 1.9; and
(v) the provisions of this Section 1.9 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.
(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 such Stockholder. Each such Stockholder hereby authorizes each of the Sellers.
(and each such Permitted Transferee of such Stockholder g) The Representative shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Agreement, except for notices and actions taken by the Representative. Oracle is and will be entitled to rely on treat as genuine, and as the document it purports to be, any action so taken letter, facsimile, telex or any notice given other document that is believed by the Representative and is and will be entitled and authorized to give notices only to the Representative for any notice contemplated by this Agreement to be given genuine and to any such Stockholder. A successor to the Representative may be chosen have been telexed, telegraphed, faxed or cabled by a majority in interest of the Stockholders; provided that notice thereof is given Seller or to have been signed and presented by the new Representative to Oraclea Seller.
(bh) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints All expenses incurred by the Representative in connection with full power of substitution, as the proxy pursuant to the provisions of Section 212 performance of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the Representative’s duties as Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder 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 irrevocable. Each Stockholder hereby revokes any borne and all previous proxies or powers of attorney granted with respect to any of paid by the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b)Sellers.
Appears in 1 contract
Sources: Stock Purchase Agreement (Parexel International Corp)
Representative. (a) Each Stockholder Seller hereby designates and appoints (and each other Seller Party pursuant to the Required Documentation shall thereby) appoints the Representative for and on behalf of the Seller Parties to give and receive notices and 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 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 amendments to this Agreement or any Ancillary Agreement to which it is a party or to the termination hereof or thereof) required or permitted Transferee hereunder on behalf of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder Seller (the “Representative”), as its attorney-in-fact with full power of substitution, to serve as the representative of or such Stockholder to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including the voting of the Subject Shares in accordance with Sections 4(a) and 4(b)other Seller Party), and hereby acknowledges that any such action, decision or determination so made or taken shall be deemed the action, decision or determination of 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 action so required, authorized claims made under Articles 6 or contemplated by this Agreement. Each such Stockholder further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the death or incapacity 7 of such Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Agreement, except for notices to defend or settle such claims, and actions taken 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 promptly (and no later than the effective date of the Representative’s resignation) appoint a successor Representative, in accordance with the following sentence. The Seller Parties may remove or replace the Representative by a vote of holders that own a majority of the Company’s capital stock immediately prior to Closing upon not less than ten (10) Business Days’ prior written notice to Buyer. No bond will be required of the Representative. Oracle is and will be entitled Notices or communications to rely on any action so taken or any notice given by from the Representative and is and will be entitled and authorized constitute notice to give notices only to the Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to the Representative may be chosen by a majority in interest or from each of the Stockholders; provided that notice thereof is given by the new Representative to OracleSeller Parties.
(b) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints The Representative will not be liable for any act done or omitted hereunder as the Representative with full power of substitutionwhile acting in good faith and not in a manner constituting gross negligence or willful misconduct, as the proxy and any act done or omitted pursuant to the provisions advice of Section 212 counsel will be conclusive evidence of such good faith. The Seller Parties will indemnify the Representative and hold the Representative harmless 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 acceptance or administration of the Delaware General Corporation Law Representative’s duties hereunder and attorney under the 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 Seller Parties the amount of such Stockholderindemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Representative by the Seller Parties, any such Representative Losses may be recovered by 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 hereby authorizes and empowers (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 Representative to representbe paid from the Escrow Funds and the Earnout Funds, vote and otherwise act (by voting it does not relieve the Seller Parties from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Representative from seeking any remedies available to it at any meeting Law or otherwise. In no event will the Representative be required to advance its own funds on behalf of the Stockholders Seller Parties or otherwise. The Seller Parties acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Company, by written consent in lieu thereof Representative or otherwise) with respect to the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b) until the termination of this Agreement. For the avoidance of doubt, any restrictions or limitations on indemnities contained elsewhere in this Agreement are not intended to be applicable to the same extent and with the same effect as such Stockholder might or could do under applicable law, rules and regulations. The proxy granted pursuant indemnities provided to the immediately preceding sentence is coupled with an interest Representative under this Section 9.16(b).
(c) A decision, act, consent or instruction of the Representative will constitute a decision of all Seller Parties and shall will be irrevocablefinal, binding and 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. Each Stockholder Buyer Indemnitees are hereby revokes relieved from any and all previous proxies or powers of attorney granted with respect Adverse Consequences to any Person for any acts done by such Buyer Indemnitees in accordance with such decision, act, consent or instruction of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b)Representative.
Appears in 1 contract
Representative. (a) Each Stockholder hereby designates Effective upon the approval of the Merger and appoints (and each permitted Transferee of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder (the “Representative”), as its attorney-in-fact with full power of substitution, to serve as the representative of such Stockholder to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including the voting of the Subject Shares in accordance with Sections 4(a) and 4(b))Stockholders, and hereby acknowledges that without any further act of any Stockholder, holder of Series B Warrant or Participant, the Representative shall be authorized irrevocably constituted and appointed as the Representative for and on behalf of both the Stockholders, holders of Series B Warrant and the Participants contemplated by Schedule 2.7 to give and receive notices and communications, take any and all actions arising out of, or in connection with, this Agreement and the Ancillary Agreements, including for purposes of taking any action or omitting to take action on behalf of all Stockholders, holders of Series B Warrant and Participants or each of them hereunder or thereunder, to authorize delivery to the Buyer or any action so requiredother Buyer Indemnified Party of any amounts from the funds held by the Escrow Agent in satisfaction of claims by the Buyer or such other Buyer Indemnified Party, authorized to negotiate, enter into settlements and compromises of and comply with orders of courts with respect to such claims, and to take all actions necessary or contemplated by appropriate in the judgment of the Representative for the accomplishment of the foregoing, and to carry out all other obligations set forth specifically for the Representative in this Agreement. Each such Stockholder further acknowledges that Such agency may be changed by the foregoing appointment persons and designation shall be deemed entities set forth on Schedule 2.7 and representing two-thirds of the payments to be coupled with an interest made thereunder of upon not less than ten (10) calendar days’ prior written notice to all such persons and shall survive entities, Buyer and the death Escrow Agent. Notices of communications to or incapacity of such Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Agreement, except for notices and actions taken by the Representative. Oracle is and will be entitled to rely on any action so taken or any notice given by from the Representative and is and will be entitled and authorized to give notices only pertaining to the powers and duties of the Representative for any shall constitute notice contemplated by this Agreement to be given or from each of the Stockholders, holders of Series B Warrant and Participants with respect to any such Stockholder. A successor to the Representative may be chosen by a majority in interest of the Stockholders; provided that notice thereof is given by the new Representative to Oracleitem.
(b) Notwithstanding The Representative shall not be liable to any Stockholder, holder of Series B Warrant or Participant for any act done or omitted hereunder as Representative while acting in good faith and in the generality exercise of Section 6(areasonable judgment. The Representative will serve without compensation unless otherwise agreed in a separate agreement among the Stockholders, holders of Series B Warrant, Participants and the Representative. The Stockholders, holders of Series B Warrant and the Participants shall jointly and severally and on a pro rata basis, based on the amounts set forth on Schedule 2.7, indemnify and defend the Representative and hold the Representative harmless against any Loss incurred by the Representative and arising out of or in connection with the acceptance, performance or administration of the Representative’s duties hereunder and under the Ancillary Agreements (including the Escrow Agreement), each Stockholder hereby constitutes including the reasonable fees and appoints expenses of any legal counsel, accountants, auditors and other advisors retained by the Representative.
(c) A decision, act, consent or instruction of the Representative with full power shall constitute a decision of substitution, as the proxy pursuant to the provisions of Section 212 all of the Delaware General Corporation Law Stockholders, holders of Series B Warrant and attorney of such Stockholderthe Participants, and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder 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 irrevocablefinal, binding and conclusive upon each and every Stockholder, holder of Series B Warrant and Participant, and the Escrow Agent and Buyer may rely upon any decision, act, consent or instruction of each and every Stockholder. Each Stockholder The Escrow Agent and Buyer are hereby revokes relieved from any and all previous proxies or powers of attorney granted with respect liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b)Representative.
Appears in 1 contract
Representative. (a) Each By (i) voting in favor of the Merger, (ii) executing and delivering to Buyer the Supporting Stockholder hereby Option Agreement, (iii) executing and delivering an Option Termination Agreement to the Company and Buyer, (iv) exchanging shares of Company Capital Stock for any payment pursuant to Article II, (v) executing and delivering a Bonus Recipient Agreement or (vi) accepting any payment under an Option Termination Agreement or Bonus Recipient Agreement, each Company Securityholder irrevocably approves and designates the Representative to be the representative, individually and appoints collectively, of the Company Securityholders for purposes of this Agreement as set forth in this Section 2.9 or otherwise as specifically set forth in this Agreement and for purposes of the Escrow Agreement and the Supporting Stockholder Option Agreement. The Company Securityholders shall be bound by any and all actions taken by the Representative pursuant to the powers granted to the Representative pursuant to this Section 2.9. Buyer and Merger Sub shall be entitled to rely in good faith upon any communication or writings given or executed by the Representative that on their face purport to be within the scope of this Section 2.9.
(and each permitted Transferee of each such Stockholder b) The Representative is hereby deemed to have so designated appointed and appointed) Chairman Stockholder (constituted the “Representative”), as its true and lawful attorney-in-fact of each Company Securityholder, with full power in its, his or her name and on its, his or her behalf to act according to the terms of substitutionthis Agreement, to serve as the representative of such Supporting Stockholder to perform all such acts as are required, authorized or contemplated by this Option Agreement to be performed by such Stockholder (including and the voting Escrow Agreement in the absolute discretion of the Subject Shares in accordance Representative (except to the extent otherwise required to act hereunder) with Sections 4(arespect to the following matters: (i) giving and 4(b))receiving of notices hereunder or under the Supporting Stockholder Option Agreement or the Escrow Agreement, and hereby acknowledges that the Representative shall be authorized to take any action so required, authorized or contemplated by this Agreement. Each such Stockholder further acknowledges that the foregoing appointment and designation notice shall be deemed to have been validly given by or delivered to each Company Securityholder; (ii) contesting, defending and settling any and all Claims for indemnification as provided for in Sections 2.8 or Article IX, including authorizing the release of cash held pursuant to the Escrow Agreement to satisfy such Claims, and including by not objecting to such Claims, (iii) taking actions delegated to the Representative in this Agreement or the Escrow Agreement, (iv) taking any actions, giving any notice, releasing any funds and making any decisions as the Representative as set forth in this Agreement, the Supporting Stockholder Option Agreement or the Escrow Agreement, (v) reviewing and commenting on any Tax Returns and acting with respect to any Tax audits or inquiries, (vi) agreeing to waive or amend, and executing any such waiver or amendment of, any provision of this Agreement or the Escrow Agreement, and any such waiver or amendment shall be binding on such Company Securityholders, (vii) consummating any Contemplated Transactions to that extent action is required or advisable to be taken by the Representative in his, her or its capacity as such or by any Company Securityholders, and (viii) taking all actions necessary, convenient or advisable in the judgment of the Representative (which judgment shall be proved conclusively by the taking of such actions) for the accomplishment of the foregoing or any of the Contemplated Transactions. This power of attorney and agency and all authority hereby conferred is granted in consideration of the mutual covenants and agreements made herein, and shall be irrevocable, coupled with an interest and shall survive the not be terminated by any act of any Company Securityholder or any other Person, or by operation of law, whether by such Company Securityholder’s death or incapacity any other event. Notwithstanding the foregoing, Company Securityholders holding a majority of the Fully-Converted Common Shares as of immediately prior to the Effective Time, upon written notice to Buyer, the Escrow Agent and the Representative, shall have the right to remove the Representative, provided that at the time of removal of the Representative, his, her or its successor is appointed and acknowledges and accepts such Stockholderappointment in writing. Each such Stockholder hereby authorizes (The Representative may resign at any time upon no less than 20 days’ written notice to Buyer, the Escrow Agent and each Company Securityholder, and if the initial Representative named in this Agreement shall resign he shall automatically and without any further action by any Person be replaced by A▇▇▇▇▇ ▇▇▇▇▇▇▇. Thereafter, A▇▇▇▇▇ ▇▇▇▇▇▇▇ may resign at any time upon no less than 20 days’ written notice to Buyer, the Escrow Agent and each Company Securityholder (or such Permitted Transferee longer notice period of such Stockholder up to no less than 60 days’ written notice if a successor Representative has not been selected prior to the applicable resignation date). If A▇▇▇▇▇ ▇▇▇▇▇▇▇ shall give notice of intent to resign, or ceases to act as the Representative for any reason, the holders of at least a majority of the Fully-Converted Common Shares outstanding as of immediately prior to the Effective Time shall, by written notice to Buyer, appoint a successor Representative within 30 days. After the Representative’s resignation or removal hereunder, the provisions of this Section 2.9 shall continue in effect with respect to the Representative who resigned or was removed in respect of any actions taken or omitted to be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such the Representative while he, she or it was acting as the Representative. It is agreed that the Representative shall at all times be the same Person as the “Shareholder Representative” pursuant to the Supporting Stockholder Option Agreement.
(c) The Representative shall not be liable to any of the Company Securityholders or any of their respective Affiliates in the absence of fraud, gross negligence or willful misconduct on the part of the Representative for any decisions made or actions taken by the Representative pursuant to this Agreement, a Supporting Stockholder Option Agreement, an Option Termination Agreement, a Bonus Recipient Agreement or the Escrow Agreement and shall have no duties or obligations except for notices those expressly set forth in this Agreement, a Supporting Stockholder Option Agreement, an Option Termination Agreement, a Bonus Recipient Agreement and actions taken the Escrow Agreement. Without limiting the generality of the foregoing, the Representative (i) shall not be subject to any implied duties, (ii) shall have no duty to take any discretionary action or exercise any discretionary powers, and (iii) shall not be required to take any action that, in the opinion of its counsel, reasonably could be expected to expose the Representative to Liability or that is contrary to law. All expenses of the Representative in excess of amounts available to the Representative to cover Representative Expenses pursuant to the Escrow Agreement shall be borne by the Company Securityholders. Each of the Company Securityholder agrees, severally, in proportion to that number of shares of Fully-Converted Common Shares held by such Company Securityholder as of immediately prior to the Effective Time (other than Dissenting Shares) over the total number of shares of Fully-Converted Common Shares outstanding as of immediately prior to the Effective Time (other than Dissenting Shares), to indemnify the Representative. Oracle is , from and will be entitled against any claims, losses, damages, liabilities, penalties, interest, costs and expenses (including reasonable attorneys, accounting and consulting fees and other reasonable expenses, including any such reasonable expense incurred in connection with investigating, defending against or settling any Claim or preparing any Tax Return, and in each case including any Representative Expenses) that the Representative may incur as a result of its acting as the Representative hereunder or pursuant to rely on the Escrow Agreement or in connection with the performance of any action so taken of its duties hereunder or pursuant to the Escrow Agreement (including those arising from any notice given indemnification by the Representative and is and will be entitled and authorized to give notices only of the Escrow Agent pursuant to the Escrow Agreement) (collectively “Representative for any notice contemplated Losses”) to the fullest extent permitted by this Agreement Applicable Law, except to the extent that such Representative Losses are caused by actions taken by, or omitted to be given to any such Stockholder. A successor to taken by, the Representative may be chosen by a majority in interest of the Stockholders; provided that notice thereof is given by the new Representative to Oracleconstituting fraud, gross negligence or willful misconduct.
(bd) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes The Representative covenants and appoints the Representative with full power of substitutionagrees that, as the proxy pursuant to the provisions of Section 212 of the Delaware General Corporation Law and attorney of such StockholderClosing Date, and hereby authorizes and empowers he, she or it will enter into the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b) until the termination of this Escrow Agreement, to the same extent and with the same effect as such Stockholder 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 irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers of attorney granted with respect to any of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b).
Appears in 1 contract
Sources: Merger Agreement (Mgi Pharma Inc)
Representative. (a) Each Stockholder hereby designates Subject to the terms set forth herein and appoints (and each permitted Transferee effective as of each such Stockholder the Closing, ▇▇▇▇▇▇ Altro is hereby constituted and appointed as the Representative and as agent and true and lawful attorney-in-fact for the Sellers, and the Representative hereby accepts such appointment. Each Seller, by virtue of its adoption of this Agreement and approval of the Transactions, will be deemed to have so designated appointed and appointed) Chairman Stockholder (constituted the “Representative”), Representative as its agent and true and lawful attorney-in-fact with the powers and authority and discretion as set forth in this Agreement. The Representative will have full power and authority to represent the Sellers and their respective successors with respect to all matters arising under this Agreement and the Escrow Agreement, with full powers of substitution, to serve as and all actions taken by the representative Representative hereunder and thereunder authorized by the Sellers (or if applicable, their respective heirs, legal representatives, successors and permitted assigns) who held a majority of such Stockholder to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including the voting power represented by the Shares issued and outstanding immediately prior to the Closing (the “Majority Holders”) will be binding upon the Sellers and their respective executors, heirs, legal representatives and successors as if expressly confirmed and ratified in writing by each of them, and no Seller will have the right to object, dissent, protest or otherwise contest the same. In furtherance of the Subject Shares in accordance with Sections 4(a) foregoing and 4(b))without limitation of the foregoing, and hereby acknowledges that the Representative shall will be authorized the exclusive agent for and on behalf of the Sellers to take (1) enter into the Escrow Agreement; (2) give and receive notices and communications to or from Buyer (on behalf of itself or any action so required, authorized other Sellers) or contemplated by this Agreement. Each such Stockholder 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 Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant Escrow Agent relating to this Agreement, except the Escrow Agreement or any of the other documents contemplated by the Transactions; (3) authorize deliveries to Buyer of cash or other property from the Working Capital Fund upon written authorization by the Majority Holders; (4) take all actions necessary or appropriate in the judgment of the Representative for notices the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance unless otherwise specifically set forth in this Section 5.15(a); (5) subject to Section 7.3 and actions taken upon written authorization by the Majority Holders, execute for and on behalf of each Sellers any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages) and (6) upon written authorization by the Majority Holders, enter into any waiver or extension pursuant to Section 7.4. The Representative will be the sole and exclusive means of asserting or addressing any of the above on behalf of the Sellers, and no Seller will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. Oracle is This appointment of agency and will be entitled to 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 Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to the Representative may be chosen by a majority in interest of the Stockholders; provided that notice thereof is given by the new Representative to Oracle.
(b) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes and appoints the Representative with full power of substitution, as the proxy pursuant to the provisions of Section 212 of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder 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 will be irrevocableirrevocable and will not be terminated by any Seller or by operation of Law, whether by the death or incapacity of any Seller or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Seller or the Representative will have received any notice thereof. Each Stockholder Seller hereby revokes waives any and all previous proxies defenses which may be available to contest, negate or powers disaffirm the action of the Representative taken in good faith under the Escrow Agreement or pursuant to the authority granted in this Agreement. Notwithstanding the power of attorney granted in this Section 5.15, no agreement, instrument, acknowledgement or other act or document will be ineffective solely by reason of the Sellers having signed such agreement, instrument, acknowledgement or other act or document directly. Any action taken by the Representative pursuant to the authority granted in this Agreement will be effective and absolutely binding on the Sellers notwithstanding any contrary action of, or direction from, any such Seller, except in the case of fraud by the Representative. Notwithstanding anything else contained herein, Representative may not take any action that would materially and adversely impact any Seller without such Seller’s prior written consent.
(b) In the event that the Representative becomes unable to perform his responsibilities hereunder or resigns from such position, the Majority Holders 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.
(c) All expenses, if any, incurred by the Representative in connection with respect the performance of his duties as the Representative (the “Representative Expenses”) in excess of the Representative Fund will be borne and paid by the Sellers in accordance with their Pro Rata Share of Company Common Stock as of immediately prior to the Closing. No bond will be required of the Representative. The Representative will also be entitled to advances against Representative Expenses from the Representative Fund, in the judgment and discretion of the Representative, acting reasonably. Representative Expenses will be paid first using amounts on deposit in the Representative Fund, and second directly by the Sellers promptly against presentation of an invoice by the Representative. The Representative is hereby authorized to withdraw all or any portion of the Representative Fund to pay for any Representative Expenses. Notices or communications to or from the Representative will constitute notice to or from each of the Sellers.
(d) The Representative will not be liable to any Seller for any act done or omitted hereunder as the Representative while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert will be conclusive evidence of such good faith. 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 the Sellers or by Buyer or the Escrow Agent. The Representative may assume that any Person purporting to give any notice in accordance with the provisions hereof has been duly authorized to do so. The Sellers will jointly and severally indemnify the Representative and hold the Representative harmless against any loss, Liability or expense incurred without gross negligence or bad faith on the part of the Subject Shares owned Representative and arising out of or held in connection with the acceptance or administration of the Representative’s duties hereunder.
(e) By its signature to this Agreement, the initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended by such Stockholder regarding this Agreement, and agrees to act as the matters referred Representative and to in Sections 4(a) discharge the duties and 4(b)responsibilities of the Representative pursuant to the terms of this Agreement.
Appears in 1 contract
Representative. (a) Each Stockholder hereby designates and appoints (and each permitted Transferee of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Representative”), as its attorney-in-fact with full power ) is hereby designated by each of substitution, the Shareholders to serve as the representative of such Stockholder the Shareholders with respect to perform all such acts as are required, authorized or contemplated by the matters expressly set forth in this Agreement to be performed by such Stockholder (including the voting Representative. Each of the Subject Shares in accordance with Sections 4(a) and 4(b))Shareholders, and by execution of this Agreement, hereby acknowledges that irrevocably appoints the Representative as the agent, proxy and attorney-in-fact for such Shareholder for all purposes of this Agreement, including full power and authority on such Shareholder’s behalf (a) to consummate the transactions contemplated herein, (b) to pay such Shareholder’s expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (c) to disburse any funds received hereunder to such Shareholder and to each other Shareholder, (d) to execute and deliver any certificates representing the Company’s shares of beneficial interest and execution of such further instruments as Merger Corp. shall be authorized 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 action so required, authorized Indemnitee pursuant to Section 9.1 hereof and (h) to do each and every act and exercise any and all rights which such Shareholder or contemplated by Shareholders collectively are permitted or required to do or exercise under this Agreement. Each of the Shareholders agrees that such Stockholder further acknowledges that the foregoing appointment agency and designation shall be deemed to be proxy are coupled with an interest 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 duty to serve in good faith and to perform its designated role under the Agreement but, neither the Representative nor any agent employed by him shall incur any liability to any Shareholder relating to the performance of his duties hereunder except for actions or omissions constituting fraud, bad faith or willful misconduct. Upon the death or incapacity disability of ▇▇▇▇▇▇▇ ▇▇▇▇▇ or the resignation of ▇▇▇▇▇▇▇ ▇▇▇▇▇ as Representative (such Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee resignation shall only be effective upon delivery of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Agreement, except for notices and actions taken by the Representative. Oracle is and will be entitled to rely on any action so taken or any written notice given by the Representative and is and will be entitled and authorized to give notices only to the Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to Shareholders and the Representative may be chosen by a majority in interest of the Stockholders; provided that notice thereof is given by the new Representative to Oracle.
(b) Notwithstanding the generality of Section 6(aSurviving Trust), each Stockholder hereby constitutes and appoints ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall become the designated Representative with full power of substitution, as the proxy pursuant to the provisions of Section 212 of the Delaware General Corporation Law and attorney of such Stockholder, and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder 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 irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers of attorney granted with respect to any of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b)hereunder.
Appears in 1 contract
Sources: Merger Agreement (Broder Bros Co)
Representative. (a) Each Stockholder Shareholder hereby designates and appoints (and each permitted Permitted Transferee of each such Stockholder Shareholder is hereby deemed to have so designated and appointed) Chairman Stockholder ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ (the “Representative”), acting jointly or individually, as its attorneyattorneys-in-fact with full power of substitutionsubstitution for each of them, to serve as the representative of such Stockholder Shareholder to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder Shareholder (including the voting of the Subject Shares in accordance with Sections 4(a) and 4(b)), and hereby acknowledges that the Representative shall be authorized to take any action so required, authorized or contemplated by this Agreement. Each such Stockholder 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 StockholderShareholder. Each such Stockholder Shareholder hereby authorizes (and each such Permitted Transferee of such Stockholder Shareholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder Shareholder pursuant to this Agreement, except for notices and actions taken by the Representative. Oracle Purchaser is and will be entitled to 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 Representative for any notice contemplated by this Agreement to be given to any such StockholderShareholder. A successor to the Representative may be chosen by a majority in interest of the StockholdersShareholders; provided that notice thereof is given by the new Representative to OraclePurchaser.
(b) Notwithstanding the generality of Section 6(a), each Stockholder Shareholder hereby constitutes and appoints the Representative Representative, with full power of substitution, as the proxy pursuant to the provisions of Section 212 of the Delaware Maryland General Corporation Law and attorney of such StockholderShareholder, and hereby authorizes and empowers the Representative Representative, acting individually or jointly, to represent, vote and otherwise act (by voting at any meeting of the Stockholders shareholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder 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 Stockholder 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 irrevocable. Each Stockholder Shareholder hereby revokes any and all previous proxies or powers of attorney granted with respect to any of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b)Shareholder.
Appears in 1 contract
Sources: Voting Agreement (Morgan Stanley)
Representative. (a) Each Stockholder hereby designates and Shareholder irrevocably appoints (and each permitted Transferee of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder ▇▇▇ ▇▇▇▇ (the “Representative”), ) with power of designation and assignment as its true and lawful attorney-in-fact and agent with full power of substitution, to serve act solely and exclusively 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 Representative in its sole discretion deems appropriate, the powers which such Shareholder could exercise under the provisions of this Agreement and to take all actions necessary or appropriate in the judgment of the Representative in connection with this Agreement, which shall include the power and authority to amend, modify, waive or provide consent with respect to, any provision of this Agreement and to execute, deliver and accept such waivers and consents and any and all notices, documents, certificates or other papers to be delivered in connection with this Agreement and the 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 Stockholder to perform all such acts as are required, authorized or contemplated by this Agreement Shareholder if the consideration to be performed received by such Stockholder (including Shareholder pursuant to Article II hereof will be reduced by the voting proposed amendment or if such Shareholder will be disproportionately and adversely affected by the proposed amendment relative to the other Shareholders of the Subject Shares same class. The Representative shall have the power to waive, on behalf of each Shareholder, any attorney-client privileges in accordance connection with Sections 4(a) communications between such Shareholder and 4(b))counsel to the Acquired Companies in connection with the transactions contemplated hereunder. The Buyer and the Buyer Indemnitees, if applicable, will be entitled to rely exclusively upon any notices and hereby acknowledges that 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 each Shareholder to the Representative shall be authorized to take any action so required, authorized or contemplated by this Agreement. Each such Stockholder further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest and all authority conferred hereby shall survive the be irrevocable whether by death or incapacity of such Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder shall be deemed to have authorized) the other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Agreement, except for notices and actions taken by the Representative. Oracle is and will be entitled to 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 Representative for any notice contemplated by this Agreement to be given to any such Stockholder. A successor to Shareholder or the Representative may be chosen by a majority in interest occurrence of the Stockholders; provided that notice thereof is given by the new Representative to Oracleany other event or events.
(b) Notwithstanding the generality of Section 6(a), each Stockholder hereby constitutes Each Shareholder acknowledges and appoints agrees that the Representative with full power of substitution, will not be liable to such Shareholder for any act done or omitted hereunder as the proxy Representative while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to the provisions advice of Section 212 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 Delaware General Corporation Law Representative and attorney arising out of such Stockholder, and hereby authorizes and empowers or in connection with the acceptance or administration of its duties under this Agreement.
(c) The Shareholders will reimburse the Representative to representfor their pro rata share, vote of any out-of-pocket, independent, third-party fees and otherwise act expenses (including fees and expenses of counsel, accountants and other advisors) incurred by voting at any meeting the Representative that arise out of or are in connection with the acceptance or administration of the Stockholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b) until the termination of Representative’s duties under this Agreement, to the same extent and with the same effect as such Stockholder 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 irrevocable. Each Stockholder hereby revokes any and all previous proxies or powers of attorney granted with respect to any of the Subject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b).
Appears in 1 contract
Sources: Share Purchase Agreement (ALPHA & OMEGA SEMICONDUCTOR LTD)