Shareholder Representative. For purposes of this Agreement, the Sky Shareholders hereby designate M▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as the sole and exclusive representative of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative. (a) The Shareholder Representative is hereby constituted and appointed as agent and attorney-in-fact for and on behalf of the Sky Shareholders with respect to the performance of his or her duties as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement. (b) The Shareholder Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky Shareholder shall otherwise exist against the Shareholder Representative. The Shareholder Representative shall not be liable to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwise. (c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative as the duly authorized action of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security Agreement.
Appears in 2 contracts
Sources: Merger Agreement (RDE, Inc.), Merger Agreement (uBid Holdings, Inc./New)
Shareholder Representative. For purposes (a) By virtue of their approval of the Transaction and execution of this Agreement, the Sky Shareholders hereby designate M▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as the sole and exclusive representative each of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed have agreed to appoint Partech International Partners SAS as its agent and attorney-in-fact fact, as the Shareholder Representative for and on behalf of the Sky Shareholders with respect to give and receive notices and communications, to authorize payment to any Purchaser Indemnified Party from the performance Escrow Fund in satisfaction of his or her duties as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated claims by any act of any Sky ShareholderPurchaser Indemnified Party, by operation of Lawto object to such payments, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claimsany Disputes, and demand arbitration resolution or Disputes in accordance with Section 11.8 and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Purchaser Indemnified Party against any Shareholder or by any such Shareholder against any Purchaser Indemnified Party or any Dispute between any Purchaser Indemnified Party and any such Shareholder, in each case relating to such claimsthis Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to Purchaser; provided, however, that the Shareholder Representative may not be removed or any change to the agency made unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent or such change. Notwithstanding the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute a vacancy in the proceeds position of Shareholder Representative may be filled by the holders of a majority in interest of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment Escrow Fund. No bond shall be required of the Shareholder Representative on behalf of the Sky Shareholders in connection with this AgreementRepresentative, the Merger Note, the Guaranty and the Security AgreementShareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders.
(b) The Shareholder Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky Shareholder shall otherwise exist against the Shareholder Representative. The Shareholder Representative shall not be liable to for any Sky act done or omitted hereunder as Shareholder relating Representative while acting in good faith and in the exercise of reasonable judgment. The Shareholders on whose behalf the Escrow Amount was contributed to the performance Escrow Fund shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties under this Agreement for hereunder, including the reasonable fees and expenses of any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken legal counsel retained by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith(“Shareholder Representative Expenses”). The Shareholder Representative shall be indemnified and held harmless by have the Sky Shareholders against all lossesright to withhold Shareholder Representative Expenses actually incurred from its distribution of the Escrow Fund to the Shareholders, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which provided that a certificate setting forth the Shareholder Representative is made a party by reason Expenses actually incurred accompanies any such distribution. A decision, act, consent or instruction of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; providedRepresentative, howeverincluding an amendment, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken extension or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason waiver of this Agreement or pursuant to Section 10.3 and Section 10.4 hereof, shall constitute a decision of the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker Shareholders and shall be entitled to final, binding and conclusive upon the Shareholders; and the Escrow Agent and Purchaser may rely upon any actions taken by such decision, act, consent or instruction of the Shareholder Representative as being the duly authorized action decision, act, consent or instruction of the Shareholders. The Escrow Agent and Purchaser are hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security AgreementRepresentative.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Taleo Corp)
Shareholder Representative. For purposes The shareholders of this AgreementData Labs, by virtue -------------------------- of their approval of the Sky Shareholders hereby designate MAgreement under the Delaware Corporation Law, shall be deemed to have irrevocably constituted and appointed ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as the sole and exclusive representative a committee, effective as of the Shareholders Effective Time (together with such person's permitted successors, the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative"SHAREHOLDER REPRESENTATIVE"), including ancillary agreements such as the Merger Note, Guaranty their true and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as lawful agent and attorney-in-fact for to enter into any agreement in connection with the transactions contemplated by this Agreement, including, without limitation, the resolution of indemnity claims under Article IX hereof and on behalf in accordance with the Escrow Agreement, and any transactions contemplated by the Escrow Agreement, to exercise all or any of the Sky Shareholders powers, authority and discretion conferred on it under any such agreement, to waive any terms and conditions of any such agreement (other than the consideration to be received by the Data Labs shareholders in the Merger), to give and receive notices on their behalf and to be their exclusive representative with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated by any such agreement, including, without limitation, the performance defense, settlement or compromise of his any claim, action or her duties as proceeding for which Yurie or the Company may be entitled to indemnification and the Shareholder RepresentativeRepresentative agrees to act as, and to undertake the duties and responsibilities of, such agent and attorney-in-fact. This power of attorney is coupled with an interest and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other eventirrevocable. The members constituting the Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received act by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required majority vote or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky Shareholder shall otherwise exist against the Shareholder Representativeconsent. The Shareholder Representative shall not be liable to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions action taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred it in connection with any actionits obligations under this Agreement (i) with the consent of shareholders who, suit, proceeding or claim to which the Shareholder Representative is made a party by reason as of the fact that Effective Time, owned a majority in number of the Shareholder Representative was outstanding shares of Data Labs Common Stock (treating the Data Labs Preferred Stock on an as converted basis) or (ii) in the absence of its own gross negligence or willful misconduct. If one or more of the members of the committee acting as the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless unable or unwilling to serve in acting upon such capacity, any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker successor thereof shall be entitled to rely upon any actions taken named by those persons holding two-thirds of the Shareholder Representative as outstanding shares of the duly authorized action Data Labs Common Stock (treating Data Labs Preferred Stock on an as-converted basis) at the Effective Time, and the successor(s) so named shall serve and exercise the powers of the Shareholder Representative on behalf hereunder. If such committee is composed of each Sky Shareholder with respect to any matters set forth in this Agreementone person and no other members thereto are so named within 30 days of the resignation or termination of the last resigning member thereof, the Merger Note, remaining member of such committee shall serve as the Guaranty and the Security AgreementShareholder Representative.
Appears in 2 contracts
Sources: Merger Agreement (Yurie Systems Inc), Merger Agreement (Yurie Systems Inc)
Shareholder Representative. For purposes The Selling Parties, by virtue of their execution and delivery of this Agreement or, with respect to Selling Parties that are not signatories to this Agreement, by virtue of approval of this Agreement and the Merger by the Shareholders in accordance with the requirements of Delaware Law and by their acceptance of any Merger Consideration due to them, will be deemed to have irrevocably constituted and appointed, effective as of the date of this Agreement, IBF (together with its permitted successors, the Sky Shareholders hereby designate M▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as the sole and exclusive representative of the Shareholders (the “"Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative"), including ancillary agreements such as the Merger Note, Guaranty their true and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as lawful agent and attorney-in-fact for fact, and on behalf of the Sky Shareholders with respect to the performance of his or her duties as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions its execution of this Agreement and the documents shall be deemed to be executed and delivered by the Shareholders in connection herewithhave accepted such appointment, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given enter into any agreement in connection with the consummation of the transactions contemplated by this Agreement and or the Merger Note, Guaranty and Security Agreement (including executing this Escrow Agreement, to exercise all or any of the Merger Notepowers, the Guaranty authority and the Security Agreementdiscretion conferred on it under any such agreement, (iii) receive service of process to act as proxy for each Selling Party in connection with any claims under shareholder approvals required in connection with the transactions contemplated by this Agreement, to waive or modify any terms and conditions of any such agreement (other than payment of the Merger NoteConsideration due at Closing), the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give and receive notices on their behalf, and communicationsto be their exclusive representative with respect to any matter, (vi) object suit, claim, action or proceeding arising with respect to any transaction contemplated by any such deliveriesagreement, (viii) distribute including, without limitation, the proceeds assertion, prosecution, defense, settlement or compromise of and claim, action or proceeding for which any Shareholder, Purchaser, or the Merger Note Sub may be entitled to indemnification and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative shall have no duties or responsibilities except those expressly set forth hereinagrees to act as, and no implied covenantsto undertake the duties and responsibilities of, functions, responsibilities, duties, obligations or liabilities on behalf such agent and attorney-in-fact. This power of any Sky Shareholder shall otherwise exist against the Shareholder Representativeattorney is coupled with an interest and is irrevocable. The Shareholder Representative shall not be liable to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions action taken or not taken by the him in his capacity as Shareholder Representative constituted actual fraud either (i) with the consent of stockholders who, as of the date of this Agreement, own a majority in number of the outstanding shares of Company voting stock (considered on an as converted basis), or were taken or not taken (ii) in bad faiththe absence of its own willful misconduct. The If the Shareholder Representative shall be indemnified unable or unwilling to serve in such capacity, its successor shall be named by those persons holding a majority of the shares of Company voting stock outstanding immediately prior to the Effective Time who shall serve and held harmless by exercise the Sky Shareholders against all losses, including costs powers of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant hereunder. Solely with respect to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative in its capacity as the duly authorized action of such, the Shareholder Representative on behalf of each Sky Shareholder with respect shall have no liability to any matters set forth in this AgreementPurchaser, the Merger Note, Company or any of their respective affiliates except for claims based upon fraud or bad faith actions by the Guaranty and the Security AgreementShareholder Representative.
Appears in 2 contracts
Sources: Acquisition Agreement (Ibf Vi Guaranteed Income Fund), Acquisition Agreement (Sunset Brands Inc)
Shareholder Representative. For purposes (a) The Shareholder Parties hereby collectively and irrevocably constitute and appoint the Shareholder Representative as their exclusive agent and attorney-in-fact, with full power and authority, in the name of and for and to act on behalf of all the Shareholder Parties or in the name of the Shareholder Representative (i) to take any and all actions on behalf of the Shareholder Parties with respect to the transactions contemplated by this Agreement, as the Sky Shareholders Shareholder Parties could take if acting individually including settlement, compromise and resolution, with respect to all matters arising under this Agreement for which the Shareholder Representative has been provided with authority, responsibility, management or control in this Agreement, in all such cases as the Shareholder Representative may deem desirable or necessary, (ii) to give and receive all notices, consents, wire transfer payment instructions for the Shareholder Parties, certificates, agreements, waivers, releases, elections, accountings, reports and other communications in connection with the foregoing, (iii) to assert any claim, action, proceeding or investigation against Parent, and (iv) to refrain from enforcing any right of the Shareholder Parties or any of them or the Shareholder Representative arising out of or under or in any manner related to this Agreement or the transactions contemplated hereby. The Shareholder Representative is also authorized (x) to execute and deliver all amendments to this Agreement as the Shareholder Representative deems necessary, advisable or appropriate in connection with any of the foregoing matters and (y) to execute and deliver such other miscellaneous certificates and incidental documents required of any Shareholder Party after the Closing; and all such amendments, agreements certificate and documents shall be fully binding on the Shareholder Parties in all respects and for all purposes.
(b) The foregoing appointment shall be an agency coupled with an interest, and all authority conferred hereby designate Mis irrevocable and is not subject to termination by any Shareholder Party, or by operation of law, whether by death, incapacity or the occurrence of any other event.
(c) ▇▇▇▇▇▇ ▇▇▇▇▇▇ hereby accepts his appointment as the Shareholder Representative on behalf of all the Shareholder Parties pursuant to this Agreement.
(d) If any death, incapacity or other such event with respect to any Shareholder should occur, any action taken, or to be taken, by the Shareholder Representative shall be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not the Shareholder Representative or Parent shall have received notice of such death, incapacity or other event.
(e) Any communication, notice, consent, certificate, agreement, waiver, election, accounting, report or any other matter delivered to the Shareholder Representative in accordance with the provisions of this Agreement shall be deemed delivered to all the Shareholder Parties. Every Party to this Agreement and any other interested Person may rely on any communications, notices, consents, certificates, agreements, waivers, elections, accountings, reports and any other matter sent by the Shareholder Representative as if same had been sent by all the Shareholder Parties. The Shareholder Parties hereby waive any and all claims against Parent based upon the actual or alleged lack of authorization of the Shareholder Representative with respect to any action taken by Parent in reliance on the authority of the Shareholder Representative.
(f) If the Shareholder Representative resigns or shall be unable to serve as the sole and exclusive representative of the Shareholders (the “Shareholder Representative”, then a successor Shareholder Representative shall be selected by the Shareholder Parties who held at least a majority of all Company Shares immediately prior to the Closing, and the Shareholder Parties shall deliver written notice of such appointment to Parent.
(g) To the extent the Shareholder Representative has authority to act on such matter pursuant to this Agreement, Parent and its Affiliates (including, after the Closing, the Surviving Company) are entitled to deal exclusively with respect the Shareholder Representative on all matters relating to those provisions of this Agreement that contemplate Agreement, and the other Ancillary Agreements and the transactions contemplated hereby. Any action taken or not taken or decisions, communications or writings made, given or executed by the Shareholder Representative, including ancillary agreements such as the Merger Notefor or on behalf of any Shareholder Party, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor an action taken or not taken or decisions, communications or writings made, given or executed by such Shareholder Representative.
Party. Parent and its Affiliates (aincluding, after the Closing, the Surviving Company) The Shareholder Representative is hereby constituted and appointed as agent and attorney-in-fact for and on behalf of the Sky Shareholders with respect to the performance of his or her duties as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated entitled to disregard any decisions, communications or writings made, given or executed by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of in connection with this Agreement and the documents to be executed any other agreement or document contemplated hereby and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and unless the Merger Notesame is made, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty given or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of executed by the Shareholder Representative for Representative. Notwithstanding anything to the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative shall have no duties or responsibilities except those expressly contrary set forth herein, from and no implied covenantsafter the Closing, functionsnone of Parent, responsibilitiesthe Surviving Company or any of their respective Affiliates, duties, obligations or liabilities on behalf of any Sky Shareholder shall otherwise exist against the Shareholder Representative. The Shareholder Representative shall not be liable for any liability to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement Person, including any Shareholder, for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions action taken or not taken by the Shareholder Representative constituted actual fraud or were for any act or omission taken or not taken in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that reliance upon the actions taken or not taken or decisions, communications or writings made, given or executed by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon Representative, including any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative as the duly authorized action failure of the Shareholder Representative on behalf (so long as such failure is not the result of each Sky any act or failure to act of Parent) to distribute (or cause to be distributed) or subdivide (or cause to be subdivided) in the correct amounts any payments made to the Shareholder with respect Representative by Parent or its Subsidiaries (including, after the Closing, the Surviving Company) for distribution to any matters set forth in Shareholder, among Shareholders or any other Person; it being understood that once Parent or its Affiliates (including, after the Closing, the Surviving Company) has made a payment to be made pursuant to this Agreement or any other Ancillary Agreement, in accordance with the Merger Noteterms of the relevant agreement, to the Guaranty and Shareholder Representative for distribution to any Shareholder, among Shareholders or to such other Person, such payment shall constitute a complete discharge of the Security Agreementrelevant payment obligation of Parent or such Affiliate.
Appears in 1 contract
Sources: Merger Agreement (Transcat Inc)
Shareholder Representative. For purposes of this Agreement, the Sky Shareholders hereby designate M▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as the sole and exclusive representative of the Shareholders (the “Shareholder Representative”mm) with respect to those provisions of By approving this Agreement that contemplate action and the Transactions or by the executing and delivering a Shareholder RepresentativeLetter of Transmittal or an Optionholder Transmittal Letter, including ancillary agreements such as the Merger Note, Guaranty each Shareholder or Optionholder shall have irrevocably authorized and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as appointed Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as agent such Person’s representative and attorney-in-fact for and to act on behalf of the Sky Shareholders such Person with respect to the performance of his or her duties as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents Escrow Agreement and to be executed take any and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty all actions and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents make any decisions required or permitted to be given in connection with taken by Shareholder Representative pursuant to this Agreement or the consummation Escrow Agreement, including the exercise of the transactions contemplated by this Agreement power to:
(i) give and receive notices and communications;
(ii) authorize delivery to Parent of cash from the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, Purchase Price Adjustment Escrow Fund in satisfaction of any amounts owed to Parent pursuant to Section 2.17;
(iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts or otherwise handle any other matters described in Section 2.17;
(iv) execute and awards of arbitrators with respect to such claims, and to take deliver all actions documents necessary or appropriate in desirable to carry out the judgment intent of this Agreement and any Ancillary Document (including the Shareholder Representative for the accomplishment of the foregoing, Escrow Agreement);
(v) give make all elections or decisions contemplated by this Agreement and receive notices and communications, any Ancillary Document (including the Escrow Agreement);
(vi) object engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to such deliveries, assist Shareholder Representative in complying with its duties and obligations; and
(viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ixvii) take all actions necessary or appropriate in the good faith judgment of Shareholder Representative for the accomplishment of the foregoing. Parent shall be entitled to deal exclusively with Shareholder Representative on all matters relating to this Agreement 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 Shareholder or Optionholder by Shareholder Representative, and on any other action taken or purported to be taken on behalf of any Shareholder or Optionholder by Shareholder Representative, as being fully binding upon such Person. Notices or communications to or from Shareholder Representative shall constitute notice to or from each of the Sky Shareholders in connection with this Agreementand Optionholders. Any decision or action by Shareholder Representative hereunder, including any agreement between Shareholder Representative and Parent relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Shareholders and Optionholders and shall be final, binding and conclusive upon each such Person. No Shareholder or Optionholder shall have the right to object to, dissent from, protest or otherwise contest the same. No Person will have any cause of action against Parent, the Merger NoteSurviving Corporation, or any of their Representatives for any action taken by Parent in reliance upon any decision, act, consent, waiver or instruction of Shareholder Representative; and Parent is hereby relieved from any liability to any Person for any acts done by it in accordance with such decision, act, consent, waiver or instruction of Shareholder Representative. The provisions of this Section, including the Guaranty power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or more Shareholders or Optionholders, or by operation of Law, whether by death or other event. Notwithstanding anything to the Security Agreement.
(b) The contrary herein, Shareholder Representative shall have no duties authority to bind any Shareholder or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky Shareholder shall otherwise exist against the Shareholder Representative. The Shareholder Representative shall not be liable Optionholder to any Sky Shareholder relating to payment or obligation that would create any liability beyond the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear Escrow Fund and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faithExpense Amount. The (nn) Shareholder Representative shall may resign at any time, and may be indemnified and held harmless removed for any reason or no reason by the Sky Shareholders against all losses, including costs vote or written consent of defense, paid or incurred a majority in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason interest of the fact that Shareholders and Optionholders according to each Shareholder’s and Optionholder’s Pro Rata Share (the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement“Majority Holders”); provided, however, that the in no event shall Shareholder Representative shall not resign or be entitled to indemnification hereunder to removed without the extent it is finally determined in Majority Holders having first appointed a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the new Shareholder Representative constituted actual fraud who shall assume such duties immediately upon the resignation or were taken removal of Shareholder Representative. In the event of the death, incapacity, resignation or not taken in bad faith. The removal of Shareholder Representative, a new Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed 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 Shareholder Representative shall be sent to Parent, such appointment to be genuine effective upon the later of the date indicated in such consent or the date such notice is received by Parent; provided, that until such notice is received, Parent, Merger Sub and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker shall be entitled to rely upon any on the decisions and actions taken by of the prior Shareholder Representative as the duly authorized action of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth described in this Agreement, the Merger Note, the Guaranty and the Security AgreementSection 9.01(a).
Appears in 1 contract
Sources: Merger Agreement (Corelogic, Inc.)
Shareholder Representative. For purposes of this Agreement, the Sky Shareholders hereby designate M▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as the sole and exclusive representative of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Immediately prior to the Effective Time, each Company Shareholder and Company Option Holder hereby irrevocably constitutes and appoints CMT SR, Inc. as her, his or its Shareholder Representative is hereby constituted as the true and appointed as lawful agent and attorney-in-fact for of such Company Shareholder and/or Company Option Holder with full powers of substitution to act in the name, place and on behalf stead of the Sky Shareholders such Company Shareholder and/or Company Option Holder with respect to the performance of his or her duties as the Shareholder Representative. This power of attorney performance, and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act exercise of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power rights and authorityobligations, on behalf of each Sky such Company Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret and/or Company Option Holder under the terms and provisions of this Agreement Agreement, as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on such Company Shareholder’s and/or Company Option Holder’s behalf, as the documents to be executed and delivered by the Shareholders Shareholder Representative shall deem necessary or appropriate in connection herewith, including with any of the Merger Note, Guaranty and Security transactions contemplated under this Agreement, including:
(iii) execute and deliver this Agreement (and receive deliveries any amendments hereto),
(ii) take all actions required, or agree upon or compromise any matter related to the calculation of all agreementsany true-up adjustments described in Section 2.5, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and or pursuant to the terms hereof or other documents required or permitted payments to be given made in connection with the consummation respect of the transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, including the Merger Note, the Guaranty and the Security Agreement, Merger,
(iii) receive service to do or refrain from doing any act or deed in respect of process in connection with any claims under this Agreement, the Merger Note, the Guaranty exchange procedures contemplated by Section 2.4 or the Security Agreement, related thereto,
(iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give and receive notices and communicationscommunications and receive service of process on behalf of each of the Company Shareholders and Company Option Holders, (v) act on behalf of the Company Shareholders and Company Option Holders with respect to all indemnification matters referred to in this Agreement, including the right to compromise on behalf of such Company Shareholder and/or Company Option Holder any indemnification claim made by or against such Company Shareholder and/or Company Option Holder involving this Agreement, (vi) object act for the Company Shareholders and Company Option Holders with respect to such deliveriesall post-Closing matters, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and including without limitation pursuing any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky Shareholder shall otherwise exist against the Shareholder Representative. The Shareholder Representative shall not be liable to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement claim for any errors in judgment, negligence, oversight, alleged breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative as the duly authorized action of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security Agreement.Parent,
Appears in 1 contract
Sources: Merger Agreement (Ev3 Inc.)
Shareholder Representative. For purposes of this AgreementAgreement the shareholders of SoftMagic, without any further action on the Sky Shareholders hereby designate Mpart of any such shareholder, shall be deemed to have consented to the appointment of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as the sole and exclusive representative of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇Sant'▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as the representative of such shareholders (the "Shareholder Representative"), then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as agent and attorney-in-fact for and on behalf of each such shareholder, and the Sky Shareholders with respect to the performance of his or her duties as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received taking by the Shareholder Representative concerning of any and all actions and the making of any decisions required or permitted to be taken by him under this Agreement. Without limiting , including, without limitation, the generality exercise of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: to (i) interpret execute the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Escrow Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted authorize delivery to be given in connection with the consummation Puma of the transactions contemplated by this Agreement and the Merger NoteEscrow Shares, Guaranty and Security Agreement (including executing this Agreementor any portion thereof, the Merger Note, the Guaranty and the Security Agreementin satisfaction of Indemnification Claims, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claimsIndemnification Claims, (iv) resolve any Indemnification Claims, and to (v) take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give foregoing and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds all of the Merger Note other terms, conditions and limitations of this Agreement and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of Escrow Agreement. Accordingly, the Shareholder Representative has unlimited authority and power to act on behalf of each shareholder of SoftMagic with respect to this Agreement and the Sky Shareholders Escrow Agreement and the disposition, settlement or other handling of all Indemnification Claims, rights or obligations arising from and taken pursuant to this Agreement. The shareholders of SoftMagic will be bound by all actions taken by the Shareholder Representative in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative Puma shall have no duties be entitled to rely on any action or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf decision of any Sky Shareholder shall otherwise exist against the Shareholder Representative. The Shareholder Representative shall not be liable will incur no liability with respect to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions action taken or not taken suffered by the Shareholder Representative constituted actual fraud or were taken or not taken him in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting reliance upon any notice, direction, instruction, consent, statement or certificate other document believed by the Shareholder Representative him to be genuine and to have been furnished signed by the appropriate proper person (and in acting shall have no responsibility to determine the authenticity thereof), nor for any other action or refusing inaction, except his own willful misconduct, bad faith or gross negligence. In all questions arising under this Agreement or the Escrow Agreement, the Shareholder Representative may rely on the advice of counsel, and the Shareholder Representative will not be liable to act anyone for anything done, omitted or suffered in good faith by the Shareholder Representative based on any mattersuch advice. The Shareholder Representative (in his capacity as such) shall will not be liable required to Incumaker take any action involving any expense unless the payment of such expense is made or provided for in a manner satisfactory to him. At any time during the term of the Escrow Agreement, holders of a majority of the Escrow Shares can appoint a new Shareholder Representative by written consent by sending notice and a copy of the written consent appointing such new Shareholder Representative signed by holders of a majority of the Escrow Shares to Puma and the Escrow Agent. Such appointment will be effective upon the later of the date indicated in the consent or the Surviving Corporation date such consent is received by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative as the duly authorized action of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty Puma and the Security AgreementEscrow Agent.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Puma Technology Inc)
Shareholder Representative. For purposes (a) Each of this Agreement, the Sky Closing Date Principal Shareholders hereby designate M▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as the sole irrevocably appoints Riverstone/Carlyle Global Energy and exclusive representative of the Shareholders Power Fund IV (Cayman), L.P. (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representativeas such Closing Date Principal Shareholder’s representative, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as agent and attorney-in-fact and agent, with full power of substitution to act in the name, place and stead of such Closing Date Principal Shareholder, to act for and on behalf of the Sky Shareholders with respect such Closing Date Principal Shareholder to the performance of his or her duties as the Shareholder Representative. This power of attorney take any and all authority hereby conferred is granted actions and shall be irrevocable make any and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver all decisions which under this Agreement as to each Sky Shareholder any notice received by which the Shareholder Representative concerning this Agreement. Without limiting is expressly authorized to act or make, including the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: power:
(i) interpret the terms to take any and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required action necessary or permitted to be given desirable in connection with the consummation waiver of any condition to the obligations of the Closing Date Principal Shareholders to consummate the transactions contemplated by this Agreement Agreement;
(ii) to receive on behalf of the Closing Date Principal Shareholders notice of all indemnification claims by a Parent Indemnified Party pursuant to Article IX and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service to notify all Closing Date Principal Shareholders of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, claim and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) object to connection with such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative indemnifications claims on behalf of the Sky Closing Date Principal Shareholders as may be necessary or desirable; and
(iii) to give instructions to the Escrow Agent in connection with this Agreement, the Merger Note, release of the Guaranty Indemnification Escrow Amount as contemplated by Section 9.6(f). Each of the Closing Date Principal Shareholders hereby consents to and confirms such appointment and the Security Agreementtaking by the Shareholder Representative of any and all such acts and the making of any and all such decisions. Each of the Closing Date Principal Shareholders will be bound by any and all actions taken and any and all decisions made by the Shareholder Representative pursuant to the terms of this Section 10.3, and Parent and the Surviving Company will be entitled to rely on any such actions or decisions.
(b) The Shareholder Representative shall have no duties will not be liable for any act taken or responsibilities omitted by it as permitted under this Agreement, except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations if taken or liabilities on behalf of any Sky Shareholder shall otherwise exist against the Shareholder Representativeomitted in bad faith or by willful misconduct. The Shareholder Representative shall not will also be liable to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors fully protected in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting relying upon any written notice, statement demand, certificate or certificate believed by the Shareholder Representative document that it in good faith believes to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwiseincluding facsimiles thereof).
(c) Incumaker The Closing Date Principal Shareholders agree, severally but not jointly, to indemnify the Shareholder Representative for, and to hold the Shareholder Representative harmless against, any loss, liability or expense incurred without willful misconduct or bad faith on the part of the Shareholder Representative, arising out of or in connection with the Shareholder Representative’s carrying out its duties under this Agreement, including costs and expenses of successfully defending the Shareholder Representative against any claim of liability with respect thereto. To the extent the Shareholder Representative is entitled to any amount as a result of an indemnity claim under this Section 10.3(c), such amount shall be entitled paid by the Closing Date Principal Shareholders pro rata based on each Closing Date Principal Shareholder’s relative percentage ownership of the aggregate amount of Outstanding Shares held by the Closing Date Principal Shareholders at Closing, as set forth opposite such Closing Date Principal Shareholder’s name on Schedule 3.4.
(d) In the event the Shareholder Representative becomes unable or unwilling to rely upon continue to serve in the capacity of Shareholder Representative, he may resign and be discharged from his duties and obligations as Shareholder Representative by giving his resignation to each of the Parties, specifying a date not less than ten days following such notice date of when such resignation will take effect and, in that event, Riverstone/Carlyle Energy Partners IV, L.P. will be deemed to be appointed by the Closing Date Principal Shareholders as the new Shareholder Representative and shall, for all purposes of this Agreement, be the Shareholder Representative. In the event Riverstone/Carlyle Energy Partners IV, L.P. then becomes unable or unwilling to continue in its capacity as Shareholder Representative, Riverstone/Carlyle Energy Partners IV, L.P. may resign and be discharged from its duties or obligations hereunder by giving its resignation to each of the Parties, specifying a date not less than ten days following such notice date of when such resignation will take effect. In that event, Closing Date Principal Shareholders representing at least a majority of the Outstanding Shares at the Closing (the “Closing Date Majority”) will designate a successor representative prior to the expiration of such ten-day period by giving written notice to Parent. At any actions taken time, the Closing Date Majority may remove the Shareholder Representative, provided that a successor Shareholder Representative is appointed at the same time. Until notified in writing by the Shareholder Representative as that Riverstone/Carlyle Energy Partners IV, L.P. has resigned or by the duly authorized action of Closing Date Principal Shareholders that the Shareholder Representative has been removed, Parent may rely conclusively and act upon the directions, instructions and notices of the last known Shareholder Representative and, after such notice, upon the directions, instructions and notices of any successor.
(e) The Shareholder Representative will not be entitled to receive any compensation from Parent, the Surviving Company or the Closing Date Principal Shareholders in connection with performing its functions as the Shareholder Representative under this Agreement. Any out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative in connection with actions taken pursuant to the terms of this Agreement will be paid by the Closing Date Principal Shareholders pro rata based on behalf each Closing Date Principal Shareholder’s relative percentage ownership of each Sky Shareholder with respect to any matters the aggregate amount of Outstanding Shares held by the Closing Date Principal Shareholders at Closing, as set forth in this Agreement, the Merger Note, the Guaranty and the Security Agreementopposite such Closing Date Principal Shareholder’s name on Schedule 3.4.
Appears in 1 contract
Shareholder Representative. For purposes The holders of the outstanding shares of the capital stock of the Company, by virtue of the execution and delivery of this Agreement, the Sky Shareholders hereby designate M▇▇▇▇▇▇ ▇▇▇▇▇▇ will be deemed to serve have irrevocably constituted and appointed, effective as the sole and exclusive representative of the Shareholders date of this Agreement, ________ (together with his permitted respective successors, collectively, the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative), including ancillary agreements such as the Merger Note, Guaranty their true and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as lawful agent and attorney-in-fact for fact, and on behalf the Shareholder Representative, by his execution of this Agreement shall be deemed to have accepted such appointment, to enter into any agreement in connection with the transactions contemplated by this Agreement, to exercise all or any of the Sky Shareholders powers, authority and discretion conferred on him under any such agreement, to act as proxy for each Company Shareholder in connection with any shareholder approvals required in connection with the transactions contemplated by this Agreement, to waive or modify any terms and conditions of any such agreement, to give and receive notices on their behalf, and to be their exclusive representative with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated by any such agreement, including, without limitation, the performance assertion, prosecution, defense, settlement or compromise of his any claim, action or her duties as proceeding for which any Company Shareholder or SOLS may be entitled to indemnification and the Shareholder RepresentativeRepresentative agrees to act as, and to undertake the duties and responsibilities of, such agent and attorney-in-fact. This power of attorney is coupled with an interest and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky Shareholder shall otherwise exist against the Shareholder Representativeirrevocable. The Shareholder Representative shall not be liable to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions action taken or not taken by the him in his capacity as Shareholder Representative constituted actual fraud either (i) with the consent of Shareholders who, as of the date of this Agreement, own a majority in number of the outstanding shares of Company Stock (considered on an as converted basis), or were taken or not taken (ii) in bad faiththe absence of his own willful misconduct. The If the Shareholder Representative shall be indemnified unable or unwilling to serve in such capacity, his successor shall be named by those persons holding a majority of the shares of Company Common Stock outstanding immediately prior to the Closing Date who shall serve and held harmless by exercise the Sky Shareholders against all losses, including costs powers of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant hereunder. Solely with respect to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative in his capacity as the duly authorized action of such, the Shareholder Representative on behalf shall have no liability to SOLS, or any of each Sky its affiliates except for claims based upon fraud by the Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security AgreementRepresentative.
Appears in 1 contract
Shareholder Representative. For purposes (a) By virtue of the vote of the Shareholders approving the Merger and adopting this Agreement, and without any further act of any of the Sky Shareholders Shareholders, Parent is hereby designate M▇▇▇▇▇▇ ▇▇▇▇▇▇ appointed, authorized and empowered to serve act, for the benefit of the Shareholders, as the sole and exclusive representative of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as agent and attorney-in-fact for and on behalf of the Sky Shareholders with respect to the performance of his or her duties as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder Shareholder, in connection with and to facilitate the consummation of the transactions contemplated hereby, including pursuant to the Ancillary Agreements (in such Sky Shareholder’s successors capacity, the “Representative”), which shall include the power and assigns, to: authority:
(i) interpret to execute and deliver the terms Ancillary Agreements to which it is a party (with such modifications or changes therein as to which the Representative, in its sole discretion, shall have consented) and provisions of this Agreement and to agree to such amendments or modifications thereto as the documents Representative, in its sole discretion, determines to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, desirable;
(ii) to negotiate, execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, such waivers, undertakingsmodifications, amendments, consents and other documents required or permitted to be given in connection with this Agreement and the Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby as the Representative, in its sole discretion, may deem necessary or desirable;
(iii) to take any action on behalf of the Shareholders or any individual Shareholder that may be necessary or desirable, as determined by the Representative in its sole discretion, in connection with negotiating or entering into settlements, resolutions and compromises with respect to the adjustments or payments contemplated by Section 2.8;
(iv) to collect and receive all moneys and other proceeds and property payable to the Representative or the Shareholders, as applicable, from Buyer as described herein or in the Ancillary Agreements, and, subject to any applicable withholding retention laws, and net of any out-of-pocket expenses incurred by the Representative, the Representative shall disburse and pay, except as otherwise provided hereunder, any amount payable to the Shareholders to each of the Shareholders to the extent of such Shareholder’s Pro Rata Share of such amount;
(v) to enforce and protect the rights and interests of the Shareholders and to enforce and protect the rights and interests of the Representative arising out of or under or in any manner relating to this Agreement and the Merger NoteAncillary Agreements, Guaranty and Security each other agreement, document, instrument or certificate referred to herein or therein or the transactions provided for herein or therein, and to take any and all actions which the Representative believes are necessary or appropriate under the Ancillary Agreements or this Agreement, including actions in connection with the determination of any payment due hereunder or thereunder for and on behalf of the Shareholders, including (A) assert any claim or institute any Proceeding; (B) investigate, defend, contest or litigate any Proceeding initiated by Buyer, any Affiliate of Buyer, or any other Person, or by any federal, state or local Governmental Entity against the Representative or any of the Shareholders, and receive process on behalf of any or all Shareholders in any such Proceeding and compromise or settle on such terms as the Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Proceeding; (C) file any proofs of debt, claims and petitions as the Representative may deem advisable or necessary; (D) settle or compromise any claims asserted under this Agreement or the Ancillary Agreements; and (including executing E) file and prosecute appeals from any decision, judgment or award rendered in any such Proceeding, it being understood that the Representative shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions;
(vi) to refrain from enforcing any right of any Shareholders or the Representative arising out of or under or in any manner relating to this Agreement, the Merger NoteAncillary Agreements or any other agreement, the Guaranty and the Security Agreement, (iii) receive service of process instrument or document in connection with the foregoing; provided, however, that no such failure to act on the part of the Representative, except as otherwise provided in this Agreement, shall be deemed a waiver of any claims under such right or interest by the Representative or by such Shareholders unless such waiver is in writing signed by the waiving party or by the Representative; and
(vii) to make, execute, acknowledge, deliver and receive all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action 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, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claimsAncillary Agreements, and demand arbitration and comply with orders of courts and awards of arbitrators with respect all other agreements, documents or instruments referred to such claims, and to take all actions necessary herein or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary therein or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders executed in connection with this Agreement, the Merger Note, the Guaranty herewith and the Security Agreementtherewith.
(b) The Shareholder All actions, decisions and instructions of the Representative shall be conclusive and binding upon all of the Shareholders and no Shareholders or any other Person acting on behalf of any Shareholders shall have any claim or cause of action against the Representative, and the Representative shall have no liability to any Shareholders or any other Person acting on behalf of any Shareholders, for any action taken, decision made or instruction given by the Representative in connection with this Agreement or any Ancillary Agreements, except in the case of the Representative’s own gross negligence or intentional misconduct. In the performance of its duties hereunder, the Representative shall be entitled to rely upon any document or instrument reasonably believed by it to be genuine, accurate as to content and signed by any Shareholders, Buyer or any other Person. 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.
(c) The Representative shall have such powers and authority as are necessary or appropriate to carry out the functions assigned to it under this Agreement and in any other document delivered in connection herewith; provided, however, that the Representative shall have no obligation to act on behalf of the Shareholders. The Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of willful misconduct on the part of the Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons. Notwithstanding anything to the contrary contained herein, the Representative in its capacity as such shall have no fiduciary duties or responsibilities to any Shareholders or the Company or its Subsidiaries and no duties or responsibilities except for those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky Shareholder Shareholders shall otherwise exist against or with respect to the Shareholder RepresentativeRepresentative in its capacity as such.
(d) In no event shall the Representative be liable hereunder or in connection herewith for any Non-Reimbursable Damages or for any liabilities resulting from the actions of a Shareholders other than the Representative acting in its capacity as such. Buyer shall have the right to rely upon all actions taken or omitted to be taken by the Representative pursuant to this Agreement and the Ancillary Agreements, all of which actions or omissions shall be legally binding upon the Shareholders. The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable by any act of any Shareholder or by operation of Law and all of the indemnities, immunities, authority and power granted to the Representative hereunder shall survive the death, incompetency, bankruptcy or liquidation of any Shareholder and (ii) shall survive the Closing or any termination of this Agreement or any Ancillary Agreement.
(e) The Representative shall not be liable to for any Sky act done or omitted hereunder or under any Ancillary Agreement as Representative while acting in good faith. Each Shareholder relating shall, to the performance extent of its Pro Rata Share, indemnify the Representative and hold the Representative harmless against any loss, liability or expense incurred without gross negligence or willful misconduct on the part of the Shareholder Representative or any of its Affiliates and any of their respective partners, members, attorneys, accountants, advisors or controlling Persons and arising out of or in connection with the acceptance or administration of the Representative’s duties hereunder (including pursuant to any Ancillary Agreement), including the reasonable fees and expenses of any legal counsel retained by the Representative. Buyer (on its behalf and on behalf of its Affiliates, including, after the Closing, the Company) acknowledges that the Representative, in its capacity as the representative pursuant to this Section 10.5 (and not, for the avoidance of doubt, in its capacity as “Parent” hereunder), is party to this Agreement solely for purposes of serving as the “Representative” hereunder and no claim shall be brought by or on behalf of Buyer or any of its Affiliates (including, after the Closing, the Company) against the Representative in its capacity as such with respect to this Agreement or the agreements or transactions contemplated hereby or any certificate, opinion, instrument or other documents delivered hereunder (with it being understood that any covenant or agreement of or by the “Parties” or “each of the Parties” at or prior to the Closing shall not be deemed to require performance by, or be an agreement of, the Representative unless performance by the Representative is expressly provided for in such covenant or the Representative expressly so agrees).
(f) Upon written notice from the Representative to the Shareholders delivered within two (2) years following the Closing, each Shareholder shall promptly deliver to the Representative full payment of such Shareholder’s Pro Rata Share of all out-of-pocket fees and expenses (including legal, accounting and other advisors’ fees and expenses, if applicable) reasonably incurred by the Representative in performing any actions under this Agreement or the Ancillary Agreements; provided that no Shareholder shall be liable for any errors an amount in judgment, negligence, oversight, breach excess of duty or otherwise except to its Pro Rata Share of the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken Aggregate Stockholder Consideration Value.
(g) Any resignation by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in effective until a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder new Representative shall be held harmless in acting upon any notice, statement or certificate believed appointed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative as the duly authorized action Persons who hold a majority of the Shareholder Representative on behalf Shares (or Shareholders who held a majority of each Sky Shareholder with respect the Shares immediately prior to any matters set forth the Effective Time, if the Closing has occurred) and has confirmed his, her or its acceptance of such appointment in this Agreement, the Merger Note, the Guaranty and the Security Agreementwriting to Buyer.
Appears in 1 contract
Sources: Merger Agreement (Invesco Ltd.)
Shareholder Representative. For purposes (a) The Selling Shareholders, on behalf of itself and any successors and assigns, by execution and delivery of this Agreement, the Sky Shareholders hereby designate M▇▇▇▇irrevocably appoints L▇▇ ▇▇▇▇▇▇ to serve Wei, in the capacity as the sole Shareholder Representative, as each such Person’s agent, attorney-in-fact and exclusive representative representative, with full power of substitution to act in the Shareholders name, place and stead of such Person, to act on behalf of such Person from and after the Closing in connection with: (i) terminating, amending or waiving on behalf of such Person any provision of this Agreement or any Ancillary Documents to which the Shareholder Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Shareholder RepresentativeRepresentative Documents”); (ii) signing on behalf of such Person any releases or other documents with respect to those any dispute or remedy arising under any Shareholder Representative Documents; (iii) employing and obtaining the advice of legal counsel, accountants and other professional advisors as the Shareholder Representative, in its reasonable discretion, deems necessary or advisable in the performance of its duties as the Shareholder Representative and to rely on their advice and counsel; (iv) incurring and paying reasonable out-of-pocket costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable out-of-pocket fees and expenses allocable or in any way relating to such transaction or any indemnification claim; and (v) otherwise enforcing the rights and obligations of any such Persons under any Shareholder Representative Documents, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person; provided, that the Parties acknowledge that the Shareholder Representative is specifically authorized and directed to act on behalf of, and for the benefit of, all Selling Shareholders and their respective successors and assigns. All decisions and actions by the Shareholder Representative shall be binding upon each Selling Shareholder and its successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Agreement that contemplate Section 12.16 are irrevocable and coupled with an interest. The Shareholder Representative hereby accepts its appointment and authorization as the Shareholder Representative under this Agreement.
(b) Any other Person, including the Purchaser Representative, Purchaser and the Company, may conclusively and absolutely rely, without inquiry, upon any actions of the Shareholder Representative as the acts of the Selling Shareholders under any Shareholder Representative Documents. The Purchaser Representative, Purchaser and the Company shall be entitled to rely conclusively on the instructions and decisions of the Shareholder Representative as to (i) any payment instructions provided by the Shareholder Representative or (ii) any other actions required or permitted to be taken by the Shareholder Representative hereunder, and no Selling Shareholder shall have any cause of action against the Purchaser Representative, Purchaser or the Company for any action taken by any of them in reliance upon the instructions or decisions of the Shareholder Representative. The Purchaser Representative, Purchaser and the Company shall not have any Liability to any Selling Shareholder for any allocation or distribution among the Selling Shareholders by the Shareholder Representative of payments made to or at the direction of the Shareholder Representative. All notices or other communications required to be made or delivered to a Selling Shareholder under any Shareholder Representative Document shall be made to the Shareholder Representative for the benefit of such Selling Shareholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to such Selling Shareholder with respect thereto. All notices or other communications required to be made or delivered by a Selling Shareholder shall be made by the Shareholder Representative (except for a notice under Section 10.15(d) of the replacement of the Shareholder Representative).
(c) The Shareholder Representative shall not be liable for any act done or omitted under any Shareholder Representative Document as the Shareholder Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Selling Shareholders shall indemnify, defend and hold harmless the Shareholder Representative from and against any and all losses incurred without gross negligence, bad faith or willful misconduct on the part of the Shareholder Representative (in his capacity as such) and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties under any Shareholder Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative. In no event shall the Shareholder Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Shareholder Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including ancillary agreements such as facsimiles or copies thereof, and no Person shall have any Liability for relying on the Merger NoteShareholder Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ the Shareholder Representative shall have the right at any time is unableand from time to time to select and engage, due to incapacity or otherwiseat the cost and expense of Purchaser, to serve attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other out-of-pocket expenses, as the Shareholder Representative may deem necessary or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representativeappropriate from time to time. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all All of the provisions of this Agreement applicable indemnities, immunities, releases and powers granted to the Shareholder RepresentativeRepresentative under this Section 12.16 shall survive the Closing and continue indefinitely.
(d) The Person serving as the Shareholder Representative may resign upon ten (10) days’ prior written notice to the other Parties to this Agreement, provided that the Shareholder Representative appoints in writing a replacement Shareholder Representative and provides written notice of the identity of such successor to the other Parties hereto. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any such successor Shareholder RepresentativeRepresentatives.
(a) The Shareholder Representative is hereby constituted and appointed as agent and attorney-in-fact for and on behalf of the Sky Shareholders with respect to the performance of his or her duties as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky Shareholder shall otherwise exist against the Shareholder Representative. The Shareholder Representative shall not be liable to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative as the duly authorized action of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security Agreement.
Appears in 1 contract
Shareholder Representative. For purposes of this Agreement11.7.1 At the Closing, the Sky Shareholders hereby designate M▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve shall be constituted and appointed as the sole and exclusive representative of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor The Shareholder Representative shall have all of be the powerexclusive representative, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as agent and attorney-in-fact for and on behalf of the Sky Shareholders with respect to the performance of his or her duties as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, Sellers to: (i) interpret give and receive notices, instructions and communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection with the terms Transactions, for and provisions on behalf of any Seller, to or from Buyer (on behalf of itself or any other Seller) relating to this Agreement or any of the Transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument (except to the documents to extent that this Agreement expressly contemplates that any such notice or communication shall be executed and delivered given or received by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreementa Seller individually), (ii) execute review, negotiate and deliver agree to and receive deliveries authorize Buyer to reclaim an amount from the Aggregate Holdback Amount and Escrow Amount in satisfaction of all agreementsclaims asserted by Buyer (on behalf of itself or any other Buyer Indemnified Party, certificatesincluding by not objecting to such claims) pursuant to Sections 4, statements, notices, approvals, extensions, waivers, undertakings, amendments, 9 and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement10, (iii) receive service of process in connection with any object to such claims under this Agreement, the Merger Note, the Guaranty or the Security Agreementpursuant to Section 10, (iv) consent or agree to, negotiate, enter into into, or, if applicable, contest, prosecute or defend, settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Indemnifying Shareholder or necessary in the judgment of the Shareholder Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, (v) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Indemnifying Shareholders, (vi) consent or agree to, including the execution and delivery of, any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Sellers in accordance with the terms hereof and in the manner provided herein, (vii) pursuant to Section 2 and 3, review, negotiate, object to, accept or agree to Buyer’s calculation of Purchase Price (including any portion thereof such as an Earn-out Payment and any Purchase Price Adjustment); and (viii) take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Zenvia and its Affiliates (vincluding after the Closing, the Companies) give and receive notices and communications, (vi) object shall be entitled to such deliveries, (viii) distribute rely on the proceeds appointment of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of ▇▇▇▇▇▇ as initial the Shareholder Representative on behalf and treat such Shareholder Representative as the duly appointed attorney-in-fact of each Seller and as having the Sky Shareholders duties, power and authority provided for in this Section 11.8. The Sellers shall be bound by all actions taken and documents executed by the Shareholder Representative in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative shall have no duties or responsibilities except those expressly set forth hereinSection 11.8, and no implied covenants, functions, responsibilities, duties, obligations Buyer and other Buyer Indemnified Parties shall be entitled to rely exclusively on any action or liabilities on behalf decision of any Sky Shareholder shall otherwise exist against the Shareholder Representative. The Person serving as the Shareholder Representative may resign, or be removed or replaced at any time by the Seller’s holding more than fifty percent (50%) of the Seller Pro-Rata Share as of immediately prior to the effective time of the Closing, provided that if such Person resigns from its position as the Shareholder Representative, then a successor may be appointed, by the Seller’s holding more than fifty percent (50%) of the Seller Pro-Rata Share as of immediately prior to the effective time of the Closing, upon not less than 10 days’ prior written notice to Buyer.
11.7.2 The Shareholder Representative shall not be liable to any Sky Seller for any act done or omitted hereunder as the Shareholder relating Representative while acting in good faith (and any act done or omitted pursuant to the performance advice of counsel shall be conclusive evidence of such good faith) and without gross negligence or willful misconduct. The Shareholder Representative shall serve as the Shareholder Representative without compensation; provided that the Sellers shall severally but not jointly, on a pro-rata basis (i) in accordance with such Seller’s Seller Pro-Rata Share in the case of matters not related to indemnification matters hereunder, and (ii) in accordance with such Seller’s Indemnification Pro-Rata Share in the case of matters related to indemnification matters hereunder, indemnify the Shareholder Representative and hold him/her/it harmless against any loss, Liability or expense incurred without gross negligence, willful misconduct or bad faith on the part of the Shareholder Representative and arising out of, resulting from or in connection with the acceptance or administration of his duties hereunder, including without limitation all reasonable out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Shareholder Representative (collectively, the “Shareholder Representative Expenses”). If not paid directly to the Shareholder Representative by the Sellers, such losses, Liabilities or expenses may be recovered by the Shareholder Representative from (i) the funds in the Expense Fund Amount and (ii) in the case of Shareholder Representative Expenses related to indemnification matters hereunder, the portion of the Aggregate Holdback Amount or Escrow Account otherwise distributable to the Indemnifying Shareholders (and not distributed or distributable to a Buyer Indemnified Party or subject to a Resolved Claim or an Unresolved Claim) on or after the applicable date of release and payment of such amounts by Buyer to the Indemnifying Shareholders pursuant to the terms hereof, at the time of distribution, and such recovery will be made from the Sellers according to their respective Seller Pro-Rata Shares or Indemnification Pro-Rata Share (depending on whether such matters do not relate, or relate, to indemnification matters hereunder, respectively) of such losses, Liabilities or expenses; provided, that while this section allows the Shareholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Sellers from their obligation to promptly pay such Shareholder Representative Expenses as they are suffered or incurred, nor does it prevent the Shareholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Shareholder Representative be required to advance its own funds on behalf of the Sellers or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of the indemnifying Shareholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Shareholder Representative under this Section. The foregoing indemnities will survive the Closing, the resignation or removal of the Shareholder Representative or the termination of this Agreement.
11.7.3 The Buyer shall not, in any circumstance, be liable for any acts or omissions of the Shareholders Representative related to the Sellers, including, but not limited to, with regards to any conflict or dispute between the Shareholders Representative and the Sellers in relation to the content and conditions of this Agreement. The Sellers agree that the appointment of the Shareholders’ Representative pursuant to his duties mentioned in Section 11.8.1 shall not, in any circumstance, be considered as the Sellers have not reviewed, negotiated or agreed with any provision contained in this Agreement and, as such, the Sellers shall not be exempted from complying with any obligation applicable to the Sellers under this Agreement due to the appointment of the Shareholders’ Representative.
11.7.4 Upon the Closing, Buyer will wire to the Shareholder Representative the Expense Fund Amount, which will be used for the purposes of paying directly, or reimbursing the Shareholder Representative for, any Shareholder Representative Expenses incurred pursuant to this Agreement and any other agreement, document or instrument entered into or executed in connection with the Transactions. The Shareholder Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Expense Fund Amount other than as a result of its gross negligence or willful misconduct. The Shareholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund Amount, and has no tax reporting or income distribution obligations. The Sellers will not receive any interest or earnings on the Expense Fund Amount and irrevocably transfer and assign to the Shareholder Representative any ownership right that they may otherwise have had in any such interest or earnings. As soon as practicable following the earlier of (i) the twenty-four (24) month anniversary of the Closing Date, and (ii) the completion of the Shareholder Representative’s duties under this Agreement for any errors in judgmentresponsibilities, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken will deliver any remaining balance of the Expense Fund Amount to the Indemnifying Shareholders in bad faithaccordance with their Indemnification Pro-Rata Share thereof. The Shareholder Representative shall For tax purposes, the Expense Fund Amount will be indemnified treated as having been received and held harmless voluntarily set aside by the Sky Indemnifying Shareholders against all losses, including costs at the time of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwiseClosing.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative as the duly authorized action of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security Agreement.
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Shareholder Representative. For purposes (a) Each of this Agreement, the Sky Shareholders hereby designate Magree to appoint ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as the sole and exclusive representative of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as its agent and attorney-in-fact fact, as the Shareholder Representative for and on behalf of such Shareholders to give and receive notices and communications, to authorize payment to any Indemnified Party from the Sky Shareholders with respect to the performance Escrow Fund in satisfaction of his or her duties as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated claims by any act of any Sky ShareholderIndemnified Party, by operation of Lawto object to such payments, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, 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 such Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement, the Escrow Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by such Shareholders from time to time upon not less than 30 days prior written notice to Purchaser; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. Notwithstanding the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute a vacancy in the proceeds position of Shareholder Representative may be filled by the holders of a majority in interest of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment Escrow Fund. No bond shall be required of the Shareholder Representative on behalf of the Sky Shareholders in connection with this AgreementRepresentative, the Merger Note, the Guaranty and the Security AgreementShareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders.
(b) The Shareholder Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky Shareholder shall otherwise exist against the Shareholder Representative. The Shareholder Representative shall not be liable to for any Sky act done or omitted hereunder as Shareholder relating Representative while acting in good faith and in the exercise of reasonable judgment. The Shareholders on whose behalf the Escrow Amount was contributed to the performance Escrow Fund shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties under this Agreement for hereunder, including the reasonable fees and expenses of any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken legal counsel retained by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The (“Shareholder Representative shall be indemnified and held harmless by Expenses”). Following the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason termination of the fact that Escrow Period, the Shareholder Representative was acting as resolution of all Unresolved Claims and the Shareholder Representative pursuant to this Agreement; providedsatisfaction of all claims made by Indemnified Parties for Losses, however, that the Shareholder Representative shall not be entitled have the right to indemnification hereunder recover Shareholder Representative Expenses from the Escrow Fund prior to any distribution to the extent it is finally determined in a court Shareholders. A decision, act, consent or instruction of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud Representative, including an amendment, extension or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason waiver of this Agreement or pursuant to Section 10.2 and Section 10.3 hereof, shall constitute a decision of the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker Shareholders and shall be entitled to final, binding and conclusive upon the Shareholders; and the Escrow Agent and Purchaser may rely upon any actions taken by such decision, act, consent or instruction of the Shareholder Representative as being the duly authorized action decision, act, consent or instruction of the Shareholders. The Escrow Agent and Purchaser are hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security AgreementRepresentative.
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Shareholder Representative. For purposes (a) Upon approval by the stockholders of CTI of the Merger, this AgreementAgreement and the other transactions contemplated hereby, the Sky Shareholders hereby designate Mstockholders of CTI will be deemed to have appointed, as of the Effective Time, Edwa▇▇ ▇. ▇▇▇▇▇ (▇▇▇▇▇▇ to serve e "Shareholder Representative") as their representative under this Agreement and the sole and exclusive representative Escrow Agreement, including for purposes of the Shareholders (the “Shareholder Representative”) with respect to those provisions of indemnification obligations set forth in this Agreement that contemplate action by the Shareholder Representative, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder RepresentativeArticle VIII, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as agent and attorney-in-fact and agent for and on behalf of the Sky Shareholders such CTI stockholders with respect authority to the performance of his or her duties as the Shareholder Representative. This power of attorney take any and all authority hereby conferred is granted actions and shall make any and all decisions required or permitted to be irrevocable taken or made by them under this Agreement and shall not be terminated by any act the Escrow Agreement (including the settling of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other eventclaims for indemnity). The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has have full power and authorityauthority as agent of the CTI stockholders to represent the CTI stockholders, on behalf of each Sky Shareholder and such Sky Shareholder’s successors their successors, heirs, representatives, and assigns, to: (i) interpret the terms and provisions of assigns with respect to all matters arising under this Agreement and the documents to be executed Escrow Agreement and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and any other documents required or permitted to be given in connection with the consummation of matters concerning the transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Escrow Agreement (including executing this Agreement, after the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claimsClosing, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of action taken by the Shareholder Representative for shall be binding upon the accomplishment CTI stockholders and their successors, heirs, representatives and assigns as if expressly confirmed and ratified by each of the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreementthem.
(b) The Shareholder Representative shall have no act in good faith in undertaking his duties or responsibilities except those expressly set forth herein. The Shareholder Representative, acting in such capacity, shall not incur any liability with respect to any action or inaction taken by him except those involving his own willful misconduct or gross negligence. The Shareholder Representative may, in all questions arising under this Agreement, rely on the advice of counsel and no implied covenantsfor anything done, functions, responsibilities, duties, obligations omitted or liabilities on behalf of any Sky Shareholder shall otherwise exist against suffered in good faith by the Shareholder Representative. The Representative based on such advice, the Shareholder Representative shall not be liable to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgmentanyone, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined such action or inaction involves 51 52 the Shareholder Representative's own willful misconduct or gross negligence. Nothing set forth in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by this Section 8.7(b) shall in any way relieve the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason a CTI Stockholder of his obligations under this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwiseArticle VIII.
(c) Incumaker shall be entitled to rely upon any actions taken by In the Shareholder Representative as event of the duly authorized action death or permanent disability of the Shareholder Representative on behalf or his resignation as the Shareholder Representative, a successor Shareholder Representative shall be appointed by Roge▇ ▇▇▇▇▇▇. ▇▇ompt notice of each Sky Shareholder with respect to any matters set forth such appointment shall be delivered in this Agreement, the Merger Note, the Guaranty writing by Roge▇ ▇▇▇▇▇▇ ▇▇ WAXS and the Security AgreementEscrow Agent.
Appears in 1 contract
Shareholder Representative. For purposes of this AgreementAs used herein, the Sky Shareholders hereby designate Mterm "Shareholder Representative" shall mean ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ to serve as the sole and exclusive representative of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative▇▇▇, including ancillary agreements such as the Merger Noteor, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ at dies, resigns, or for any time reason refuses or is unableunable to act, due the substitute (which shall be a natural person) specified in a written notice of substitution signed by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or his heirs, successors, assigns, or designees and given to incapacity the Company and Buyer in the manner specified in Section 11.2 hereof. The Company and Buyer shall be entitled to rely conclusively upon action or otherwise, to serve as inaction by the Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform being fully authorized and be bound approved by and binding upon all of the provisions Shareholders and the General Partners notwithstanding any assertion by any Shareholder or General Partner to the contrary, it being the purpose and intent of this Agreement applicable Section 8.11 that Buyer and the Company shall be entitled to treat the Shareholder RepresentativeRepresentative as if such person were the sole selling Shareholder of all Company Shares. Each successor Shareholder Representative shall have all The Shareholders and the General Partners hereby agree among themselves, and with and for the benefit of the powerCompany and Buyer, authority, rights and privileges conferred by this Agreement upon that the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as the agent and attorney-in-fact for each Shareholder and each General Partner with full power, authority and discretion to act on behalf of the Sky Shareholders each Shareholder and each General Partner with respect to the performance all action, inaction, disputes, decisions or other matters arising out of his or her duties as the Shareholder Representativein connection with this Agreement. Such attorney-in-fact shall have full power of substitution. This power of attorney is hereby acknowledged and all authority hereby conferred is granted and shall declared to be irrevocable and shall not be terminated by any act a power coupled with an interest (in favor of any Sky each other Shareholder, by operation of LawGeneral Partner, whether by such Sky Shareholder’s deathBuyer and the Company), disability, protective supervision shall survive the term or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf dissolution of each Sky Shareholder Shareholder, and shall extend to and be binding upon such Sky Shareholder’s successors 's or General Partner's legal representatives, heirs, successors, and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) . The Shareholder Representative shall have no duties liability to any Shareholder or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations General Partner with respect to actions or liabilities on behalf of any Sky Shareholder shall otherwise exist against the omissions in his capacity as Shareholder Representative. The Shareholder Representative shall not be liable to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the such actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken omissions are in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid faith or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwiseconstitute gross negligence.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative as the duly authorized action of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security Agreement.
Appears in 1 contract
Shareholder Representative. For purposes of (a) Except as provided in Section 8.3(b), each Shareholder by executing this Agreement, the Sky Shareholders Agreement hereby designate M▇▇▇irrevocably constitutes and appoints ▇▇▇ ▇▇▇▇▇▇ to serve as the sole and exclusive representative of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative, including ancillary agreements with full power and authority to act in the name of and for and on behalf of such as the Merger NoteShareholder with respect to all matters arising in connection with, Guaranty and Security Agreement; providedor related to, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Escrow Agreement to which such Shareholder Representative” is a party and the transactions contemplated hereby and thereby. Except as used herein shall be deemed to include any successor Shareholder Representative.
(a) The provided in Section 8.3(b), the Shareholder Representative is hereby constituted and appointed as (i) the agent and true and lawful attorney-in-fact of each Shareholder, with full power of substitution, and with full capacity and authority in its sole discretion, to act in the name of and for and on behalf of each Shareholder in connection with all matters arising out of, resulting from, contemplated by or related or incident to this Agreement and the Sky Escrow Agreement, if applicable, and (ii) the agent for service of process for each Shareholder, and the Shareholders with respect hereby irrevocably consent to the performance service of his any and all process in any action or her duties as proceeding arising out of or relating to this Agreement by the delivery of such process to the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the power of the Shareholder Representative has full shall include the power and authorityto represent each Shareholder with respect to all aspects of this Agreement, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assignswhich power shall include, to: without limitation, the power to (i) interpret the terms waive any and provisions all conditions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by amend this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreementany agreement executed in connection herewith in any respect, (iii) receive service of process in connection with bring, assert, defend, negotiate or settle any claims under this Agreement, or actions pursuant to the Merger Note, the Guaranty or the Security Agreementterms hereof, (iv) agree toretain legal counsel or accountants and be reimbursed by the Shareholders for all fees, negotiate, enter into settlements expenses and compromises of, assume the defense other charges of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary legal counsel or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoingaccountants, (v) give and receive notices and or other communications, (vi) object to such deliveriesdeliver any notices, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon certificates or other documents required and (ixvii) take all actions necessary such other action and to do all such other things as the Shareholder Representative deems necessary, appropriate, desirable or appropriate in advisable with respect to this Agreement or the judgment Escrow Agreement; provided, however, that such authority shall not include the authority to receive any payment to be made to the Shareholders pursuant to this Agreement or the Escrow Agreement, which the parties acknowledge and agree shall be made on a pro rata basis based on the relative ownership by the Shareholders of the Corporation’s Stock immediately prior to the Closing as set forth on Schedule 3.2. ▇▇▇▇ and any ▇▇▇▇ Indemnitee shall have the absolute right and authority to rely upon the acts taken or omitted to be taken by the Shareholder Representative on behalf of the Sky Shareholders, and ▇▇▇▇ and any ▇▇▇▇ Indemnitee shall have no duty to inquire as to the acts and omissions of the Shareholder Representative. Each Shareholder hereby acknowledges and agrees that (i) all deliveries by ▇▇▇▇ (other than any payment made in accordance with the proviso at the end of the immediately preceding sentence) shall be deemed deliveries to the Shareholders, (ii) ▇▇▇▇ shall not have any liability with respect to any aspect of the distribution or communication of such deliveries between the Shareholder Representative and any Shareholder and (iii) any disclosure made to the Shareholder Representative by or on behalf of ▇▇▇▇ shall be deemed to be a disclosure made to each Shareholder. In the event such Shareholder Representative refuses to, or is no longer capable of, serving as the Shareholder Representative hereunder, a majority of the Shareholders in connection with this Agreementshall promptly appoint a successor Shareholder Representative who shall be reasonably acceptable to ▇▇▇▇ and shall thereafter be a successor Shareholder Representative hereunder, the Merger Note, the Guaranty and the Security AgreementShareholder Representative shall serve until such successor is duly appointed and qualified to act hereunder.
(b) The Notwithstanding Section 8.3(a): (i) with the prior written consent of ▇▇▇▇, (A) any Shareholder Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of may take any Sky Shareholder shall otherwise exist against the Shareholder Representative. The Shareholder Representative shall not be liable action with respect to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under matter specified in such written consent and arising in connection with, or related to, this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to and the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim Escrow Agreement to which the such Shareholder Representative is made a party by reason and the transactions contemplated hereby and thereby and (B) the appointment of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative as agent and attorney-in-fact for the duly authorized action of purposes set forth in Section 8.3(a) shall be suspended to the Shareholder Representative on behalf of each Sky Shareholder extent (and only to the extent) and with respect to those matters (and only those matters) specified in such written consent; and (ii) the ▇▇▇▇ Indemnitees may at any time with respect to any matters set forth matter direct any instruction or request directly to any Shareholder in its capacity as such, and such instruction or request shall constitute the written consent of ▇▇▇▇ with respect to such matter for purposes of Section 8.3(b)(i). Any written consent delivered pursuant to this AgreementSection 8.3(b) may be withdrawn at any time, and upon any such withdrawal the Merger Noteprovisions of Section 8.3(a) shall apply fully as though no written consent had been delivered (subject to the ▇▇▇▇’▇ continued right to deliver a written consent pursuant to this Section 8.3(b), including with respect to any matter that was the Guaranty and the Security Agreementsubject of a previous written consent).
Appears in 1 contract
Shareholder Representative. For purposes (a) By virtue of the adoption of this Agreement and as set forth in the Letters of Transmittal and the Contribution Agreement, the Sky Shareholders hereby designate M▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and Newport are hereby authorized, directed and appointed to serve act as the sole and exclusive representative agents, attorneys-in-fact and representatives of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term each a “Shareholder Representative” as used herein shall be deemed to include any successor and, collectively the “Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as agent and attorney-in-fact for and on behalf Representatives”), with full power of the Sky Shareholders substitution with respect to all matters under this Agreement and Escrow Agreement and the performance of his or her duties transactions contemplated hereby and thereby. The Company has designated the Shareholder Representatives as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality representatives of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions Shareholders for purposes of this Agreement and the documents to be executed Escrow Agreement, and delivered approval of this Agreement and the Merger by such holders shall constitute ratification and approval of such designation on the terms set forth herein. All decisions, actions, consents, and instructions by the Shareholder Representatives with respect to this Agreement and the Escrow Agreement shall be absolutely and irrevocably binding upon all of the Shareholders in connection herewith, including with respect to their interests as shareholders under this Agreement and the Merger Note, Guaranty and Security Escrow Agreement, (ii) execute and deliver and receive deliveries of all agreementsno such Shareholder shall have the right to object to, certificatesdissent from, statementsprotest or otherwise contest the same. The Shareholder Representatives shall act in unanimity with respect to any decision, noticesaction, approvals, extensions, waivers, undertakings, amendments, and other documents required consent or permitted to be given in connection with the consummation of the transactions instruction contemplated by this Agreement and in all communications with Buyer and Merger Sub, and Buyer and Merger Sub shall be entitled to rely on any such decision, action, consent or instruction as being the decision, action, consent or instruction of the Shareholders. Buyer and Merger NoteSub are hereby relieved from any liability to any Person for acts done by them in accordance with any such decision, Guaranty act, consent, or instruction. By way of amplification and Security Agreement (including executing this Agreementnot limitation, as Shareholder Representatives, the Shareholder Representatives shall be authorized and empowered, as agents of and on behalf of all Shareholders (only with respect to their interests as Shareholders) (i) to give and receive notices and communications as provided herein, (ii) to receive certain distributions of the Final Merger Note, the Guaranty Consideration and the Security AgreementChina Joint Venture Dividend for the benefit of the Shareholders, (iii) receive service of process in connection with to object to any claims under this Agreement, the Merger Note, the Guaranty or the Security AgreementBuyer Indemnification Claims, (iv) to agree to, negotiate, enter into settlements settlements, and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims or Losses, (v) to resolve any other disputes under this Agreement or the Escrow Agreement, (vi) to grant any waiver, consent or approval on behalf of the Shareholders under this Agreement and the Escrow Agreement (except for any consent or approval of the Shareholders of the Merger, the Merger Agreement and the transactions contemplated hereby), (vii) to receive service of process on behalf of each shareholder of the Company in connection with any claims against such claimsshareholder arising under or in connection with this Agreement, any document or instrument provided for hereby or any of the transactions contemplated hereby or thereby, (ix) to appoint, in its sole discretion, one or more successor Shareholder Representatives, and (x) to take all other actions that are either (1) necessary or appropriate in the judgment of the Shareholder Representative Representatives for the accomplishment of the foregoing, foregoing or (v2) give and receive notices and communications, (vi) object specifically mandated by the terms of this Agreement. Notices or communications to such deliveries, (viii) distribute the proceeds or from both of the Merger Note Shareholder Representatives shall constitute notice to or from the Shareholders.
(b) Each of the Shareholder Representatives hereby accepts the foregoing appointment and agrees to serve as a Shareholder Representative, subject to the Security Agreement provisions hereof, for the period of time from and after the date hereof without compensation except for the reimbursement or payment from the Shareholders (if applicableother than holders of Dissenting Shares) of all fees and expenses incurred by the Shareholder Representatives in performing his or its duties hereunder (including legal fees and expenses related thereto) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate indemnification in the judgment favor of the Shareholder Representative on behalf Representatives, in each case pro rata in accordance with the portion of the Sky Shareholders Final Merger Consideration each such shareholder would otherwise have been entitled to receive by virtue of the ownership of outstanding Shares immediately before the Effective Time (each such shareholder’s pro rata interest, a “Pro-Rata Share”). The Company and the Shareholder Representatives will, at least two (2) days prior to the Closing Date, direct, by joint written notice to Buyer, that on the Closing Date an amount equal to TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000) (the “Shareholder Representatives’ Holdback”), shall be paid directly by the Surviving Corporation to the Shareholder Representatives as designated in such notice, as a fund for the fees and expenses of the Shareholder Representatives incurred in connection with this Agreement, the Merger NoteEscrow Agreement and the Indemnity Agreement (the “Shareholder Representatives’ Holdback Account”), with any balance of the Shareholder Representatives’ Holdback Account not used for such purposes (as determined by the Shareholder Representatives in good faith) to be paid by the Shareholder Representatives to the Shareholders in accordance with their respective Pro-Rata Share. The Shareholders shall not receive interest or other earnings on the Shareholder Representatives’ Holdback and, by virtue of the adoption of this Agreement and as set forth in the Letters of Transmittal, irrevocably transfer and assign to the Shareholder Representatives any ownership right that they may have in any interest that may accrue on funds held in the Shareholder Representatives’ Holdback Account. To the extent that the Shareholder Representatives’ Holdback does not sufficiently cover the fees and expenses of the Shareholder Representatives incurred in connection with this Agreement, the Guaranty Escrow Agreement and the Security Indemnity Agreement, such shortfall shall be paid in accordance with the Contribution Agreement.
(bc) The Shareholder Representative shall have no duties In dealing with this Agreement and any notice, instrument, agreement or responsibilities except those expressly set forth hereindocument relating thereto, and no implied covenants, functions, responsibilities, duties, obligations in exercising or liabilities on behalf failing to exercise all or any of any Sky Shareholder shall otherwise exist against the powers conferred upon the Shareholder Representative. The Representatives hereunder or thereunder, (i) the Shareholder Representative Representatives and his or its agents, counsel, accountants and other representatives shall not be liable assume any, and shall not incur any, responsibility or liability whatsoever to any Sky Shareholder relating to the performance shareholder of the Shareholder Representative’s duties under this Agreement for any errors in judgmentCompany, negligence, oversight, breach of duty or otherwise except to the extent it is finally such actions shall have been determined in by a court of competent jurisdiction to have constituted willful misconduct or actual or intentional fraud, and shall be entitled to assume that all actions, decisions and determinations are fully authorized by clear each and convincing evidence every one of the Shareholders, (ii) the Shareholder Representatives shall be entitled to rely in good faith on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, (iii) the Shareholder Representatives shall be entitled to rely on any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder or under the Escrow Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof, (iv) the Shareholder Representatives may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the actions taken Person purporting to give receipt or not taken by the Shareholder Representative constituted actual fraud advice or were taken make any statement or not taken in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred execute any document in connection with any actionthe provisions hereof has been duly authorized to do so, suit, proceeding or claim to which and (v) the Shareholder Representative is made a party by reason of the fact Representatives may conclusively presume that the Shareholder Representative was acting as undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct the Shareholder Representative pursuant Representatives on behalf of that party unless written notice to this Agreement; provided, however, that the contrary is delivered to the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined Representatives. Except in cases where a court of competent jurisdiction by clear has made such a finding, the Shareholders shall on a pro rata basis (based on each such shareholder’s Pro-Rata Share) indemnify and convincing evidence that the actions taken or not taken by hold harmless the Shareholder Representative constituted actual fraud Representatives from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with his or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by its activities as the Shareholder Representative to be genuine and to have been furnished by Representatives under this Agreement, the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Escrow Agreement or the performance the Shareholder Representative’s duties hereunder or otherwise.
(cd) Incumaker The grant of authority provided for in this Section 2.12 is coupled with an interest and is irrevocable and is being granted, in part, as an inducement to Buyer and Merger Sub to enter into this Agreement and the Escrow Agreement, and shall be entitled irrevocable and survive the dissolution, liquidation or bankruptcy of the Company or the death, incompetency, liquidation or bankruptcy of any shareholder of the Company, shall be binding on any successor thereto and shall survive the assignment by any shareholder of the Company of the whole or any portion of his or its interest in any payment due to rely upon any actions taken by it under this Agreement or the Shareholder Representative as Escrow Agreement or in the duly authorized action Escrow Fund. The appointment of the Shareholder Representative on behalf Representatives as each shareholder’s attorneys-in-fact revokes any power of each Sky attorney heretofore granted that authorized any other person or persons to represent such shareholder with regard to this Agreement and the Escrow Agreement.
(e) In connection with the performance of his or its obligations hereunder, the Shareholder Representatives shall have the right, acting together, at any time and from time to time to select and engage, at the cost and expense of the Shareholders (as contemplated by Section 2.12(b)), attorneys, accountants, investment bankers, advisors, consultants, and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as he or it may deem necessary or desirable and incur other out-of-pocket expenses related to performing his or its services hereunder. Except for reimbursement of out-of-pocket expenses, the Shareholder Representatives shall receive no fees for their services under this Agreement. The Shareholder Representatives may act pursuant to the advice of counsel with respect to any matters set forth matter relating to this Agreement or the Escrow Agreement and shall not be liable for any action taken or omitted by it in good faith in accordance with such advice.
(f) Buyer hereby agrees that the Shareholder Representatives shall not, in their capacities as such, have any liability to Buyer or any of its Affiliates whatsoever with respect to their actions, decisions or determinations. The Shareholder Representatives hereby agree that Buyer has no liability to any Person with respect to the actions, decisions or determinations of the Shareholder Representatives, in their capacity as such.
(g) All of the immunities and powers granted to the Shareholder Representatives under this Agreement with respect to this Agreement and the Escrow Agreement shall survive the Closing and/or any termination of this Agreement, except that such powers (but not immunities) shall terminate upon termination of this Agreement.
(h) In connection with his or its appointment as a Shareholder Representative hereunder, each of ▇▇▇▇▇▇▇ and Newport hereby represents and warrants to Buyer (only with respect to themselves) that he or it has all requisite power and authority to execute and deliver this Agreement and each of the Merger NoteAncillary Agreements to which he or it will be a party, to perform his or its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Newport of this Agreement and each of the Ancillary Agreements to which it will be a party, the Guaranty performance by Newport of its obligations hereunder and thereunder and the Security Agreementconsummation by Newport of the transactions contemplated hereby have been duly and validly authorized by all requisite action on the part of Newport.
Appears in 1 contract
Sources: Merger Agreement (Nn Inc)
Shareholder Representative. For purposes of this Agreement, the Sky Shareholders hereby designate M▇(a) The Company and Shareholder Representative represent to Acquiror that each Shareholder has irrevocably constituted and appointed ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as such Shareholder’s attorney-in-fact and agent in connection with the execution and performance of its duties under this Agreement. This power is irrevocable and coupled with an interest, and shall not be affected by the death, incapacity, illness, dissolution or other inability to serve act of such Shareholder.
(b) The Company and Shareholder Representative represent to Acquiror that each Shareholder has irrevocably granted the Shareholder Representative full power and authority: (i) to execute and deliver, on behalf of such Shareholder, and to accept delivery of, on behalf of such Shareholder, the Ancillary Agreements and such other documents as the sole and exclusive representative of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action may be deemed by the Shareholder Representative, including ancillary agreements in its sole discretion, to be appropriate to complete the Transactions; (ii) to endorse and to deliver on behalf of such as Shareholder, transfer instruments representing the Merger Noteshares of Company Common Stock to be exchanged by such Shareholder at the Closing; (iii) to acknowledge receipt at the Closing of the consideration payable to such Shareholder at the Closing, Guaranty and Security to designate the manner of payment of such consideration; (iv) to (A) negotiate and compromise, on behalf of such Shareholder, any dispute that may arise under, and to exercise or refrain from exercising any remedies available under, this Agreement; providedand (B) execute, howeveron behalf of such Shareholder, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unablesettlement agreement, due release or other document with respect to incapacity such dispute or otherwiseremedy; (v) to give or agree to, to serve as Shareholder Representative on behalf of such Shareholder, any and all consents, waivers, amendments or resigns as modifications, deemed by the Shareholder Representative, then [Name] shall serve in its sole discretion, to be necessary or appropriate, under this Agreement, and, in each case, to execute and deliver any documents that may be necessary or appropriate in connection therewith; (vi) to enforce, on behalf of such Shareholder, any claim against Acquiror arising under this Agreement; (vii) to engage attorneys, accountants and agents at the expense of such Shareholder; (viii) to agree, on behalf of such Shareholder, to amend this Agreement (other than this Section 10.02) or any of the instruments to be delivered to Acquiror by such Shareholder pursuant to this Agreement; and (ix) to give such instructions and to take such action or refrain from taking such action, on behalf of such Shareholder, as successor the Shareholder Representative. Each successor Shareholder RepresentativeRepresentative deems, if required in its sole discretion, necessary or appropriate to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of carry out the provisions of this Agreement.
(c) The Company and Shareholder Representative represent to Acquiror that each Shareholder has agreed to the following: (i) in all matters in which action by the Shareholder Representative is required or permitted, the Shareholder Representative is authorized to act on behalf of such Shareholder, notwithstanding any dispute or disagreement between such Shareholder and the Shareholder Representative, and Acquiror will be entitled to rely on any and all action taken by the Shareholder Representative under this Agreement applicable without any liability to, or obligation to inquire of, any Shareholder, notwithstanding any knowledge on the part of Acquiror of any such dispute or disagreement; (ii) notice to the Shareholder Representative. Each successor , delivered in the manner provided in Section 10.01, shall also be deemed to be notice to such Shareholder Representative shall have all for purposes of this Agreement; and (iii) the power and authority of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, as described in this Agreement, will continue in force until all rights and the term “obligations of such Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representativeunder this Agreement will have terminated, expired or been fully performed.
(ad) The Company and Shareholder Representative is hereby constituted and appointed as agent and attorney-in-fact for and on behalf of the Sky Shareholders with respect represent to the performance of his or her duties as the Acquiror that each Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholderhas agreed that, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of notwithstanding the foregoing, at the request of Acquiror, such Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to shall take all actions necessary or appropriate in to complete the judgment Transactions (including, with respect to such Shareholder, delivery of the Shareholder Representative for the accomplishment shares of the foregoing, (v) give Company Common Stock and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds acceptance of the Merger Note and the Security Agreement (if applicableConsideration therefor) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative individually on behalf of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative shall have no duties or responsibilities except those expressly set forth hereinsuch Shareholder’s own behalf, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf to deliver any other documents required of any Sky such Shareholder shall otherwise exist against the Shareholder Representative. The Shareholder Representative shall not be liable to any Sky Shareholder relating pursuant to the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwiseterms hereof.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative as the duly authorized action of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security Agreement.
Appears in 1 contract
Sources: Business Combination Agreement (Fintech Ecosystem Development Corp.)
Shareholder Representative. For purposes (a) By virtue of the execution and delivery of a Joinder Agreement, and the adoption of this AgreementAgreement and approval of the Mergers by the Shareholders, each of the Sky Shareholders hereby designate MEquityholders shall be deemed to have agreed to appoint ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve ▇, an individual, as the sole and exclusive representative of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representativeits, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity his or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as her agent and attorney-in-fact fact, as the Shareholder Representative for and on behalf of the Sky Shareholders with respect Indemnifying Parties to the performance of his or her duties as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver give and receive deliveries notices and communications in respect of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any indemnification claims under this AgreementAgreement to be recovered against the Holdback Fund, to authorize payment to any Indemnified Party from the Merger NoteHoldback Fund in satisfaction of any indemnification claims hereunder by any Indemnified Party, the Guaranty or the Security Agreementto object to such payments, (iv) to agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to any such indemnification 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 such indemnification claim by any Indemnified Party hereunder against any Indemnifying Party or by any such Indemnifying Party against any Indemnified Party or any dispute between any Indemnified Party and any such Indemnifying Party, in each case relating to this Agreement or the Transactions, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, foregoing or (vii) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute specifically mandated by the proceeds terms of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky Shareholder shall otherwise exist against the Shareholder Representative. The Shareholder Representative shall not Such agency may be liable to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken changed by the Shareholder Representative constituted actual fraud or were taken or Shareholders from time to time upon not taken in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim less than thirty (30) days prior written notice to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this AgreementParent; provided, however, that the Shareholder Representative shall may not be entitled removed unless holders of a two- thirds interest of the Holdback Fund agree to indemnification hereunder such removal and to the extent it is finally determined identity of the substituted agent. Notwithstanding the foregoing, in the event of a court resignation of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken other vacancy in the position of Shareholder Representative, such vacancy may be filled by the holders of a majority in interest of the Holdback Fund. No bond shall be required of the Shareholder Representative. Notices or not taken communications to or from the Shareholder Representative after the Closing shall constitute notice to or from the Indemnifying Parties.
(b) A decision, act, consent or instruction of the Shareholder Representative, including an amendment of any provision of this Agreement pursuant to Section 10.2 hereof, shall constitute a decision of the Indemnifying Parties and shall be final, binding and conclusive upon the Indemnifying Parties, and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Indemnifying Parties. Parent is hereby relieved from any liability to any person for any acts done by Parent in bad faith. accordance with such decision, act, consent or instruction of the Shareholder Representative.
(c) The Shareholder Representative shall not be held harmless liable for any act done or omitted hereunder as Shareholder Representative while acting in acting upon any notice, statement or certificate believed by good faith. The Indemnifying Parties shall indemnify the Shareholder Representative to be genuine and to have been furnished by hold the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (harmless against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses arising out of or in his capacity as such) shall not be liable to Incumaker connection with the acceptance or the Surviving Corporation by reason administration of this Agreement or the performance the Shareholder Representative’s duties hereunder or under any agreements ancillary hereto, including the fees and expenses of any legal counsel or experts retained by the Shareholder Representative (“Shareholder Representative Expenses”) in each case as such Shareholder Representative Expense 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 Shareholder Representative, the Shareholder Representative will reimburse the Shareholders the amount of such indemnified Shareholder Representative Expense to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholder Representative by the Indemnifying Parties, any such Shareholder Representative Expenses may be recovered by the Shareholder Representative from (i) the funds in the Expense Fund and (ii) the amounts in the Holdback Fund at such time as remaining amounts would otherwise then be distributable to the Indemnifying Parties (which, for the avoidance of doubt, shall not include any amounts that remain held in the Holdback Fund subject to the resolution of any pending indemnification claims); provided, that while this section allows the Shareholder Representative to be paid from the Expense Fund and the Holdback Fund, this does not relieve the Indemnifying Parties from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Shareholder Representative from seeking any remedies available to it at law or otherwise.
(c) Incumaker . In no event will the Shareholder Representative be required to advance its own funds on behalf of the Indemnifying Parties or otherwise. The Indemnifying Parties acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Shareholder Representative or the termination of this Agreement. The Shareholder Representative shall be entitled to use the Expense Fund in order to fund all Shareholder Representative Expenses. Following the termination of the Holdback Fund, the resolution of all Unresolved Claims and the satisfaction of all claims made by Indemnified Parties for Losses hereunder, the Shareholder Representative shall have the right to recover Shareholder Representative Expenses incurred in excess of the amounts in the Expense Fund and not previously recovered directly from the Indemnifying Parties from the Holdback Fund, prior to any distribution to the Indemnifying Parties, and prior to any such distribution, shall deliver to Parent a certificate setting forth the Shareholder Representative Expenses actually incurred and not previously recovered. For the avoidance of doubt, while this section allows the Shareholder Representative to be paid from the Holdback Fund, this Section 8.6(c) shall not limit the obligation of any Indemnifying Party to promptly pay such Shareholder Representative Expenses as they are incurred, to the extent the Expense Fund is insufficient or unavailable. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 10.2 or Section 10.3, shall constitute a decision of the Indemnifying Parties and shall be final, conclusive and binding upon the Indemnifying Parties; and Parent may rely upon any actions taken by such decision, act, consent or instruction of the Shareholder Representative as being the duly authorized action decision, act, consent or instruction of the Indemnifying Parties. Parent is hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security AgreementRepresentative.
Appears in 1 contract
Shareholder Representative. For purposes By virtue of their approval of this Agreement, the Sky Shareholders hereby designate M▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as the sole and exclusive representative shareholders of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall Target Corporation will be deemed to include any successor Shareholder Representative.
(a) The have irrevocably constituted and appointed, effective as of the Closing, the Shareholder Representative is hereby constituted and appointed as agent the representative and attorney-in-fact for and on behalf of the Sky Shareholders with respect shareholders, and to the performance of his or her duties as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received taking by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power any and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement all actions and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries making of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents any decisions required or permitted to be given in connection with taken by her under this Agreement or the consummation Escrow Agreement, including, without limitation, the exercise of the transactions contemplated by this Agreement and power to (i) execute the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Escrow Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (ivii) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claimsany indemnification claim, (iii) resolve any indemnification claim, including claims relating to *** and to (iv) take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give foregoing and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds all of the Merger Note other terms, conditions and limitations of this Agreement and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of Escrow Agreement. Accordingly, the Shareholder Representative has unlimited authority and power to act on behalf of each shareholder of Target Corporation with respect to this Agreement and the Sky Shareholders Escrow Agreement and the disposition, settlement or other handling of all indemnification claims, rights or obligations arising from and taken pursuant to this Agreement. The shareholders of Target Corporation will be bound by all actions taken by the Shareholder Representative in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative Acquiring Corporation and Newco shall have no duties be entitled to rely on any action or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf decision of any Sky Shareholder shall otherwise exist against the Shareholder Representative. The Shareholder Representative shall not be liable will incur no liability with respect to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions action taken or not taken suffered by the Shareholder Representative constituted actual fraud or were taken or not taken her in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting reliance upon any notice, direction, instruction, consent, statement or certificate other document believed by the Shareholder Representative her to be genuine and to have been furnished signed by the appropriate proper person (and in acting shall have no responsibility to determine the authenticity thereof), nor for any other action or refusing to act in good faith on any matterinaction, except her own willful misconduct or bad faith. The In all questions arising under this Agreement or the Escrow Agreement, the Shareholder Representative (in his capacity as such) shall may rely on the advice of counsel, and the Shareholder Representative will not be liable to Incumaker anyone for anything done, omitted or suffered in good faith by the Surviving Corporation Shareholder Representative based on such advice. Except as expressly provided herein, *** Indicates portions of this exhibit that have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment. the Shareholder Representative will not be required to take any action involving any expense, other than as required by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative as the duly authorized action of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security Escrow Agreement.
Appears in 1 contract
Shareholder Representative. For purposes of this Agreement(a) Each Shareholder irrevocably authorizes, the Sky Shareholders hereby designate M▇▇directs and appoints ▇▇▇▇ ▇▇▇▇▇▇▇▇ to serve act as the sole and exclusive representative of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representativeagent, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as agent and attorney-in-fact and representative of such Person and such Person's heirs, representatives and successors to (i) take any and all actions (including without limitation executing and delivering any documents), incurring any costs and expenses for and on behalf the account of the Sky Shareholders and making any and all determinations which may be required or permitted to be taken by the Shareholders in connection with respect this Article X or the Escrow Agreement; and (ii) exercise such rights, power and authority as are incidental to the performance foregoing. Any actions, exercises of his rights, power or her duties as the Shareholder Representative. This power of attorney authority and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision decisions or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received determinations made by the Shareholder Representative concerning shall be absolutely and irrevocably binding on each Shareholder as if each such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person's individual capacity.
(b) With respect to the matters covered by or related to this Article X and the Escrow Agreement, (i) each Shareholder irrevocably relinquishes its right to act independently and other than through the Shareholder Representative with respect to such subject matter (except with respect to appointment of a successor Representative), and (ii) no Shareholder shall have any right to institute any suit, action or proceeding against Atcom, CAIS, the Company, the Surviving Corporation or the Escrow Agent with respect to any such matter, any such right being irrevocably and exclusively delegated to the Shareholder Representative. Without limiting the generality of the foregoing, any notice hereunder delivered to CAIS or an Indemnitee by a Shareholder other than through the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky Shareholder shall otherwise exist against the Shareholder Representative. The Shareholder Representative shall not be liable to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be indemnified of no effect, and held harmless each notice delivered by the Sky Shareholders against all losses, including costs of defense, paid CAIS or incurred in connection with any action, suit, proceeding or claim other Indemnitee to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative shall not be entitled effective as against each Shareholder; provided, that CAIS and the other -------- Indemnitees may elect at their sole discretion to indemnification hereunder give effect to the extent it is finally determined in a court of competent jurisdiction any notice delivered by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwiseShareholder.
(c) Incumaker shall be entitled to rely upon any actions taken by the The Shareholder Representative as may resign at any time upon thirty (30) days notice by submitting a written resignation to CAIS, with copies to all other Shareholders at their addresses on the duly authorized action stock books of Atcom. In the event of the death, physical or mental incapacity or resignation of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this AgreementRepresentative, the Merger Note, the Guaranty Shareholders shall promptly (and the Security Agreementin any event within thirty (30) days of notice of such event) appoint a successor Shareholder Representative.
Appears in 1 contract
Shareholder Representative. For purposes (a) In order to efficiently administer the determination of any Indemnity Claims under this Agreement, the Sky Shareholders hereby designate M▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as Shareholder Representative shall be the sole and exclusive representative of the Socati Converted Shareholders (the “Shareholder Representative”) with in respect of their indemnity rights and obligations under this Agreement. The Parties shall be entitled to those provisions of this Agreement that contemplate action by rely on the Shareholder RepresentativeRepresentative as having the authority to make all decisions and take all actions relating to the respective rights, obligations and remedies of the Socati Converted Shareholders under this Agreement, and deal exclusively with the Shareholder Representative in respect of all such matters, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at to deliver or receive any time is unable, due to incapacity Notice of Claim or otherwiseother notices or instructions in respect of an Indemnity Claim, to serve as Shareholder Representative or resigns as Shareholder Representativeinvestigate, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representativenegotiate, if required settle, pursue and defend any Indemnity Claims, to serve, shall sign an acknowledgment give releases and discharges in writing agreeing to perform and be bound by all respect of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as agent and attorney-in-fact for and Indemnity Claim on behalf of the Sky Socati Converted Shareholders with respect to the performance of his or her duties as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all other actions that are either (i) necessary or appropriate in the judgment judgement of the Shareholder Representative for the accomplishment of the foregoing, or (vii) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders in connection with specifically mandated by this Agreement, the Merger Note, the Guaranty and the Security Agreementagreement.
(b) All decisions, instructions and actions to be taken by the Socati Converted Shareholders, or any one of them, under this Agreement shall be deemed to be taken by such Socati Converted Shareholders if such decisions, instructions or actions are taken by the Shareholder Representative, and such decisions, consents, instructions or actions shall be final, binding and conclusive upon such Socati Converted Shareholders. Yooma and Subco may rely upon any such decision, consent, instruction or action by the Shareholder Representative as being the decision, consent, instruction or action of the Socati Converted Shareholders.
(c) The Shareholder Representative shall have will incur no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf liability of any Sky kind with respect to any action or omission by the Shareholder shall otherwise exist against Representative with respect to its services under this Agreement and any Ancillary Agreements, except in the event of liability resulting from the Shareholder Representative’s gross negligence, bad faith, fraud or wilful misconduct. The Shareholder Representative shall not be liable for any action or omission pursuant to any Sky the advice of its legal counsel. The Socati Converted Shareholders shall jointly and severally indemnify, defend and hold harmless the Shareholder Representative from and against all claims, liabilities, losses, damages, costs, penalties, fines, forfeitures and expenses (including reasonable expenses relating to the performance legal counsel, experts and their staff) arising out of or in connection with the Shareholder Representative’s duties role under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to (the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder “Representative constituted actual fraud or were taken or not taken in bad faith. Losses”).
(d) The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with entitled recover any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason Losses out of the fact Indemnity Shares that would otherwise be released to the Shareholder Representative was acting as Socati Converted Shareholders at the Shareholder Representative pursuant to this Agreement; providedend of the Indemnity Period, however, that and Yooma and the Shareholder Representative shall not be entitled to indemnification hereunder to instruct the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwiseEscrow Agent accordingly.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative as the duly authorized action of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security Agreement.
Appears in 1 contract
Sources: Merger Agreement
Shareholder Representative. For purposes of this Agreement, the Sky Shareholders hereby designate M▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as the sole and exclusive representative of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The By approving the Merger at a special meeting of Shareholders or by written consent, each Shareholder shall have irrevocably (except as set forth in Section 1.1.1(b)) authorized and appointed the Shareholder Representative is hereby constituted and any replacement representative appointed pursuant to Section 1.1.1(b), with full power of substitution, as agent such Shareholder’s representative and attorney-in-fact and exclusive agent to act for and on behalf of the Sky Shareholders such Shareholder with respect to all matters arising in connection with this Agreement, including full power and authority, exercisable in the performance sole discretion of his or her duties as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall , to: (i) take any action contemplated to be irrevocable and shall not be terminated taken by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision the Shareholders under this Agreement or any other event. The Shareholder Representative shall promptly Operative Document; (ii) negotiate, determine, defend and settle any disputes that may arise under or in connection with this Agreement or any other Operative Document; and (iii) make, execute, acknowledge and deliver to each Sky Shareholder any notice received by releases, assurances, receipts, requests, instructions, notices, agreements, certificates and any other instruments, and generally do any and all things and take any and all actions that the Shareholder Representative concerning may deem necessary or advisable in connection with this AgreementAgreement or any other Operative Document. Without limiting the generality of Notwithstanding the foregoing, the Shareholder Representative has full power and authority, shall have no obligation to act on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assignsthe Shareholders, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders except as expressly provided herein or in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendmentsany other Operative Document, and other documents required or permitted to be given in connection with the consummation for purposes of the transactions contemplated by this Agreement and the Merger Noteclarity, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment there are no obligations of the Shareholder Representative for in any ancillary agreement, schedule, exhibit or the accomplishment of the foregoingDisclosure Schedule. A decision, (v) give and receive notices and communicationsact, (vi) object to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary consent or appropriate in the judgment instruction of the Shareholder Representative on behalf shall constitute a decision of the Sky Shareholders and shall be final, binding and conclusive upon the Shareholders and their successors, and any and all defenses that may be available to any Shareholder to contest, negate or disaffirm the action of the Shareholder Representative taken in connection with good faith under this AgreementAgreement are waived. Parent may rely upon any such decision, act, consent or instruction of the Merger NoteShareholder Representative as being the decision, act, consent or instruction of the Guaranty and the Security AgreementShareholders. No Shareholder Representative shall be deemed a fiduciary of any other Shareholder by reason of such appointment.
(b) The Shareholder Representative shall have no duties or responsibilities except those expressly set forth herein, may be removed by written agreement among Parent and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf a majority in interest of any Sky Shareholder shall otherwise exist against the Shareholder RepresentativeShareholders calculated with reference to each Shareholder’s Pro Rata Share. The Shareholder Representative may resign at any time upon giving thirty (30) day’s prior written notice of such resignation to Parent and each Shareholder but shall not be liable exercise all the powers enumerated in Section 1.1.1(a) until the effective date of such resignation. In the event of such removal or resignation, or upon the death or disability of the Shareholder Representative, a majority in interest of the Shareholders calculated with reference to any Sky each Shareholder’s Pro Rata Share shall promptly agree upon a replacement Shareholder relating to Representative. In the performance event of the Shareholder Representative’s duties under this Agreement for any errors in judgmentresignation, negligenceremoval, oversightdeath or disability, breach if the appointment of duty or otherwise except a replacement Shareholder Representative pursuant to the extent it preceding sentence has not occurred prior to the scheduled expiration of any Survival Period set forth in Section Article 7 or any period in which any Indemnified Party is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by required to provide notice to the Shareholder Representative constituted actual fraud with respect to any Indemnification Claim or were action to be taken or not taken in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any actionthis Agreement, suitthen such relevant period shall be deemed to be extended by the number of calendar days that elapsed between the Shareholder Representative’s resignation, proceeding removal, death or claim disability and the appointment of a replacement Shareholder Representative pursuant to which the preceding sentence.
(c) Neither the Shareholder Representative is made a party by reason of nor its members, managers, directors, officers, contractors, agents and employees (collectively, the fact that the “Shareholder Representative was acting Group”) shall be liable for any act done or omitted hereunder as the Shareholder Representative pursuant to this Agreement; provided, however, that while acting in good faith. The Shareholders shall indemnify the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear Group and convincing evidence that the actions taken or not taken by defend and hold the Shareholder Representative constituted actual fraud Group harmless against any and all Losses arising out of or were taken in connection with the acceptance or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason administration of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker shall be entitled to rely upon under any actions taken agreements ancillary hereto, including the fees and expenses of any legal counsel or experts retained by the Shareholder Representative and in connection with seeking recovery from insurers (“Shareholder Representative Expenses”) in each case as such Shareholder Representative Expense is suffered or incurred; provided that in the duly authorized action event that any such Shareholder Representative Expense is finally adjudicated to have been directly caused by the bad faith, gross negligence or willful misconduct of the Shareholder Representative, the Shareholder Representative will reimburse the Shareholders the amount of such indemnified Shareholder Representative Expense to the extent attributable to such bad faith, gross negligence or willful misconduct. If not paid directly to the Shareholder Representative by the Shareholders, any such Shareholder Representative Expenses may be recovered by the Shareholder Representative from the Shareholder Representative Fund; provided that while this Section 9.14(c) allows the Shareholder Representative to be paid from the Shareholder Representative Fund, this does not relieve the Shareholders from their obligation to promptly pay such Shareholder Representative Expenses as they are suffered or incurred, nor does it prevent the Shareholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Shareholder Representative be required to advance its own funds or incur any financial liability on behalf of the Shareholders or otherwise. The Shareholders acknowledge and agree that the foregoing indemnities and immunities will survive the resignation or removal of the Shareholder Representative on behalf and the Closing and/or the termination of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security Agreement.
Appears in 1 contract
Shareholder Representative. (a) For purposes of this Agreement and the Escrow Agreement, the Sky Shareholders Company hereby designate M▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as appoints, and each Company Shareholder and Optionholder shall, without any further action on the sole and exclusive representative part of any such Company Shareholder or Optionholder, be deemed (by virtue of the Shareholders (the “Shareholder Representative”) with respect to those provisions adoption and approval of this Agreement that contemplate action by and approval of the Merger and/or acceptance of any consideration pursuant to this Agreement) to have consented to the appointment of Shareholder Representative, including ancillary agreements such Representative Services LLC as the Merger Note, Guaranty attorney‑in‑fact and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as agent and attorney-in-fact for and on behalf of each such Company Shareholder and Optionholder, and the Sky Shareholders with respect to the performance of his or her duties as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received taking by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power any and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement all actions and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries making of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents any decisions required or permitted to be given in connection with taken by the consummation of the transactions Shareholder Representative under or contemplated by this Agreement and the Merger Noteother documents contemplated hereby, Guaranty and Security Agreement including the exercise of the power to (including executing i) execute this Agreement, the Merger NoteEscrow Agreement and other agreements, documents and certificates pursuant to such agreements, including all amendments to such agreements, and take all actions required or permitted to be taken under such agreements, (ii) authorize delivery to Parent of all or any portion of the Guaranty and Escrow Fund from the Security Escrow Account, in satisfaction of indemnification or other claims contemplated by this Agreement or as provided in the Escrow Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such indemnification or other claims, (iv) resolve any indemnification or other claims, (v) receive and forward notices and communications pursuant to this Agreement and the Escrow Agreement, and (vi) take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give foregoing and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds all of the Merger Note other terms, conditions and limitations of this Agreement, the Security Escrow Agreement (if applicable) and any earnings other agreements, documents and proceeds thereon certificates thereto. Any and (ix) take all such actions necessary or appropriate in the judgment of taken by the Shareholder Representative on behalf of the Sky Company Shareholders in connection and Optionholders (or former Company Shareholders and Optionholders) shall be deemed to be facts ascertainable outside this Agreement and shall be binding on all of the Company Shareholders and Optionholders. The Company Shareholders and Optionholders shall cooperate with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative shall have no and any accountants, attorneys or other agents whom the Shareholder Representative may retain to assist in carrying out Shareholder Representative’s duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky hereunder. Shareholder shall otherwise exist against Representative Services LLC hereby accepts its appointment as the Shareholder Representative. The Shareholder Representative shall not be liable is authorized by each Company Shareholder and Optionholder by virtue of the adoption and approval of this Agreement and approval of the Merger to act on its behalf as required hereunder and under the Escrow Agreement. The Shareholder Representative may resign at any Sky time, with thirty (30) days prior written notice to Parent and the Escrow Agent, upon the terms set forth in the engagement agreement between the Company and the Shareholder relating Representative. At any time during the term of the Escrow Agreement, Company Shareholders holding (or after the Effective Time, former Company Shareholders who held immediately prior to the performance Effective Time) a majority of the votes entitled to be cast by the Junior Common Shares at the Shareholders’ Meeting can appoint a new Shareholder Representative (after reasonably consulting with Parent regarding the proposed new Shareholder Representative) by sending notice and a copy of the duly executed written consent appointing such new Shareholder Representative to Parent and the Escrow Agent. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Parent and the Escrow Agent. The parties acknowledge that the Shareholder Representative’s duties obligations under this Agreement for any errors in judgmentArticle VIII are solely as a representative of the Company Shareholders and Optionholders under this Article VIII.
(b) All decisions, negligenceactions, oversight, breach consents and instructions of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud shall be final and binding upon all the Company Shareholders and Optionholders and no Company Shareholder or were taken Optionholder shall have any right to object, dissent, protest or otherwise contest the same, except for fraud, bad faith or willful misconduct. Parent shall be able to rely conclusively on the instructions and decisions of the Shareholder Representative and shall be required to only file and negotiate any claims or disputes with the Shareholder Representative and not taken in bad faithwith each Company Shareholder and Optionholder. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party not have by reason of the fact that the this Agreement a fiduciary relationship in respect of any Company Shareholder Representative was acting as the or Optionholder, except in respect of amounts actually received on behalf of such Company Shareholder Representative pursuant to this Agreement; provided, however, that the or Optionholder. The Shareholder Representative shall not be entitled required to indemnification hereunder to make any inquiry concerning either the extent it is finally determined in a court performance or observance of competent jurisdiction by clear and convincing evidence that any of the actions taken terms, provisions or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faithconditions of this Agreement. The Shareholder Representative shall not have any liability to any Company Shareholder or Optionholder in connection with the Shareholder Representative’s services pursuant to this Agreement while acting in good faith, and any act done or omitted pursuant to the advice of legal counsel, public accountants or other independent experts reasonably relied upon in good faith by the Shareholder Representative shall be held conclusive evidence of such good faith. The Company Shareholders and Optionholders shall severally (based on such Company Shareholder’s or Optionholder’s Pro Rata Portion) indemnify the Shareholder Representative and hold it harmless against any loss, liability, damage, claim, penalty, fine, forfeiture, action, fee cost or expense (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Shareholder Representative Expenses”) arising out of or in acting upon connection with the acceptance or administration of its duties hereunder, in each case as such Shareholder Representative Expense is suffered or incurred; provided, that in the event that any noticesuch Shareholder Representative Expense is finally adjudicated to have been directly caused by the gross negligence or bad faith of the Shareholder Representative, statement the Shareholder Representative will reimburse the Company Shareholders and Optionholders the amount of such indemnified Shareholder Representative Expense to the extent attributable to such gross negligence or certificate believed bad faith. If not paid directly to the Shareholder Representative by the Company Shareholders and Optionholders, any such Shareholder Representative Expenses may be recovered by the Shareholder Representative from (i) the funds in the Shareholder Representative Fund and (ii) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Company Shareholders and Optionholders; provided, that in no event may any Shareholder Representative Expenses be recovered by the Shareholder Representative from any portion of the Escrow Fund that has not been disbursed by the Escrow Agent for distribution to the Company Shareholders and Optionholders in accordance with the Escrow Agreement; provided, further, that while this section allows the Shareholder Representative to be genuine paid from Shareholder Representative Fund and the Escrow Fund, this does not relieve the Company Shareholders and Optionholders from their obligation to have been furnished by promptly pay such Shareholder Representative Expenses as they are suffered or incurred, nor does it prevent the appropriate person Shareholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Shareholder Representative be required to advance its own funds on behalf of the Company Shareholders and in acting Optionholders or refusing to act in good faith on any matterotherwise. The Company Shareholders and Optionholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason termination of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwiseAgreement.
(c) Incumaker shall be entitled The Shareholder Representative hereby represents and warrants to rely Parent that (i) it is a limited liability company validly existing and in good standing under the Laws of the State of Colorado, (ii) it has all requisite limited liability company power and authority to execute and deliver this Agreement and the Escrow Agreement and to perform its obligations hereunder and thereunder, (iii) the execution and delivery of this Agreement by it has been, and the execution and delivery of the Escrow Agreement by it at Closing will be, duly authorized by all necessary limited liability company action, (iv) this Agreement has been (and upon any actions taken the Shareholder Representative’s execution thereof the Escrow Agreement will be) duly executed and delivered by it, and assuming the due authorization, execution and delivery hereof by the Shareholder Representative as other parties hereto or thereto, constitutes (or will constitute once executed) the duly authorized action legal, valid and binding obligations of the Shareholder Representative on behalf Representative, enforceable against it in accordance with their terms, except as enforcement hereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws relating to or affecting the enforcement of each Sky Shareholder with respect to any matters set forth in this Agreementcreditors’ rights generally, the Merger Notelaws of agency, and legal principles of general applicability governing the Guaranty and the Security Agreementavailability of equitable remedies (whether considered in a proceeding in equity or at law or under applicable legal codes).
Appears in 1 contract
Shareholder Representative. For purposes To facilitate the consummation of the transactions contemplated by this Agreement, from and after the Sky Closing, each of the Selling Shareholders (and their successors and assigns) hereby designate Mirrevocably consent to the appointment of, and do hereby appoint and empower, each of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ to serve as the sole and exclusive representative of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ at any time is unable▇▇▇▇, due to incapacity or otherwise, to serve ▇▇. (and each of them does hereby accept such appointment) as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as agent and each such Selling Shareholder's attorney-in-fact (with full power of substitution) for carrying out the transactions contemplated hereby and as the sole and exclusive representative (each, a "SHAREHOLDER REPRESENTATIVE") of all of them (and their successors and assigns) to make all decisions and determinations on behalf of all of them (and their successors and assigns) that the Sky Shareholders with respect Shareholder Representatives may deem necessary or appropriate to accomplish the performance intent, and implement the provisions, of his this Agreement, including, without limitations, the execution of the Subscription Agreement or her duties the Option Agreement, as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreementcase may be. Without limiting the generality of the foregoing, the Shareholder Representative has full Representatives shall have the power to agree to any matters with respect to indemnification provided for hereunder. All decisions of the Shareholder Representatives shall be final and authority, binding on behalf all of each Sky Shareholder the Selling Shareholders (and such Sky Shareholder’s their successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky Shareholder shall otherwise exist against the Shareholder Representative). The Shareholder Representative shall not be liable to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear Purchaser (and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be indemnified its successors and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as suchassigns) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker shall be entitled to rely upon upon, without independent investigation, any actions decision or action of a Shareholder Representative and shall be fully protected in connection with any action or inaction taken or omitted to be taken in reliance thereon. The Selling Shareholders (and their permitted successors and assigns) may by the vote of holders holding a majority of shares at any time and from time to time replace the Shareholder Representatives and appoint another Selling Shareholder as a Shareholder Representative. It is a condition to the appointment of any Person as the Shareholder Representative hereunder that such Person confirms in writing to the Purchaser that such Person has accepted such appointment as the Shareholder Representative under the terms of this Article. If a Shareholder Representative is replaced as provided for herein, the newly-appointed Shareholder Representative shall notify the Purchaser in writing of such Person's appointment and appropriate contact information, and the Purchaser (and its successors and assigns) shall be entitled to rely upon, without independent investigation, the identity of the Shareholder Representative as set forth in such written notice. The Selling Shareholders agree, by their execution of this Agreement, that the duly authorized action Shareholder Representatives, in their capacity as such, shall not have any liability to any of the Selling Shareholders for any acts or omissions of the Shareholder Representative on behalf Representatives taken, or omitted to be taken, in connection with performance of the duties of the Shareholder Representatives described herein, and each Sky Selling Shareholder with respect hereby waives and releases any claims against the Shareholder Representatives in such capacity and shall not initiate any lawsuits or other court proceedings, or take similar action, against the Shareholder Representatives, in any case other than for acts or omissions involving wilful misconduct by the Shareholder Representatives. The Selling Shareholders agree to indemnify, defend and hold harmless the Shareholder Representatives from and against any matters set forth in Losses based upon, arising out of or otherwise resulting from any action undertaken pursuant to this AgreementAgreement by the Shareholder Representatives, other than any Losses arising as a result of the Merger Note, gross negligence and malfeasance of the Guaranty and the Security AgreementShareholder Representatives.
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Shareholder Representative. For purposes (a) Shareholder Representative has been duly formed, is validly existing and is in good standing as a limited liability company under the laws of the State of Delaware. The Shareholder Representative has the corporate power and authority to execute, deliver and perform its obligations under this AgreementAgreement and to consummate the transactions contemplated hereby. At all times from the formation of the Shareholder Representative to immediately prior to the Spin-Off, the Sky Shareholders hereby designate M▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as Company will have been the sole and exclusive representative member of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(ab) The Shareholder Representative This Agreement is hereby constituted a valid and appointed as agent and attorney-in-fact for and on behalf legally binding agreement of the Sky Shareholders with respect to the performance of his or her duties as the Shareholder Representative. This power , enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar Laws affecting creditors’ rights generally and to general principles of attorney equity and all authority hereby conferred is granted except to the extent such enforceability may be limited by Laws relating to the safety and shall be irrevocable soundness of insured depository institutions as set forth in 12 U.S.C. Section 1818(b) or the appointment of a conservator by the FDIC.
(c) The execution and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received delivery by the Shareholder Representative concerning of this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement herein and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky Shareholder shall otherwise exist against the Shareholder Representative. The Shareholder Representative shall not be liable to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken compliance by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any actionof the provisions hereof, suitwill not: (i) conflict with or result in a breach of any provision of its Certificate of Formation; (ii) constitute a breach of or result in a default (or give rise to any rights of termination, proceeding cancellation or claim acceleration, or any right to acquire any securities or assets) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, franchise, license, permit, lease, agreement or other instrument or obligation to which the Shareholder Representative is made a party party, or by reason of the fact that which the Shareholder Representative was acting as or any of its properties or assets are bound; (iii) result in the creation or imposition of any Lien on any of the properties or assets of the Shareholder Representative; or (iv) violate any Law applicable to the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court or any of competent jurisdiction by clear and convincing evidence that the actions taken its properties or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwiseassets.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative as the duly authorized action of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security Agreement.
Appears in 1 contract
Shareholder Representative. For purposes By virtue of their approval of this Agreement, the Sky Shareholders hereby designate M▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as the sole and exclusive representative shareholders of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall Target Corporation will be deemed to include any successor Shareholder Representative.
(a) The have irrevocably constituted and appointed, effective as of the Closing, the Shareholder Representative is hereby constituted and appointed as agent the representative and attorney-in-fact for and on behalf of the Sky Shareholders with respect shareholders, and to the performance of his or her duties as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received taking by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power any and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement all actions and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries making of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents any decisions required or permitted to be given in connection with taken by her under this Agreement or the consummation Escrow Agreement, including, without limitation, the exercise of the transactions contemplated by this Agreement and power to (i) execute the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Escrow Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (ivii) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claimsany indemnification claim, (iii) resolve any indemnification claim, including claims relating to the ▇▇▇▇▇▇ Dispute and to (iv) take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give foregoing and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds all of the Merger Note other terms, conditions and limitations of this Agreement and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of Escrow Agreement. Accordingly, the Shareholder Representative has unlimited authority and power to act on behalf of each shareholder of Target Corporation with respect to this Agreement and the Sky Shareholders Escrow Agreement and the disposition, settlement or other handling of all indemnification claims, rights or obligations arising from and taken pursuant to this Agreement. The shareholders of Target Corporation will be bound by all actions taken by the Shareholder Representative in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative Acquiring Corporation and Newco shall have no duties be entitled to rely on any action or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf decision of any Sky Shareholder shall otherwise exist against the Shareholder Representative. The Shareholder Representative shall not be liable will incur no liability with respect to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions action taken or not taken suffered by the Shareholder Representative constituted actual fraud or were taken or not taken her in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting reliance upon any notice, direction, instruction, consent, statement or certificate other document believed by the Shareholder Representative her to be genuine and to have been furnished signed by the appropriate proper person (and in acting shall have no responsibility to determine the authenticity thereof), nor for any other action or refusing to act in good faith on any matterinaction, except her own willful misconduct or bad faith. The In all questions arising under this Agreement or the Escrow Agreement, the Shareholder Representative (in his capacity as such) shall may rely on the advice of counsel, and the Shareholder Representative will not be liable to Incumaker anyone for anything done, omitted or suffered in good faith by the Surviving Corporation Shareholder Representative based on such advice. Except as expressly provided herein, the Shareholder Representative will not be required to take any action involving any expense, other than as required by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative as the duly authorized action of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security Escrow Agreement.
Appears in 1 contract
Shareholder Representative. For purposes The Selling Parties, by virtue of their execution and delivery of this Agreement or, with respect to Selling Parties that are not signatories to this Agreement, by virtue of approval of this Agreement and the Merger by the Shareholders in accordance with the requirements of Delaware Law and by their acceptance of any Merger Consideration due to them, will be deemed to have irrevocably constituted and appointed, effective as of the date of this Agreement, IBF (together with its permitted successors, the Sky Shareholders hereby designate M▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as the sole and exclusive representative of the Shareholders (the “"Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative"), including ancillary agreements such as the Merger Note, Guaranty their true and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as lawful agent and attorney-in-fact for fact, and on behalf the Shareholder Representative, by its execution of this Agreement shall be deemed to have accepted such appointment, to enter into any agreement in connection with the transactions contemplated by this Agreement, the Deposit Escrow Agreement, the Interim Escrow Agreement or the Escrow Agreement, to exercise all or any of the Sky Shareholders powers, authority and discretion conferred on it under any such agreement, to act as proxy for each Selling Party in connection with any shareholder approvals required in connection with the transactions contemplated by this Agreement, to waive or modify any terms and conditions of any such agreement (other than payment of the Merger Consideration due at Closing), to give and receive notices on their behalf, and to be their exclusive representative with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated by any such agreement, including, without limitation, the performance assertion, prosecution, defense, settlement or compromise of his and claim, action or her duties as proceeding for which any Shareholder, Purchaser, or the Merger Sub may be entitled to indemnification and the Shareholder RepresentativeRepresentative agrees to act as, and to undertake the duties and responsibilities of, such agent and attorney-in-fact. This power of attorney is coupled with an interest and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky Shareholder shall otherwise exist against the Shareholder Representativeirrevocable. The Shareholder Representative shall not be liable to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions action taken or not taken by the him in his capacity as Shareholder Representative constituted actual fraud either (i) with the consent of stockholders who, as of the date of this Agreement, own a majority in number of the outstanding shares of Company voting stock (considered on an as converted basis), or were taken or not taken (ii) in bad faiththe absence of its own willful misconduct. The If the Shareholder Representative shall be indemnified unable or unwilling to serve in such capacity, its successor shall be named by those persons holding a majority of the shares of Company voting stock outstanding immediately prior to the Effective Time who shall serve and held harmless by exercise the Sky Shareholders against all losses, including costs powers of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant hereunder. Solely with respect to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative in its capacity as the duly authorized action of such, the Shareholder Representative on behalf of each Sky Shareholder with respect shall have no liability to any matters set forth in this AgreementPurchaser, the Merger Note, Company or any of their respective affiliates except for claims based upon fraud or bad faith actions by the Guaranty and the Security AgreementShareholder Representative.
Appears in 1 contract
Shareholder Representative. For purposes of (a) In order to efficiently administer the transactions contemplated by this Agreement, the Sky Shareholders hereby designate M▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as Plan of Arrangement, the sole Escrow Agreement and exclusive representative the Rights Indenture, including: (i) the final determination of the Deferred Consideration and the allocation of the Consideration among the Ample Shareholders in accordance with the Ample Articles; (ii) the “Shareholder Representative”) exercise on behalf of the Ample Shareholders of any voting rights, consent rights and/or the right to direct any votes with respect to those provisions the Special Voting Share, in each case, attaching to Up-front Shares during such time as any such Up-front Shares are held in escrow pursuant to the Escrow Agreement; (iii) the determination from time to time while the Up-front Shares (or any of them) are held in escrow pursuant to this Agreement that contemplate action by Escrow Agreement, of the number (if any) of Up-front Shares in respect of which each Ample Shareholder shall be entitled to provide instructions with respect to the exercise of any voting rights (including any right to direct the voting of the Special Voting Share) or consent right; (iv) the waiver of any condition to the obligations of Ample or the Ample Shareholders to consummate the transactions contemplated hereby; and (v) the defense and/or settlement of any claims for which the Ample Shareholder may be required to indemnify Akerna or Purchaser pursuant to this Agreement, the Shareholder Representative, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all virtue of the provisions entering into of this Agreement applicable to by the Shareholder Representative. Each successor Shareholder Representative shall have all of the powerParties, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as agent the true, exclusive and lawful representative, attorney-in-fact and agent for and on behalf of the Sky Shareholders each Ample Shareholder in connection with respect to the performance of his or her duties as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries Plan of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security AgreementArrangement.
(b) The Shareholder Representative shall have no duties is hereby authorized to make all decisions, take all actions or responsibilities except those expressly set forth herein, do any and no implied covenants, functions, responsibilities, duties, obligations or liabilities all thing necessary relating to: (i) the final determination of the Deferred Consideration and the allocation of the Consideration among the Ample Shareholders in accordance with the Ample Articles; (ii) the exercise on behalf of the Ample Shareholders of any Sky voting rights, consent rights and/or the right to direct any votes with respect to the Special Voting Share, in each case, attaching to Up-front Shares during such time as any such Up-front Shares are held in escrow pursuant to the Escrow Agreement; (iii) the determination from time to time while the Up-front Shares (or any of them) are held in escrow pursuant to this Escrow Agreement, of the number (if any) of Up-front Shares in respect of which each Ample Shareholder shall otherwise exist be entitled to provide instructions with respect to the exercise of any voting rights (including any right to direct the voting of the Special Voting Share) or consent right; (iv) the waiver of any condition to the obligations of Ample or the Ample Shareholders to consummate the transactions contemplated hereby; (v) the defense and/or settlement of any claims for which the Ample Shareholder may be required to indemnify Akerna or Purchaser pursuant to this Agreement; and (vi) any and all additional actions contemplated to be taken by the Shareholder Representative on behalf of the Ample Shareholders (or any of them) pursuant to this Agreement, the Plan of Arrangement, the Escrow Agreement or the Rights Indenture.
(c) Akerna and Purchaser shall be able to rely conclusively on the instructions and decision of the Shareholder Representative as to any decision or act of the Shareholder Representative taken in accordance with this Agreement, the Plan of Arrangement, the Escrow Agreement or the Rights Indenture and no party shall have any cause of action against Akerna or Purchaser for any action taken in reliance upon the instructions or decisions of the Shareholder Representative.
(d) No Ample Shareholder shall have any cause of action against the Shareholder RepresentativeRepresentative for any action taken, decision made or instruction given by the Shareholder Representative in accordance with this Agreement, the Plan of Arrangement, the Escrow Agreement or the Rights Indenture, except for fraud or wilful breach by the Shareholder Representative of this Agreement, the Plan of Arrangement, the Escrow Agreement or the Rights Indenture. The Shareholder Representative shall not be liable to any Sky Ample Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors action taken or omitted to be taken by them in connection with this Agreement, the Plan of Arrangement, the Escrow Agreement or the Rights Indenture in good faith and in the exercise of their reasonable judgment.
(e) The provisions of this Section 2.20 are independent and severable, negligenceare irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Ample Shareholder may have in connection with the transactions contemplated by this Agreement, oversightthe Plan of Arrangement, the Escrow Agreement or the Rights Indenture.
(f) Remedies available at law for any breach of duty or otherwise except to this Section 2.20 are inadequate, therefore, Akerna, Purchaser and the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be indemnified entitled to temporary and held harmless by permanent injunctive relief without the Sky necessity of proving damages if either of them brings an action to enforce the provisions of this Section 2.20.
(g) The provisions of this Section 2.20 shall be binding upon the executors, heirs, legal representative, personal representatives, successors and permitted assigns of each Ample Shareholder, and any references in this Agreement to an Ample Shareholder or Ample Shareholders against all lossesshall mean and include the successors to the Ample Shareholder’s rights hereunder, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative whether pursuant to this Agreement; providedtestamentary disposition, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court laws of competent jurisdiction by clear dissent and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder distribution or otherwise.
(ch) Incumaker shall be entitled to rely upon Notwithstanding any actions taken by other provision of this Agreement, the Shareholder Representative as the duly authorized action appointment of the Shareholder Representative on behalf shall be subject to and conditional upon receipt of each Sky the Ample Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty Approval and the Security Agreementapproval by the Court of the Arrangement pursuant to the Interim Order and the Final Order.
(i) Ample hereby covenants and agrees that on or prior to the Effective Date, Ample shall furnish to the Shareholder Representative a certified copy of the true and complete shareholder register of Ample as of the Effective Date (the “Effective Date Register”).
Appears in 1 contract
Sources: Arrangement Agreement (Akerna Corp.)
Shareholder Representative. For purposes The shareholders, by virtue of this their approval of the Agreement, will be deemed to have constituted and appointed, effective as of the Sky Shareholders hereby designate MEffective Time, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ to serve as the sole and exclusive representative of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable(together with his or its permitted successors, due to incapacity or otherwisethe "SHAREHOLDER REPRESENTATIVE"), to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform their true and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as -------------------------- lawful agent and attorney-in-fact for and on behalf of the Sky Shareholders with respect to the performance of his or her duties as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by enter into any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given agreement in connection with the consummation of the transactions contemplated by this Agreement and any transactions contemplated by the Escrow Agreement, to exercise all or any of the powers, authority and discretion conferred on him or it under any such agreement, to waive any terms and conditions of any such agreement (other than the Merger NoteConsideration), Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give and receive notices on their behalf and communicationsto be their exclusive representative with respect to any matter, (vi) object suit, claim, action or proceeding arising with respect to any transaction contemplated by any such deliveriesagreement, (viii) distribute including, without limitation, the proceeds defense, settlement or compromise of any claim, action or proceeding for which the Parent or the Merger Note Sub may be entitled to indemnification and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative shall have no duties or responsibilities except those expressly set forth hereinagrees to act as, and no implied covenantsto undertake the duties and responsibilities of, functions, responsibilities, duties, obligations or liabilities on behalf such agent and attorney-in- fact. This power of any Sky Shareholder shall otherwise exist against the Shareholder Representativeattorney is coupled with an interest. The Shareholder Representative shall not be liable to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions action taken or not taken by him or it in connection with his or its obligations under this Agreement (i) with the Shareholder Representative constituted actual fraud consent of shareholders who, as of the date of this Agreement, owned a majority in number of the outstanding shares of the Company Common Stock or were taken (ii) in the absence of his or not taken in bad faithits own gross negligence or wilful misconduct. The If the Shareholder Representative shall be indemnified and held harmless by unable or unwilling to serve in such capacity or if the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason shareholders of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant Company otherwise desire to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance replace the Shareholder Representative’s duties hereunder , his or otherwise.
(c) Incumaker its successor shall be entitled to rely upon any actions taken named by those persons holding a majority of the shares of the Company Common Stock outstanding at the Effective Time who shall serve and exercise the powers of Shareholder Representative as the duly authorized action of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security Agreementhereunder.
Appears in 1 contract
Shareholder Representative. For purposes The holders of the outstanding shares of the capital stock of the Company, by virtue of the execution and delivery of this Agreement, will be deemed to have irrevocably constituted and appointed, effective as of the Sky Shareholders hereby designate M▇date of this Agreement, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to serve as the sole and exclusive representative of the Shareholders (together with his permitted respective successors, collectively, the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative), including ancillary agreements such as the Merger Note, Guaranty their true and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as lawful agent and attorney-in-fact for fact, and on behalf the Shareholder Representative, by his execution of this Agreement shall be deemed to have accepted such appointment, to enter into any agreement in connection with the transactions contemplated by this Agreement, to exercise all or any of the Sky Shareholders powers, authority and discretion conferred on him under any such agreement, to act as proxy for each Company Shareholder in connection with any shareholder approvals required in connection with the transactions contemplated by this Agreement, to waive or modify any terms and conditions of any such agreement, to give and receive notices on their behalf, and to be their exclusive representative with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated by any such agreement, including, without limitation, the performance assertion, prosecution, defense, settlement or compromise of his any claim, action or her duties as proceeding for which any Company Shareholder or TPI may be entitled to indemnification and the Shareholder RepresentativeRepresentative agrees to act as, and to undertake the duties and responsibilities of, such agent and attorney-in-fact. This power of attorney is coupled with an interest and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky Shareholder shall otherwise exist against the Shareholder Representativeirrevocable. The Shareholder Representative shall not be liable to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions action taken or not taken by the him in his capacity as Shareholder Representative constituted actual fraud either (i) with the consent of Shareholders who, as of the date of this Agreement, own a majority in number of the outstanding shares of Company Stock (considered on an as converted basis), or were taken or not taken (ii) in bad faiththe absence of his own willful misconduct. The If the Shareholder Representative shall be indemnified unable or unwilling to serve in such capacity, his successor shall be named by those persons holding a majority of the shares of Company Common Stock outstanding immediately prior to the Closing Date who shall serve and held harmless by exercise the Sky Shareholders against all losses, including costs powers of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant hereunder. Solely with respect to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative in his capacity as the duly authorized action of such, the Shareholder Representative on behalf shall have no liability to TPI, or any of each Sky its affiliates except for claims based upon fraud by the Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security AgreementRepresentative.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Tradeshow Products, Inc.)
Shareholder Representative. For purposes (i) In order to efficiently administer the transactions contemplated by this Plan of this Arrangement, the Arrangement Agreement, the Sky Shareholders hereby designate M▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as Escrow Agreement and the sole and exclusive representative Rights Indenture, including: (i) the final determination of the Deferred Consideration and the allocation of the Consideration among the Ample Shareholders in accordance with the terms of this Plan of Arrangement, the Arrangement Agreement and the Ample Articles; (ii) the “Shareholder Representative”) exercise on behalf of the Ample Shareholders of any voting rights, consent rights and/or the right to direct any votes with respect to those provisions the Special Voting Share, in each case, attaching to Up-front Shares during such time as any such Up-front Shares are held in escrow pursuant to the Escrow Agreement; (iii) the determination from time to time while the Up-front Shares (or any of them) are held in escrow pursuant to this Agreement that contemplate action by Escrow Agreement, of the number (if any) of Up-front Shares in respect of which each Ample Shareholder shall be entitled to provide instructions with respect to the exercise of any voting rights (including any right to direct the voting of the Special Voting Share) or consent right; (iv) the waiver of any condition to the obligations of Ample or the Ample Shareholders to consummate the transactions contemplated hereby; and (v) the defense and/or settlement of any claims for which the Ample Shareholder may be required to indemnify Akerna or Purchaser pursuant to the Arrangement Agreement, the Shareholder Representative, including ancillary agreements such Representative is hereby appointed as the Merger Notetrue, Guaranty exclusive and Security Agreement; providedlawful representative, howeverattorney-in-fact and agent for each Ample Shareholder in accordance with, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all extent provided for, in the Arrangement Agreement and this Plan of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder RepresentativeArrangement.
(aii) The Shareholder Representative is hereby constituted and appointed as agent and attorney-in-fact for and on behalf of the Sky Shareholders with respect authorized to the performance of his make all decisions, take all actions or her duties as the Shareholder Representative. This power of attorney do any and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, thing necessary relating to: (i) interpret the final determination of the Deferred Consideration and the allocation of the Consideration among the Ample Shareholders in accordance with the terms and provisions of this Plan of Arrangement, the Arrangement Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, Ample Articles; (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation exercise on behalf of the transactions contemplated by this Agreement and Ample Shareholders of any voting rights, consent rights and/or the Merger Noteright to direct any votes with respect to the Special Voting Share, Guaranty and Security Agreement (including executing this Agreementin each case, attaching to Up-front Shares during such time as any such Up-front Shares are held in escrow pursuant to the Merger Note, the Guaranty and the Security Escrow Agreement, (iii) receive service the determination from time to time while the Up-front Shares (or any of process them) are held in connection with any claims under escrow pursuant to this Escrow Agreement, of the Merger Note, number (if any) of Up-front Shares in respect of which each Ample Shareholder shall be entitled to provide instructions with respect to the Guaranty exercise of any voting rights (including any right to direct the voting of the Special Voting Share) or the Security Agreement, consent right; (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense waiver of claims, and demand arbitration and comply with orders any condition to the obligations of courts and awards of arbitrators with respect Ample or the Ample Shareholders to such claims, and to take all actions necessary or appropriate in consummate the judgment of the Shareholder Representative for the accomplishment of the foregoing, transactions contemplated hereby; (v) give the defense and/or settlement of any claims for which the Ample Shareholder may be required to indemnify Akerna or Purchaser pursuant to the Arrangement Agreement; and receive notices and communications, (vi) object any and all additional actions contemplated to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of be taken by the Shareholder Representative on behalf of the Sky Ample Shareholders in connection with this (or any of them) pursuant to the Arrangement Agreement, the Merger Notethis Plan of Arrangement, the Guaranty and Escrow Agreement or the Security AgreementRights Indenture.
(biii) The Akerna and Purchaser shall be able to rely conclusively on the instructions and decision of the Shareholder Representative as to any decision or act of the Shareholder Representative taken in accordance with the Arrangement Agreement, this Plan of Arrangement, the Escrow Agreement or the Rights Indenture and no Party shall have no duties any cause of action against Akerna or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations Purchaser for any action taken in reliance upon the instructions or liabilities on behalf decisions of any Sky the Shareholder Representative.
(iv) No Ample Shareholder shall otherwise exist have any cause of action against the Shareholder RepresentativeRepresentative for any action taken, decision made or instruction given by the Shareholder Representative in accordance with the Arrangement Agreement, this Plan of Arrangement, the Escrow Agreement or the Rights Indenture, except for fraud or wilful breach by the Shareholder Representative of the Arrangement Agreement, this Plan of Arrangement, the Escrow Agreement or the Rights Indenture. The Shareholder Representative shall not be liable to any Sky Ample Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions action taken or not omitted to be taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred them in connection with any actionthe Arrangement Agreement, suitthis Plan of Arrangement, proceeding the Escrow Agreement or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act Rights Indenture in good faith on any matter. The Shareholder Representative (and in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason exercise of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwisetheir reasonable judgment.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative as the duly authorized action of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security Agreement.
Appears in 1 contract
Sources: Arrangement Agreement (Akerna Corp.)
Shareholder Representative. For purposes (a) Each Company Shareholder will be deemed to have irrevocably constituted and appointed, effective as of this Agreementthe Closing, the Sky Shareholders hereby designate M▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ to serve as the sole and exclusive representative of the Shareholders (together with his permitted successors, the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative), including ancillary agreements such as the Merger Note, Guaranty his true and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as lawful agent and attorney-in-fact for and on behalf to enter into any agreement in connection with the transactions contemplated by this Agreement, to exercise all or any of the Sky Shareholders powers, authority and discretion conferred on him under any such agreement, to waive any terms and conditions of any such agreement (other than the payment of the Merger Consideration in accordance with Section 1.8), to give and receive notices on his behalf and to be his exclusive representative with respect to any matter, suit, claim, action or Proceeding arising with respect to any transaction contemplated by any such agreement, including, without limitation, the performance defense, settlement or compromise of his any claim, action or her duties as proceeding for which Parent or, following the Shareholder RepresentativeClosing, Company may be entitled to indemnification. This power of attorney is coupled with an interest and all authority is irrevocable. Each Company Shareholder agrees that any action that may be taken or right that may be exercised under or related to this Agreement or any transaction contemplated hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision Company Shareholder may only be taken or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received exercised by the Shareholder Representative concerning this AgreementRepresentative, and that such Company Shareholder shall be bound by all actions and omissions of the Shareholder Representative. Without limiting the generality of the foregoing, any notice or other communication to be delivered to the Company Shareholders hereunder shall be effective for all purposes if such notice or other communication is delivered to the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security AgreementRepresentative.
(b) The Shareholder Representative shall have no duties not be liable to anyone for any action taken or responsibilities except those expressly set forth hereinnot taken by him in good faith or for any mistake of fact or law for anything that he may do or refrain from doing in connection with his obligations under this Agreement (i) with the consent of Company Shareholders who, as of the date of this Agreement, owned a majority in number of the outstanding Company Shares or (ii) even without such consent, in the absence of his own gross negligence or willful misconduct. Any action taken or not taken pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Company Shareholders shall, jointly and no implied covenantsseverally, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky Shareholder shall otherwise exist against indemnify and hold the Shareholder Representative, and each successor thereof, harmless from any and all liability and expenses (including, without limitation, counsel fees) that may arise out of any action taken or omitted by him as Shareholder Representative in accordance with this Agreement, as the same may be amended, modified or supplemented, except such liability and expense as may result from the gross negligence or willful misconduct of the Shareholder Representative.
(c) The Shareholder Representative may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed to be genuine and to have been signed or presented by the proper party or parties. The Shareholder Representative shall not be liable to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgmentother parties’ forgeries, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. false presentations.
(d) The Shareholder Representative shall be indemnified have reasonable access to information about the Company and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason reasonable assistance of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; providedCompany’s officers and employees for purposes of performing his duties and exercising his rights hereunder, however, provided that the Shareholder Representative shall treat confidentially and not be entitled disclose any nonpublic information from or about the Company to indemnification hereunder anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
(e) If the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless unable or unwilling to serve in acting upon any noticesuch capacity, statement or certificate believed his successor shall be named by those persons holding a majority of the Shareholder Representative Company Shares outstanding immediately prior to be genuine the Closing, and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as suchsuch successor(s) shall not be liable to Incumaker or serve and exercise the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative as the duly authorized action powers of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security Agreementhereunder.
Appears in 1 contract
Shareholder Representative. For purposes of this Agreement, the Sky Shareholders hereby designate M▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as the sole and exclusive representative of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The approval of this Agreement by the Shareholders shall constitute their ratification and approval of the appointment of the Shareholder Representative is hereby constituted and appointed as agent and attorney-in-fact for and pursuant to this Agreement to act on behalf of the Sky Shareholders with respect Indemnifying Parties, which shall include the power and authority (on all matters other than those designated to the performance of his or her duties as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Earnout Representative shall promptly deliver pursuant to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: Section 1.6(e)):
(i) interpret the terms and provisions for purposes of this Agreement and the documents Article VII, to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver give and receive deliveries notices and communications, to authorize delivery to any Indemnified Party of all agreementscash from the Escrow Fund in satisfaction of claims by an Indemnified Party, certificatesto object to such deliveries, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration bring suit and comply with orders of courts Orders and awards of arbitrators courts with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, ;
(vii) give to execute and receive notices deliver such waivers and communications, (vi) object to such deliveries, (viii) distribute consents in connection with this Agreement and the proceeds Related Agreements and the consummation of the Merger Note transactions contemplated hereby and thereby as the Security Agreement Shareholder Representative, in its sole discretion, may deem necessary or desirable;
(if applicableiii) to enforce and protect the rights and interests of all Indemnifying Parties arising out of or under or in any manner relating to this Agreement, and any earnings other document contemplated hereby, and proceeds thereon to take any and (ix) take all actions which the Shareholder Representative believes are necessary or appropriate in the judgment of the Shareholder Representative under this Agreement for and on behalf of the Sky Shareholders Indemnifying Parties;
(iv) to refrain from enforcing any right of the Indemnifying Parties or any of them and/or the Shareholder Representative arising out of or under or in any manner relating to this Agreement or any document contemplated hereby; provided, however, that no such failure to act on the part of the Shareholder Representative, except as otherwise provided in this Agreement, shall be deemed a waiver of any such right or interest by the Shareholder Representative or by the Indemnifying Parties unless such waiver is in writing signed by the waiving party or by the Stockholders’ Representative; and
(v) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Shareholder 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, the Merger Note, the Guaranty Agreement and the Security Agreementall other documents contemplated hereby.
(b) The Shareholder Representative shall have no duties may resign upon written notice to the Surviving Corporation, with or responsibilities except those expressly set forth hereinwithout cause, and no implied covenantsthe holders representing a majority of the Pro Rata Portions shall appoint a successor. Additionally, functionsthe Shareholder Representative may be changed by the Indemnifying Parties upon ten (10) days’ prior written notice to Parent, responsibilitiessigned by the holders representing a majority of the Pro Rata Portions. The outgoing Stockholders’ Representative shall be entitled to immediate reimbursement of all Shareholder Representative Expenses pursuant to Section 7.6(f) hereof. The successor shall be entitled to all the rights, dutiespowers, obligations immunities and privileges as was his or liabilities on behalf her predecessor, without the need of any Sky Shareholder further act or writing. No bond shall otherwise exist against be required of the Shareholder Representative, and the Shareholder Representative shall not receive compensation for his or her services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from each of the Indemnifying Parties.
(c) The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith (and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith) and without gross negligence or willful misconduct.
(d) A decision, act, consent or instruction of the Shareholder Representative with respect to the matters regarding the Escrow Fund contemplated by this Section 7.6, including an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and Section 8.4 hereof, shall constitute a decision of all of the Indemnifying Parties and shall be final, binding and conclusive, and the Escrow Agent and the Indemnified Parties may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each Indemnifying Party. The Escrow Agent and the Indemnified Parties are hereby relieved from any Liability to any Sky Person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder relating Representative.
(e) Parent and Sub, on behalf of all Indemnified Parties, hereby agree that any notice, right, or obligation required to be delivered to, performed by, or asserted by the performance Indemnifying Parties regarding the Escrow Fund shall be delivered to, performed by or asserted by the Shareholder Representative.
(f) The Indemnifying Parties shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence, willful misconduct or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties under this Agreement for hereunder, including any errors in judgment, negligence, oversight, breach out-of-pocket costs and the reasonable fees and expenses of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken any legal counsel retained by the Shareholder Representative constituted actual fraud (“Shareholder Representative Expenses” and together with Earnout Representative Expenses, the “Representative Expenses”). Following the termination of the Escrow Fund, the resolution of all Unresolved Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Shareholder Representative shall have the right to recover Shareholder Representative Expenses from the Escrow Fund prior to any distribution to the Indemnifying Parties, and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Shareholder Representative Expenses actually incurred, to the extent such Shareholder Representative Expenses exceed the amount of the Representative Fund and if such Shareholder Representative Expenses have not been paid directly to the Shareholder Representative by the Indemnifying Parties. After the release of the Escrow Fund pursuant to the terms of this Agreement, the Shareholder Representative may seek recovery of any unpaid Shareholder Representative Expenses from the Indemnifying Parties according to their respective Pro Rata Portions.
(g) The Shareholder Representative may engage attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as the Shareholder Representative may deem necessary or were taken desirable and incur other out-of-pocket expenses related to performing its services hereunder, with the fees and expenses of such engagements and assistance considered Shareholder Representative Expenses. The Shareholder Representative may in good faith rely conclusively upon information, reports, statements and opinions prepared or presented by such professionals.
(h) The Shareholder Representative shall have reasonable access to information about the Company and the reasonable assistance of the Surviving Corporation’s officers and employees for purposes of performing his duties and exercising his rights hereunder, provided that the Shareholder Representative shall treat confidentially and not taken in bad faithdisclose any nonpublic information from or about the Surviving Corporation to anyone (except on a need to know basis to individuals who agree to treat such information confidentially). The Shareholder Representative shall be indemnified and held harmless responsible for any breach of this Section 7.6(g) by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which individuals the Shareholder Representative is made a party by reason shares such information with and shall keep Parent promptly informed of the fact that those individuals the Shareholder Representative was acting shares such information with.
(i) At the Effective Time, Parent shall deposit or cause to be deposited, by wire transfer of immediately available funds, the Representative Amount with the Earnout Representative (the “Representative Fund”). If the Earnout Representative ceases to be the Earnout Representative under this Agreement, he or she shall transfer any amounts remaining in the Representative Fund to the successor Earnout Representative. The Representative Fund (plus any interest paid on such Representative Fund) shall be available to reimburse the Earnout Representative or the Shareholder Representative, as applicable and in each case on behalf of the Indemnifying Parties, for any Representative Expenses actually incurred prior to the determination of Final CY13 EBIT in accordance with Section 1.6(e) hereof. Following such determination of Final CY13 EBIT, the Earnout Representative shall distribute such portion of the Representative Fund which has not been used to reimburse the Earnout Representative or the Shareholder Representative pursuant to this Agreement; providedfor Representative Expenses, howeverif any, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity Effective Time Holders as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwiseif such distribution was an Escrow Release.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative as the duly authorized action of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security Agreement.
Appears in 1 contract
Shareholder Representative. For purposes (a) The Company Shareholders hereby authorize, direct and appoint TII Shareholder Representative, LLC to act as the Shareholder Representative, with full power of substitution with respect to all matters under this Agreement, including, without limitation, determining, giving and receiving notices and processes hereunder, receiving distributions of the Merger Consideration to or for the benefit of the Company Shareholders, contesting and settling any and all claims for indemnification pursuant to this Agreement, resolving any other disputes hereunder, performing the duties expressly assigned to the Shareholder Representative hereunder and to engage and employ agents and representatives and to incur such other expenses as the Shareholder Representative shall reasonably deem necessary or prudent in connection with the foregoing. The Shareholder Representative may request contributions in advance of making such expenditures. If it does not request a contribution in advance, the Company Shareholders will be liable on an Adjusted Pro Rata Basis to indemnify the Shareholder Representative for all such expenses, in accordance with Section 14.1(f). The Shareholder Representative shall have the sole and exclusive right on behalf of any Company Shareholder to take any action or provide any waiver, or receive any notice with respect to any claims for indemnification under this Agreement and to settle any claim or controversy arising with respect thereto. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Shareholder Representative consistent herewith, shall be absolutely and irrevocably binding on each Company Shareholder as if such Company Shareholder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Company Shareholder’s individual capacity, and no Company Shareholder shall have the right to object, dissent, protest or otherwise contest the same. Any action required to be taken by the Company Shareholders hereunder or any action which the Company Shareholders, at their election, have the right to take hereunder, shall be taken only by the Shareholder Representative and no Company Shareholder acting on its own shall be entitled to take any such action.
(b) The appointment of the Shareholder Representative as each Company Shareholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person or Persons to represent such Company Shareholder with regard to this Agreement, the Sky Shareholders Common Shares or the transactions contemplated hereby. The appointment of the Shareholder Representative as attorney-in-fact pursuant hereto is coupled with an interest and, subject to the removal and replacement procedure set forth in Section 14.1(d), is irrevocable. The obligations of each Company Shareholder pursuant to this Agreement (i) will not be terminated by operation of law, death, mental or physical incapacity, liquidation, dissolution, bankruptcy, insolvency or similar event with respect to such Company Shareholder or any proceeding in connection therewith, or in the case of a trust, by the death of any trustee or trustees or the termination of such trust, or any other event, and (ii) shall survive the delivery of an assignment by any Company Shareholder of the whole or any fraction of its interest in any payment due to it under this Agreement.
(c) Each Company Shareholder hereby designate M▇▇waives all potential conflicts of interest arising out of the Shareholder Representative’s activities or authority as the Shareholder Representative and its relationships (or the relationships of its sole member, ▇▇▇▇ ▇▇▇▇▇▇ to serve ▇▇) with the Company or any of its Subsidiaries or affiliates (whether before or after the Closing), whether as the sole and exclusive an employee, consultant, agent, director, officer, shareholder or other representative of the Shareholders Company or any of its Affiliates.
(d) The term of the Shareholder Representative (the “Term”) shall commence on the date of this Agreement, and shall terminate upon the fifth anniversary of the Closing Date. During the Term, the Shareholder Representative shall be paid an annual fee of $5,000 (payable on the date hereof and on each anniversary until the end of the Term), and shall be paid an additional fee of $100/hr for time spent by its principals in performing the Shareholder Representative’s duties under this Agreement. The annual and hourly fees payable to the Shareholder Representative under this Section 14.1(d) are referred to collectively as the “Shareholder Rep Fees”.
(e) The Shareholder Representative may resign at any time by giving written notice of resignation, at least thirty (30) days prior to the effectiveness of such resignation, to Parent and the Company Shareholders. The Shareholder Representative may be removed at any time with respect or without cause by the approval of the holders of seventy-five percent (75%) of the Common Shares held by the Company Shareholders on the Closing Date (the “Approving Holders”); the Approving Holders shall promptly notify the Shareholder Representative in writing of such removal, and such removal shall be effective immediately upon the Shareholder Representative’s receipt of written notice. On the effective date of any such resignation or removal, the resigning or removed Shareholder Representative shall be discharged from its duties and obligations as the Shareholder Representative under this Agreement. On or prior to those provisions the effective date of this Agreement that contemplate action any resignation or removal, the Approving Holders shall select a successor Shareholder Representative. In the case of a resigning Shareholder Representative, if no successor Shareholder Representative shall have been so appointed by the Approving Holders and shall have accepted such appointment (effective upon the effective date of resignation of the resigning Shareholder Representative), the resigning Shareholder Representative may (but shall not be obligated to), on behalf of the Approving Holders, appoint a successor Shareholder Representative. Upon its acceptance of appointment as the Shareholder Representative, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as successor Shareholder Representative or resigns as Shareholder Representativeshall thereupon succeed to and become vested with all the rights, then [Name] shall serve as successor powers, privileges and duties of the resigning Shareholder Representative. Each After any resigning Shareholder Representative’s resignation or removal hereunder as the Shareholders’ Representative, the provisions of this Section 14.1 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Shareholder Representative. Any successor Shareholder Representative, if required to serve, Representative shall sign an acknowledgment in writing agreeing to perform and by means of execution of a counterpart hereof be bound by all of the provisions terms of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of .
(f) Subject to the powerprovisions hereof, authority, rights and privileges conferred by this Agreement upon the original TII Shareholder Representative, LLC hereby accepts the foregoing appointment and the term “Shareholder Representative” as used herein shall be deemed agrees to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as agent and attorney-in-fact for and on behalf of the Sky Shareholders with respect to the performance of his or her duties serve as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received acceptance by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoingappointment is expressly subject to, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed Company Shareholders expressly acknowledge and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense limitation of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment liability of the Shareholder Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.as set forth below:
(bi) The Shareholder Representative shall be obligated to perform only the duties specifically set forth in this Agreement and in this Agreement and shall have no implied duties or responsibilities except those expressly set forth hereinobligations.
(ii) THE SHAREHOLDER REPRESENTATIVE SHALL HAVE NO LIABILITY TO THE COMPANY SHAREHOLDERS FOR ANY ACT OR OMISSION IN THE ABSENCE OF WILLFUL MISCONDUCT ON THE PART OF SHAREHOLDER REPRESENTATIVE.
(iii) IN NO EVENT SHALL THE SHAREHOLDER REPRESENTATIVE BE LIABLE TO ANY COMPANY SHAREHOLDERS FOR SPECIAL, and no implied covenantsINDIRECT, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky Shareholder shall otherwise exist against the Shareholder Representative. PUNITIVE OR CONSEQUENTIAL DAMAGE OR LOST PROFITS OR LOSS OF BUSINESS.
(iv) The Shareholder Representative shall not be liable to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear may rely and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred protected in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting relying upon any notice, statement document or certificate instrument believed by the Shareholder Representative to be genuine (or to be a genuine copy, facsimile, email/PDF of such document or instrument) and to have been furnished signed by any Person, and shall not be liable for any action taken or omitted in accordance with the appropriate person and in acting or refusing to act in good faith on any matter. provisions of such instrument.
(v) The Shareholder Representative may, from time to time (at the expense of the Company Shareholders, as provided in his capacity as suchSection 14.1(a)), consult with legal counsel (including, without limitation, counsel that has previously represented the Company in connection with the transactions contemplated by this Agreement) with respect to any matter arising in connection with the rights or duties of the Shareholder Representative under this Agreement or any other document relating to the transactions contemplated by this Agreement, or in connection with the foregoing appointment, and shall not be liable to Incumaker the Company Shareholders for, and shall be fully protected with respect to, any action taken or omitted in reliance upon the Surviving Corporation by reason advice of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwisesuch counsel.
(cg) Incumaker shall The Company Shareholders agree to indemnify, defend, and hold harmless the Shareholder Representative against, and promptly reimburse the Shareholder Representative the full amount of, any and all losses, claims, damages, liabilities, and expenses, including all costs of investigation and counsel fees, that may be entitled to rely upon any actions taken imposed on or incurred by the Shareholder Representative in connection with its serving as Shareholder Representative under this Agreement or arising out of or in connection with the duly authorized performance of its duties as Shareholder Representative. The obligation to indemnify shall include, without limitation, the following:
(i) Any and all costs, damages, losses, settlement payments, obligations, liabilities, claims, actions or causes of action, taxes and tax liabilities (including penalty and interest), encumbrances and expenses (including, without limitation, attorneys’ fees, interest and penalties) suffered, sustained, incurred or paid by the Shareholder Representative; and
(ii) All costs and expenses (including, without limitation, attorneys’ fees, interest and penalties) incurred by the Shareholder Representative in connection with any action, proceeding, demand, assessment or judgment arising out of or incident to any of the matters for which indemnity is provided in this Agreement. THE OBLIGATIONS OF COMPANY SHAREHOLDERS TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE SHAREHOLDER REPRESENTATIVE SHALL APPLY NOTWITHSTANDING THAT THE DAMAGE OR LOSS WITH RESPECT TO WHICH SUCH INDEMNIFICATION APPLIES IS CAUSED, IN WHOLE OR IN PART, BY ANY ACT OR OMISSION OF THE SHAREHOLDER REPRESENTATIVE (INCLUDING WITHOUT LIMIATATION THE NEGLIGENCE OR GROSS NEGLIGENCE OF THE SHAREHOLDER REPRESENTATIVE), BUT SHALL NOT APPLY TO DAMAGE OR LOSS RESULTING FROM THE WILLFUL MISCONDUCT OF THE SHAREHOLDER REPRESENTATIVE.
(h) The Company Shareholders expressly authorize and direct the Shareholder Representative to fund, from the Shareholder Rep Holdback, any Shareholder Rep Fees or any other amounts payable to the Shareholder Representative under this Agreement. The Company Shareholders shall be obligated to promptly fund their pro rata portion of any amounts payable to the Shareholder Representative pursuant to this Agreement that are in excess of the then funded Shareholder Rep Holdback, and the Company Shareholders’ respective liability therefor shall be determined on an Adjusted Pro Rata Basis. Furthermore, if at any time during the Term the Shareholder Representative determines that the funds remaining in the Shareholder Rep Holdback are insufficient to cover the Shareholder Rep Fees, any costs or expenses of the Shareholder Representative incurred or to be incurred in connection with the carrying out of its duties pursuant to this Agreement, and any other amounts payable to the Shareholder Representative under this Agreement, the Shareholder Representative shall have the right to require the Company Shareholders to provide additional funds to replenish the Shareholder Rep Holdback; provided, that in the event of such a request, the Company Shareholders shall be obligated to promptly fund their pro rata portion of such requested funding on an Adjusted Pro Rata Basis; and provided further, that in no event shall the balance of the Shareholder Rep Holdback exceed $1,500,000 unless approved in writing by the Approving Holders.
(i) The Shareholder Rep Holdback shall be deposited in an interest bearing account in the name of the Shareholder Representative (the “Holdback Account”), and shall be applied by the Shareholder Representative in accordance with this Agreement and the Escrow Agreement. Upon expiration of the Term, the remaining balance of the Shareholder Rep Holdback shall be paid to the Company Shareholders on a pro rata basis, in accordance with each Company’s Shareholder’s respective aggregate contributions to the Shareholder Rep Holdback. If the Shareholder Representative resigns or is removed: (A) control of the Holdback Account shall transfer to the successor Shareholder Representative, the resigning or removed Shareholder Representative shall execute and deliver any documentation necessary to transfer sole control of the Holdback Account to its successor, and (B) the resigning or removed Shareholder Representative shall prepare and deliver to its successor an accounting of the Holdback Account, demonstrating in reasonable detail all contributions to and disbursements from the Holdback Account through the date of resignation or removal.
(j) Without limiting any other provision of this Article 14, the Company Shareholders shall be obligated to designate and maintain, at all times from the Closing through the expiration of the Term, a Shareholder Representative with the power and authorities described in this Article 14. Any third party (including the Surviving Corporation and Parent) may rely upon any such decision, waiver, consent, instruction or other action of the Shareholder Representative on behalf as being the decision, waiver, consent, instruction or other action of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security Agreementevery Company Shareholder.
Appears in 1 contract
Shareholder Representative. For purposes (a) Each Seller will be deemed to have irrevocably constituted and appointed, effective as of this Agreementthe Closing, the Sky Shareholders hereby designate MDav▇▇ ▇. ▇▇▇▇▇ (▇▇▇▇▇▇ to serve ogether with his permitted successors, the "SHAREHOLDER REPRESENTATIVE"), as the sole his true and exclusive representative of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as lawful agent and attorney-in-fact for and on behalf of the Sky Shareholders with respect to the performance of his or her duties as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by enter into any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given agreement in connection with the consummation of the transactions contemplated by this Agreement and any transactions contemplated by the Merger Note, Guaranty and Security Agreement (including executing this Escrow Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with to exercise all or any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for powers, authority and discretion conferred on him under any such agreement, to waive any terms and conditions of any such agreement (other than the accomplishment of the foregoingBuyer Shares issuable in accordance with Section 2.1), (v) to give and receive notices on his behalf and communicationsto be his exclusive representative with respect to any matter, (vi) object suit, claim, action or Proceeding arising with respect to any transaction contemplated by any such deliveriesagreement, (viii) distribute including, without limitation, the proceeds defense, settlement or compromise of any claim, action or proceeding for which Buyer or, following the Merger Note Closing, -------------------------------------------------------------------------------- STOCK PURCHASE AGREEMENT - EXECUTION COPY PAGE 8 CCS TECHNOLOGY, INC. Company may be entitled to indemnification and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf agrees to act as, and to undertake the duties and responsibilities of, such agent and attorney-in-fact. This power of the Sky Shareholders in connection attorney is coupled with this Agreement, the Merger Note, the Guaranty an interest and the Security Agreementis irrevocable.
(b) The Shareholder Representative shall have no duties not be liable to anyone for any action taken or responsibilities except those expressly set forth hereinnot taken by him in good faith or for any mistake of fact or law for anything that he may do or refrain from doing in connection with his obligations under this Agreement (i) with the consent of stockholders who, as of the date of this Agreement, owned a majority in number of the outstanding shares of Company Common Stock or (ii) in the absence of his own gross negligence or willful misconduct. Any action taken or not taken pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Sellers shall, jointly and no implied covenantsseverally, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky Shareholder shall otherwise exist against indemnify and hold the Shareholder Representative, and each successor thereof, harmless from any and all liability and expenses (including, without limitation, counsel fees) that may arise out of any action taken or omitted by him as Shareholder Representative in accordance with this Agreement, as the same may be amended, modified or supplemented, except such liability and expense as may result from the gross negligence or willful misconduct of the Shareholder Representative.
(c) The Shareholder Representative may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed to be genuine and to have been signed or presented by the proper party or parties. The Shareholder Representative shall not be liable to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgmentother parties' forgeries, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. false presentations.
(d) The Shareholder Representative shall be indemnified have reasonable access to information about the Company and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason reasonable assistance of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; providedCompany's officers and employees for purposes of performing his duties and exercising his rights hereunder, however, provided that the Shareholder Representative shall treat confidentially and not be entitled disclose any nonpublic information from or about the Company to indemnification hereunder anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
(e) If the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless unable or unwilling to serve in acting upon any noticesuch capacity, statement or certificate believed his successor shall be named by those persons holding a majority of the Shareholder Representative shares of Company Common Stock outstanding immediately prior to be genuine the Closing, and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as suchsuch successor(s) shall not be liable to Incumaker or serve and exercise the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative as the duly authorized action powers of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security Agreementhereunder.
Appears in 1 contract
Shareholder Representative. For purposes The Designated Company Stockholders, by virtue of the approval of this AgreementAgreement and the Merger, will be deemed to have irrevocably constituted and appointed, effective as of the date hereof, Andreas Typaldos (together with his permitted successors, the Sky Shareholders hereby designate M"REPRES▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as the sole and exclusive representative of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative"), including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform heir true and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as lawful agent and attorney-in-fact for fact, and on behalf the Representative, by his execution of this Agreement shall be deemed to have accepted such appointment, to enter into any agreement in connection with the transactions contemplated by this Agreement, the Escrow Agreements or the Shareholder Agreement to exercise all or any of the Sky Shareholders powers, authority and discretion conferred on him under any such agreement, to waive any terms and conditions of any such agreement (other than the Merger Consideration), to give and receive notices on their behalf, and to be their exclusive representative with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated by any such agreement, including, without limitation, the performance assertion, prosecution, defense, settlement or compromise of his any claim, action or her proceeding for which any Company Stockholder, Parent or the Merger Sub may be entitled to indemnification and the Representative agrees to act as, and to undertake the duties as the Shareholder Representativeand responsibilities of, such agent and attorney-in-fact. This power of attorney is coupled with an interest and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other eventirrevocable. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky Shareholder shall otherwise exist against the Shareholder Representative. The Shareholder Representative shall not be liable to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions action taken or not taken by him in his capacity as Representative (i) with the Shareholder Representative constituted actual fraud consent of Designated Company Stockholders who, as of the date of this Agreement, own a majority in number of the outstanding Company Shares owned by all of the Designated Company Stockholders, in the aggregate, or were taken or not taken (ii) in bad faiththe absence of his own willful misconduct. The Shareholder If the Representative shall be indemnified and unable or unwilling to serve in such capacity, his successor shall be named by those persons holding a majority of the Company Shares outstanding immediately prior to the Effective Time held harmless by the Sky Shareholders against all losses, including costs Designated Company Stockholders who shall serve and exercise the powers of defense, paid or incurred in connection Representative hereunder. Solely with respect to any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative as the duly authorized action of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security AgreementRepresentative shall have no liability to Parent or any of its affiliates except for claims based upon fraud.
Appears in 1 contract
Sources: Merger Agreement (Cdknet Com Inc)
Shareholder Representative. For purposes By the execution and delivery of this Agreement, each of the Sky Selling Shareholders hereby designate Mirrevocably constitutes and appoints R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to serve as the sole (and exclusive representative of the Shareholders (the “Shareholder Representative”) with respect to those provisions by his execution of this Agreement that contemplate action by the Shareholder RepresentativeAgreement, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if MR. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve hereby accepts his appointment) as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform the true and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as lawful agent and attorney-in-fact for (the “Shareholder Representative”) of the Selling Shareholders to act in the name, place and stead of the Selling Shareholders in connection with the transactions contemplated by this Agreement (other than any retention agreements between Buyer and any Selling Shareholder), and to act on behalf of the Sky Selling Shareholders with respect in any litigation or arbitration involving this Agreement or any other Transaction Document (other than any employment agreements between the Surviving Corporation and any Selling Shareholder), to the performance of his do or her duties refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and Representative shall be irrevocable and shall not be terminated deem necessary or appropriate, in connection with the transactions contemplated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision this Agreement or any other event. The Shareholder Representative shall promptly Transaction Document (other than any employment agreements between the Surviving Corporation and any Selling Shareholder), including, without limitation, the power:
(a) to act for the Selling Shareholders with regard to matters pertaining to the Post-Closing Adjustment Statement and the Post-Closing Adjustment;
(b) to act for the Selling Shareholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Selling Shareholders and to transact matters of litigation;
(c) to execute and deliver to each Sky Shareholder any notice received by all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required deems necessary or permitted to be given appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(d) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(e) to receive funds for the payment of expenses of the Selling Shareholders and apply such funds in payment for such expenses;
(f) to do or refrain from doing any further act or deed on behalf of the Merger Note, Guaranty Selling Shareholders that the Shareholder Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement as fully and Security Agreement completely as the Selling Shareholders could do if personally present; and
(including executing this Agreement, the Merger Note, the Guaranty g) to receive notices and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement.
(h) Buyer, Merger Sub, the Merger NoteSurviving Corporation and any other Person may conclusively and absolutely rely, the Guaranty or the Security Agreementwithout inquiry, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment upon any action of the Shareholder Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) object in all matters referred to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take herein. The Selling Shareholders hereby confirm all actions necessary or appropriate in the judgment of that the Shareholder Representative on behalf shall do or cause to be done by virtue of her appointment as the Shareholder Representative of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky Shareholder shall otherwise exist against the Shareholder RepresentativeSelling Shareholders. The Shareholder Representative shall not be liable to any Sky Shareholder relating to act for the performance Selling Shareholders on all of the Shareholder Representative’s duties under matters set forth in this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by manner the Shareholder Representative constituted actual fraud or were taken or not taken believes to be in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason best interest of the fact that Selling Shareholders and consistent with the Shareholder Representative was acting as the Shareholder Representative pursuant to obligations under this Agreement; provided, however, that but the Shareholder Representative shall not be entitled to indemnification hereunder responsible to the extent it is finally determined Selling Shareholders for any loss or damages the Selling Shareholders may suffer by the performance of her duties under this Agreement, other than loss or damage arising from willful violation of the law or gross negligence in a court the performance of competent jurisdiction by clear and convincing evidence that her duties under this Agreement.
(i) Upon the actions taken or not taken Closing, the Company shall wire $500,000 (the “Expense Fund”) to an account designated by the Shareholder Representative, which will be used for the purposes of paying directly, or reimbursing the Shareholder Representative constituted actual fraud for, any third party expenses pursuant to this Agreement and the other Transaction Documents or were taken for satisfying certain Claims pursuant to Section 8.4(f). The Selling Shareholders will not receive any interest or not taken earnings on the Expense Fund and irrevocably transfer and assign to the Shareholder Representative any ownership right that they may otherwise have had in bad faithany such interest or earnings. The Shareholder Representative shall will not be held harmless in acting upon liable for any notice, statement loss of principal of the Expense Fund other than as a result of its gross negligence or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matterwillful misconduct. The Shareholder Representative (will hold these funds separate from its unrelated funds, will not use these funds for any unrelated purposes and will not voluntarily make these funds available to its creditors in his capacity the event of bankruptcy. As soon as such) shall not be liable to Incumaker or practicable following the Surviving Corporation by reason completion of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwiseresponsibilities, the Shareholder Representative will deliver any remaining balance of the Expense Fund to the Selling Shareholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Selling Shareholders at the time of Closing.
(cj) Incumaker The initial Shareholder Representative shall appoint his or her successor Shareholder Representative, or if the initial Shareholder Representative dies or becomes disabled (such that he or she cannot perform his or her duties as Shareholder Representative or to appoint a successor Shareholder Representative) or is otherwise unable or unwilling to appoint a successor then the successor Shareholder Representative shall be entitled Cohiba Retained Assets, LLC. If any successor Shareholder Representative dies or becomes disabled (such that he or she could - 68 - not perform his or her duties as Shareholder Representative or to rely upon any actions taken appoint a successor Shareholder Representative) or is otherwise unable or unwilling to appoint a successor then the successor Shareholder Representative shall be elected by a vote of a majority of the shares of Capital Stock then held by the Shareholder Representative as Selling Shareholders (or by the duly authorized action estate of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security Agreementa deceased Selling Shareholder).
Appears in 1 contract
Shareholder Representative. For purposes (a) By virtue of the approval of the Acquisition and this AgreementAgreement by the Shareholders, each of the Sky Shareholders hereby designate M▇▇shall be deemed to have agreed to appoint ▇▇▇▇ ▇▇▇▇▇▇ to serve as the sole and exclusive representative of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as its agent and attorney-in-fact fact, as the Shareholder Representative for and on behalf of the Sky Shareholders with respect to give and receive notices and communications, to authorize payment to any Indemnified Party from the performance Escrow Fund in satisfaction of his or her duties as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated claims by any act of any Sky ShareholderIndemnified Party, by operation of Lawto object to such payments, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, 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 Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, 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 Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to Purchaser; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. Notwithstanding the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute a vacancy in the proceeds position of Shareholder Representative may be filled by the holders of a majority in interest of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment Escrow Fund. No bond shall be required of the Shareholder Representative on behalf of the Sky Shareholders in connection with this AgreementRepresentative, the Merger Note, the Guaranty and the Security AgreementShareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders.
(b) The Shareholder Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky Shareholder shall otherwise exist against the Shareholder Representative. The Shareholder Representative shall not be liable to for any Sky act done or omitted hereunder as Shareholder relating Representative while acting in good faith and in the exercise of reasonable judgment. The Shareholders on whose behalf the Escrow Amount was contributed to the performance Escrow Fund shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties under this Agreement for hereunder, including the reasonable fees and expenses of any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken legal counsel retained by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The (“Shareholder Representative shall be indemnified and held harmless by Expenses”). Following the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason termination of the fact that Escrow Period, the Shareholder Representative was acting as resolution of all Unresolved Claims and the Shareholder Representative pursuant to this Agreement; providedsatisfaction of all claims made by Indemnified Parties for Losses, however, that the Shareholder Representative shall not be entitled have the right to indemnification hereunder recover Shareholder Representative Expenses from the Escrow Fund prior to any distribution to the extent it is finally determined in Shareholders, and prior to any such distribution, shall deliver to the Escrow Agent a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by certificate setting forth the Shareholder Representative constituted actual fraud Expenses actually incurred. A decision, act, consent or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by instruction of the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting Representative, including an amendment, extension or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason waiver of this Agreement or pursuant to Section 8.3 and Section 8.4 hereof, shall constitute a decision of the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker Shareholders and shall be entitled to final, binding and conclusive upon the Scheme Shareholders; and the Escrow Agent and Purchaser may rely upon any actions taken by such decision, act, consent or instruction of the Shareholder Representative as being the duly authorized action decision, act, consent or instruction of the Shareholders. The Escrow Agent and Purchaser are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security AgreementRepresentative.
Appears in 1 contract
Shareholder Representative. For purposes of this Agreement, (a) Helene Ploix (such person and any successor or successors being the Sky Shareholders hereby designate M"▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve Representative") shall act as the sole and exclusive representative of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder RepresentativePrincipal Company Shareholders, and the term “Shareholder Representative” as used herein shall be deemed authorized to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as agent and attorney-in-fact for and act on behalf of the Sky Principal Company Shareholders with respect and to the performance of his or her duties as the Shareholder Representative. This power of attorney take any and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents actions required or permitted to be given in connection with taken by the consummation of the transactions contemplated by Shareholder Representative under this Agreement and or the Merger Note, Guaranty and Security Agreement (including executing this Indemnity Escrow Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, any claims (including the settlement thereof) made by an Issuer Indemnified Party for indemnification or to be held harmless pursuant to this Article IX of the Agreement and with respect to take all any actions necessary or appropriate in the judgment of to be taken by the Shareholder Representative for pursuant to the accomplishment terms of the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take Indemnity Escrow Agreement. The Principal Company Shareholders shall be bound by all actions necessary or appropriate in the judgment of taken by the Shareholder Representative on behalf of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreementits capacity thereof.
(b) The Shareholder Representative shall at all times act in his or her capacity as Shareholder Representative in a manner that the Shareholder Representative believes in good faith to be in the best interest of the Principal Company Shareholders. Neither the Shareholder Representative nor any of its directors, officers, agents or employees shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement or the Indemnity Escrow Agreement, except in the case of its gross negligence, bad faith or willful misconduct. The Shareholder Representative may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Shareholder Representative shall not have no duties any duty to ascertain or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations to inquire as to the performance or liabilities on behalf observance of any Sky of the terms, covenants or conditions of this Agreement or the Indemnity Escrow Agreement. As to any matters not expressly provided for in this Agreement or the Indemnity Escrow Agreement, the Shareholder Representative shall otherwise exist not be required to exercise any discretion or take any action.
(c) Each Principal Company Shareholder severally shall indemnify and hold harmless and reimburse the Shareholder Representative from and against such Principal Company Shareholder's ratable share of any and all Losses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Indemnity Escrow Agreement, other than such Losses arising out of or resulting from the Shareholder Representative's gross negligence, bad faith or willful misconduct. The Each Principal Company Shareholder agrees that the Shareholder Representative may make claims first, against the Expense Escrow Shares, and second, against the Indemnity Escrow Shares, but solely to the extent any Indemnity Escrow Shares are available for transfer to the Shareholder Representative pursuant to Section 1.07(g) or (i) of the Indemnity Escrow Agreement, for any and all Losses against which the Shareholder Representative is to be indemnified, held harmless and reimbursed pursuant to this Section 9.04(c). In the event that the Expense Escrow Shares and, if available pursuant to Section 1.07(g) or (i) of the Indemnity Escrow Agreement, the Indemnity Escrow Shares are not, or the Shareholder Representative reasonably believes will not be, sufficient to indemnify, hold harmless and reimburse the Shareholder Representative pursuant to this Section 9.04(c), the Shareholder Representative may request (an "Additional Funding Request") that additional funds (the "Additional Funds") be deposited by the Principal Company Shareholders with the Expense Escrow Agent to be held pursuant to the terms of the Expense Escrow Agreement by delivery to the Principal Company Shareholders of a written notice (a "Funding Request Notice") making an Additional Funding Request. Each Funding Request Notice shall:
(i) state the amount of Additional Funds required, or estimated in the good faith judgment of the Shareholder Representative to be required, to hold harmless the Shareholder Representative pursuant to this Section 9.04(c) and/or to reimburse the Shareholder Representative for any expenses incurred in connection with the performance of its duties pursuant to Section 9.04;
(ii) state the pro rata share (which will be based on each Principal Company Shareholder's initial interest in the fund established pursuant to the Expense Escrow Agreement (the "Expense Escrow Fund")) of the Additional Funds (the "Pro Rata Amount") that each Principal Company Shareholder shall be required to deliver to the Expense Escrow Agent in the event that the Additional Fund Request is approved by the Principal Company Shareholders in accordance with this Section 9.04(c); and
(iii) specify in reasonable detail the nature and amount of the Losses incurred prior to the date of the Funding Request Notice and the intended use of the Additional Funds. In the event that the holders of a majority of the outstanding Company Shares held by the Principal Company Shareholders as of the Effective Date agree to the Additional Funding Request, all of the Principal Company Shareholders shall be deemed to have agreed to the Additional Funding Request and shall deliver to the Expense Escrow Agent for deposit into the Expense Escrow Fund either (i) cash in an amount equal to such Principal Company Shareholder's Pro Rata Amount or (ii) the number of shares of Issuer Common Stock equal to such Principal Company Shareholder's Pro Rata Amount divided by the Average Closing Price as of the earlier of (i) the date of such delivery to the Expense Escrow Agent and (ii) the date such Principal Company Shareholder mails or instructs its broker to deliver, to the Expense Escrow Agent such shares of Issuer Common Stock. Notwithstanding anything to the contrary contained herein, the Shareholder Representative shall not be liable to any Sky Principal Company Shareholder relating for taking or omitting to take any action in the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgmentevent that funds are not, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud reasonably believes that funds will not be, available to indemnify, hold harmless or were taken or not taken in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which reimburse the Shareholder Representative is made a party by reason of in accordance with this Section 9.04(c).
(d) Notwithstanding anything to the fact that contrary herein or in the Shareholder Representative was acting as the Shareholder Representative pursuant to this Indemnity Escrow Agreement; provided, however, that the Shareholder Representative shall not be entitled in any manner exercise, or seek to indemnification hereunder exercise, any voting power whatsoever with respect to shares of capital stock of the extent it is finally determined in a court Company or the Issuer now or hereafter owned of competent jurisdiction record or beneficially by clear and convincing evidence that the actions taken or not taken by any Principal Company Shareholder unless the Shareholder Representative constituted actual fraud or were taken or not taken is expressly authorized to do so in bad faitha writing signed by such Principal Company Shareholder. The In all matters relating to this Article IX, the Shareholder Representative shall be held harmless in acting upon any noticethe only party entitled to assert the rights of the Principal Company Shareholders, statement or certificate believed by and the Shareholder Representative to be genuine and to have been furnished by shall perform all of the appropriate person and in acting or refusing to act in good faith on any matterobligations of the Principal Company Shareholders hereunder. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker Issuer shall be entitled to rely upon any actions taken by on all statements, representations and decisions of the Shareholder Representative.
(e) Each Principal Company Shareholder shall deliver to the Shareholder Representative a power of attorney, substantially in the form of Exhibit M attached hereto, to appoint the Shareholder Representative as such Principal Company Shareholder's attorney in fact to perform any act required under this Agreement and the duly authorized action of Indemnity Escrow Agreement, subject to the terms hereof and thereof. Each Principal Company Shareholder hereby acknowledges and agrees that the Shareholder Representative may execute and deliver on such Principal Company Shareholder's behalf of each Sky Shareholder with respect to any matters set forth in this Agreementthe Expense Escrow Agreement and, upon such execution and delivery, the Merger Note, the Guaranty and the Security AgreementExpense Escrow Agreement shall be a binding obligation on such Principal Company Shareholder.
Appears in 1 contract
Shareholder Representative. For purposes (a) By virtue of this Agreementtheir approval of the Merger, the Sky Shareholders hereby designate M▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve Rights Holders, without any further action on the part of any Rights Holders, irrevocably constitute and appoint Elron Electronic Industries Ltd. as the sole and exclusive representative of the Shareholders Rights Holders (the “"Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative"), including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as agent and attorney-in-fact for and on behalf of each such Right Holder, and the Sky Shareholders with respect to the performance of his or her duties as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received taking by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power any and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement all actions and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries making of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents any decisions required or permitted to be given in connection with the consummation of the transactions contemplated taken by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims it under this Agreement, including the Merger Noteexercise of the power to (a) authorize delivery to Buyer and Sub of the Escrow Amount, the Guaranty or the Security Agreementany remaining portion thereof, in satisfaction of any Indemnification Claims made pursuant to Section 7.2(a) hereof, (ivb) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and and, if applicable, awards of arbitrators with respect to such claimsIndemnification Claims, (c) resolve any Indemnification Claims, (d) execute, perform and handle such actions as provided in and pursuant to the Escrow Agreement and Paying Agent Agreement, and to (e) take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give foregoing and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds all of the Merger Note other terms, conditions and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment limitations of this Agreement. Accordingly, the Shareholder Representative has unlimited authority and power to act on behalf of each Rights Holder with respect to this Agreement and the disposition, settlement or other handling of all Indemnification Claims, rights or obligations arising from and taken pursuant to this Agreement including, but not limited to, the authority and power to receive notices on behalf of the Sky Shareholders Rights Holders..
(b) Any notice provided to the Shareholder Representative shall be deemed to have been provided to all Rights Holders. The Rights Holders shall be bound by all actions taken by the Shareholder Representative in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative Buyer and Sub shall have no duties be entitled to rely on any action or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf decision of any Sky Shareholder shall otherwise exist against the Shareholder Representative. The Shareholder Representative shall not be liable incur no liability with respect to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions action taken or not taken suffered by the Shareholder Representative constituted actual fraud or were taken or not taken him in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting reliance upon any notice, direction, instruction, consent, statement or certificate other document believed by the Shareholder Representative it to be genuine and to have been furnished signed by the appropriate person proper Person (and in acting shall have no responsibility to determine the authenticity thereof), nor for any other action or refusing to act in good faith on any matterinaction, except its own willful misconduct. The In all questions arising under this Agreement, the Shareholder Representative (in his capacity as such) may rely on the advice of counsel, and the Shareholder Representative shall not be liable to Incumaker the Rights Holders for anything done, omitted or the Surviving Corporation suffered in good faith by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder Representative based on such advice. The Shareholder Representative shall not be required to take any action involving any expense unless the payment of such expense is made or otherwiseprovided for in a manner satisfactory to it.
(c) Incumaker The Rights Holders shall jointly and severally indemnify and hold harmless the Shareholder Representative from and against any and all Losses (including reasonable legal and expert fees and expenses incurred by the Shareholder Representative in investigating or defending (including any appeal) any claim for indemnification made against the Rights Holders pursuant to a Indemnification Claim, arising out of and in connection with its activities as Shareholder Representative under this Agreement or any Transaction Document or any schedule, certificate or other document delivered pursuant hereto or thereto or in connection with the transactions contemplated hereby or thereby.
(d) At any time, the Majority Shareholders can appoint a new Shareholder Representative (whether as a result of the resignation of the existing Shareholder Representative which may be made upon a 30-day prior notice to the Majority Shareholders or otherwise) by written consent by sending notice and a copy of the written consent appointing such new Shareholder Representative signed by such holders to Buyer. Such appointment shall be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer and Sub (or, if after the Effective Time, the Surviving Corporation).
(e) The Shareholder Representative, in its capacity as such, shall not have any liability with respect to Buyer, Sub or any of the other Buyer Indemnitees under or in connection with this Agreement.
(f) All decisions, actions, consents and instructions by the Shareholder Representative shall be binding upon all the Rights Holders. Buyer and Sub shall be entitled to rely upon on any actions taken by decision, action, consent or instruction of the Shareholder Representative as being the duly authorized action decision, action, consent or instruction of the Rights Holders and Buyer and Sub are hereby relieved from any liability to any Person for acts done by them in accordance with any such decision, act, consent or instruction.
(g) Notwithstanding anything to the contrary in this Agreement but subject to any Tax withholding requirement under Applicable Laws, on the Effective Time, the amount of the Shareholder Representative Fund shall be deposited by Buyer with the Paying Agent (and not to the Rights Holders), such amount being intended for use by the Shareholder Representative, and released to it by the Paying Agent from time to time at its request, in its discretion, in covering out-of-pocket expenses incurred (or to be incurred) by it (if at all) in carrying out its duties hereunder. Such amount shall be deducted from the Closing Payment payable to the Rights Holders, based on behalf their respective Pro-Rata Portions of each Sky such amounts. Payments to the Shareholder with respect Representative shall be made to any matters a bank account specified by it in writing. As set forth in this the Paying Agent Agreement and the Escrow Agreement, the Shareholder Representative shall have the authority to instruct the Paying Agent and/or the Escrow Agent, prior to the distribution of any portion of the Merger NoteConsideration to the Rights Holders in accordance with the provisions hereof and thereof, to withhold a portion of such amount or pay a portion of any such amount (as applicable) to the Shareholder Representative, such portion being intended for use by the Shareholder Representative, in its discretion, in covering out-of-pocket expenses incurred or reasonably expected to be incurred by it (if at all) in carrying out its duties hereunder, and exceeding the Shareholder Representative Fund (any such amounts shall be deducted from all Rights Holders Pro-Rata between them). The Shareholder Representative may instruct the Paying Agent to invest and handle the amounts of the Shareholder Representative Fund and any additional amounts so withheld by the Paying Agent as provided in this Section 7.6(g) until the allocation or payment thereof, as the case may be, according to its commercial reasonable discretion. Promptly after the later of the Escrow Termination Date and last Earnout Payment Date, or, if Indemnification Claims are outstanding on such date, promptly after the date of settlement of all such claims, the Guaranty Shareholder Representative, through the Paying Agent, shall allocate and pay any remaining amount of the Security AgreementShareholder Representative Fund and of any excess amounts so withheld by the Paying Agent and any interest accrued thereon, to the Rights Holders, based on their Pro-Rata Portions, subject to any Tax withholding requirement under Applicable Laws, in the same manner set forth in Section 2.6.
Appears in 1 contract
Sources: Merger Agreement (Alvarion LTD)
Shareholder Representative. For purposes (a) The Legacy Shareholders, by the approval and adoption of this Agreement in the Joinder Agreement, authorize the Shareholder Representative (i) to give and receive all notices required to be given under this Agreement or any other related agreement, and (ii) to take any additional action as is contemplated to be taken by or on behalf of the Legacy Shareholders by the terms of this Agreement.
(b) All decisions and actions by the Shareholder Representative under this Agreement shall be binding upon all of the Legacy Shareholders, and no Legacy Shareholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) The Shareholder Representative shall not have any liability to any to any Party for any act done or omitted as Shareholder Representative while acting in good faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Shareholders shall severally indemnify the Shareholder Representative and hold him harmless against any Loss incurred without bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of his or her duties, including any out-of-pocket costs and expenses and legal fees and other legal costs incurred by the Shareholder Representative.
(d) The Shareholder Representative shall have full power and authority on behalf of each Legacy Shareholder to take any and all actions on behalf of, execute any and all instruments on behalf of, and execute or waive any and all rights of, the Legacy Shareholders under this Agreement.
(e) By his, her, or its approval of this Agreement, each Company Shareholder agrees, in addition to the Sky foregoing, that: (i) Acquiror and any other Acquiror Indemnified Party shall be entitled to rely conclusively on the instructions and decisions of the Shareholder Representative as to (A) the settlement of any claims for indemnification by Acquiror, or (B) any other actions required or permitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, as applicable, and no Party shall have any cause of action against Acquiror or such Acquiror Indemnified Party for any action taken by Acquiror or such Acquiror Indemnified Party in reliance upon the instructions or decisions of the Shareholder Representative; (ii) all actions, decisions and instructions of the Shareholder Representative shall be conclusive and binding upon the Legacy Shareholders hereby designate M▇▇and no Company Shareholder shall have any cause of action against the Shareholder Representative for any action taken, decision made or instruction given by the Shareholder Representative under this Agreement, except for bad faith by the Shareholder Representative in connection with the matters described in this Section; (iii) the provisions of this Section are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Shareholder may have in connection with the contemplated transactions; and (iv) remedies available at law for any breach of the provisions of this Section are inadequate; therefore, Acquiror shall be entitled to seek temporary and permanent injunctive relief without the necessity of proving damages if Acquiror brings an action to enforce the provisions of this Section.
(f) A▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, who is serving as the Shareholder Representative may cease to serve as a representative for Legacy Shareholders (upon no less than thirty (30) days prior notice to Acquiror and each Company Shareholder). In the sole and exclusive representative event of the Shareholders (the “Shareholder Representative”) with respect to those provisions death or permanent disability of this Agreement that contemplate action by the Shareholder Representative, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇A▇▇▇▇ ▇▇▇▇▇▇▇▇, or if A▇▇▇▇ at any time ▇▇▇▇▇▇▇▇ shall give notice of his intent to resign, or is unable, due to incapacity or otherwise, unwilling to serve as in the capacity of Shareholder Representative , or resigns is removed as Shareholder Representative, then [Name] shall serve Legacy Shareholders, collectively (voting together as a single class) shall, by written notice to Acquiror, appoint a successor Shareholder RepresentativeRepresentative as soon as practicable, and in no event later than thirty (30) days following such death, permanent disability or notice of intent to resign. Each successor In addition, the individual serving as the Shareholder Representative, if required Representative may be replaced from time to serve, shall sign an acknowledgment in writing agreeing to perform and be bound time by all the approvals of the provisions of this Agreement applicable Legacy Shareholders upon not less than ten (10) days prior written notice to the Shareholder RepresentativeRepresentative and Acquiror. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein in this Agreement shall be deemed to include any such successor Shareholder Representative.
(ag) The Shareholder Representative is hereby constituted and appointed as agent and attorney-in-fact for and on behalf of the Sky Shareholders with respect to the performance of his or her duties as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement Section shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries successors of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendmentseach Legacy Shareholder, and other documents required any references in this Agreement to a Legacy Shareholder or permitted the Legacy Shareholders shall mean and include the successors to be given in connection with the consummation rights of the transactions contemplated by this Agreement and the Merger NoteLegacy Shareholders, Guaranty and Security Agreement (including executing this Agreementwhether under testamentary disposition, the Merger Note, the Guaranty laws of descent and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky Shareholder shall otherwise exist against the Shareholder Representative. The Shareholder Representative shall not be liable to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder distribution or otherwise.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative as the duly authorized action of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security Agreement.
Appears in 1 contract
Sources: Business Combination Agreement (DUET Acquisition Corp.)
Shareholder Representative. For purposes The holders of the outstanding shares of the capital stock of the Company, by virtue of the execution and delivery of this Agreement, the Sky Shareholders hereby designate M▇▇▇▇▇▇ ▇▇▇▇▇▇ will be deemed to serve have irrevocably constituted and appointed, effective as the sole and exclusive representative of the Shareholders date of this Agreement, ________ (together with his permitted respective successors, collectively, the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative), including ancillary agreements such as the Merger Note, Guaranty their true and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as lawful agent and attorney-in-fact for fact, and on behalf the Shareholder Representative, by his execution of this Agreement shall be deemed to have accepted such appointment, to enter into any agreement in connection with the transactions contemplated by this Agreement, to exercise all or any of the Sky Shareholders powers, authority and discretion conferred on him under any such agreement, to act as proxy for each Company Shareholder in connection with any shareholder approvals required in connection with the transactions contemplated by this Agreement, to waive or modify any terms and conditions of any such agreement, to give and receive notices on their behalf, and to be their exclusive representative with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated by any such agreement, including, without limitation, the performance assertion, prosecution, defense, settlement or compromise of his any claim, action or her duties as proceeding for which any Company Shareholder or SOLS may be entitled to indemnification and the Shareholder RepresentativeRepresentative agrees to act as, and to undertake the duties and responsibilities of, such agent and attorney-in-fact. This power of attorney is coupled with an interest and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky Shareholder shall otherwise exist against the Shareholder Representativeirrevocable. The Shareholder Representative shall not be liable to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions action taken or not taken by the him in his capacity as Shareholder Representative constituted actual fraud either (i) with the consent of Shareholders who, as of the date of this Agreement, own a majority in number of the outstanding shares of Company Stock (considered on an as converted basis), or were taken or not taken (ii) in bad faiththe absence of his own willful misconduct. The If the Shareholder Representative shall be indemnified unable or unwilling to serve in such capacity, his successor shall be named by those persons holding a majority of the shares of Company Common Stock outstanding immediately prior to the Closing Date who shall serve and held harmless by exercise the Sky Shareholders against all losses, including costs powers of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant hereunder. Solely with respect to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative in his capacity as the duly authorized action of such, the Shareholder Representative on behalf shall have no liability to SOLS, or any of each Sky its affiliates except for claims based upon fraud by the Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security Agreement.Representative. [SIGNATURES CONTINUED ON NEXT PAGE]
Appears in 1 contract
Sources: Share Acquisition Agreement
Shareholder Representative. For purposes of this Agreement, the Sky Shareholders hereby designate M▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as the sole and exclusive representative of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as agent and attorney-in-fact for and on behalf of the Sky Shareholders with respect In order to the performance of his or her duties as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of administer the transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Escrow Agreement, the Merger Noteincluding, without limitation, the Guaranty indemnification obligations of the Shareholders under Section 6.03, the Shareholders hereby designate and appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative for this Agreement and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements Escrow Agreement and compromises of, assume the defense of claims, as attorney-in-fact and demand arbitration agent for and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders each Shareholder (in connection with this Agreementsuch capacity, the Merger Note, the Guaranty "Shareholder Representative"). Said power of attorney shall be coupled with an interest and the Security Agreementshall be irrevocable.
(b) Each Shareholder hereby authorizes the Shareholder Representative to represent each Shareholder, and their successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow Agreement and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Shareholders by the Shareholder Representative pursuant to this Agreement and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect hereto, shall be binding upon all the Shareholders as if they had taken such action themselves, and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same. The Shareholder Representative shall have incur no duties liability to the Shareholders with respect to any action taken or responsibilities except those expressly set forth hereinsuffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and no implied covenantsduly authorized, functionsnor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 6.03, responsibilities, duties, obligations including the defense or liabilities on behalf settlement of any Sky Shareholder shall otherwise exist against claims and the making of payments with respect thereto, except to the extent resulting from the Shareholder Representative's own willful misconduct or negligence. The Shareholder Representative may, in all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to the Shareholders.
(e) The Surviving Corporation, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions of the Shareholder Representative with respect to this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense or settlement of any Sky claims or the making of payments by the Shareholder relating Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the performance extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative’s duties . If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except Section is not subject to the extent it is finally determined limitations set forth in a court of competent jurisdiction by clear and convincing evidence Section 6.03. The Shareholders hereby confirm that the actions taken or not taken Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative constituted actual fraud or were taken or not taken therefor, a percentage of any expenses equal to such Shareholder's ownership interest in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder Company immediately prior to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faithMerger. The Shareholder Representative shall be held harmless in acting upon any notice[SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matterTHE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative as the duly authorized action of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement▇▇▇▇▇▇▇▇, the Merger Note▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, the Guaranty and the Security Agreement.▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Sources: Merger Agreement (Interliant Inc)
Shareholder Representative. For purposes (a) By virtue of the approval of the Merger and this Agreement by the Indemnifying Parties and/or entering into a Joinder Agreement, each of the Sky Shareholders hereby designate MIndemnifying Parties shall be deemed to have agreed to appoint ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ to serve as the sole and exclusive representative of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative, including ancillary agreements such as the Merger Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby constituted and appointed as its agent and attorney-in-fact as the Shareholder Representative for and on behalf of the Sky Shareholders with respect Indemnifying Parties to the performance of his do and perform every act and thing reasonably necessary or her duties as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoing, the Shareholder Representative has full power and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents desirable to be executed and delivered by the Shareholders done in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection connections with the consummation of the transactions contemplated by this Agreement the Agreement, including without limitation:
(i) to give and the Merger Note, Guaranty receive notices and Security Agreement (including executing communications under this Agreement, the Merger NoteEscrow Agreement and any Expense Escrow Agreement,
(ii) to determine the presence (or absence) of claims for payment pursuant to this Agreement, the Guaranty Escrow Agreement and the Security Expense Escrow Agreement, and to authorize delivery to the Indemnified Parties of cash and Escrow Shares from the Escrow Fund in satisfaction of claims by Indemnified Parties, and to make payments from the Shareholder Representative Fund;
(iii) receive service of process in connection with any to object to and defend against such claims under this Agreement, the Merger Noteand to agree to, the Guaranty or the Security Agreementnegotiate, enter into settlements, adjustments and compromises of, and comply with orders of courts and awards with respect to such claims;
(iv) agree toundertake legal action with respect to such claims, to assert, negotiate, enter into settlements and compromises ofof any other claim by any Indemnified Party against any Indemnifying Party or by any such Indemnifying Party against any Indemnified Party or any dispute between any Indemnified Party and any such Indemnifying Party;
(v) to engage and employ agents and representatives (including accountants, assume legal counsel and other professionals) and to incur such other expenses as the defense Shareholder Representative reasonably deems necessary or prudent in connection with the administration of claims, and demand arbitration and comply with orders his duties hereunder;
(vi) to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of courts and awards of arbitrators with respect to such claims, and claims by any Indemnified Party; and
(vii) to take all actions necessary that are either (A) deemed necessary, desirable or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoingforegoing or (B) specifically mandated by the terms of this Agreement, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute including entering into the proceeds of the Merger Note Escrow Agreement and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate Expense Escrow Agreement; in the judgment of the Shareholder Representative on behalf of the Sky Shareholders in connection with each case relating to this Agreement, the Merger Note, the Guaranty Escrow Agreement and the Security Agreement.
(b) The Shareholder Representative shall have no duties Expense Escrow Agreement or responsibilities except those expressly set forth herein, the transactions contemplated hereby and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky Shareholder shall otherwise exist against the Shareholder Representativethereby. The Shareholder Representative shall not be liable to may resign as Shareholder Representative at any Sky Shareholder relating time with or without cause by giving 30 days prior written notice to the performance holders of interest of the Shareholder Representative’s duties under this Agreement for any errors in judgmentEscrow Fund, negligenceParent and Escrow Agent, oversightsuch resignation to be effective no sooner than 30 days following the date such notice is given. In addition, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken such agency may be changed by the Shareholder Representative constituted actual fraud or were taken or Indemnifying Parties from time to time upon not taken in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim less than 30 days prior written notice to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this AgreementParent; provided, however, that the Shareholder Representative may not be removed or any change to the agency made unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent or such change. A vacancy in the position of Shareholder Representative may be filled by the holders of two-thirds in interest of the Escrow Fund. In the event of the death, disability, resignation or removal of the Shareholder Representative, a successor or replacement Shareholder Representative shall be appointed no later than ten days following the last date of service of the Shareholder Representative that is being replaced. In the event that a successor Shareholder Representative is not appointed within such ten day period, the Parent, Escrow Agent and other parties to the Escrow Agreement and the Expense Escrow Agreement shall be entitled to indemnification hereunder to rely on any action of the extent it is finally determined holders of a two-thirds interest of the Escrow Fund as the action of all of the holders in a court interest of competent jurisdiction by clear the Escrow Fund, and convincing evidence that such two-thirds interest of holders shall have all of the actions taken or not taken by rights and duties of the Shareholder Representative constituted actual fraud hereunder and under the Escrow Agreement and Expense Escrow Agreement. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for his services. Notices or were taken communications to or not taken from the Shareholder Representative shall constitute notice to or from the Indemnifying Parties.
(b) A decision, act, consent or instruction of the Shareholder Representative shall constitute a decision of all the holders in bad faithinterest of the Escrow Fund for whom a portion of the Escrow Amount or Expense Escrow Amount otherwise issuable to them are deposited in the Escrow Fund and the Shareholder Representative Fund and shall be final, conclusive and binding upon each of such holders in interest of the Escrow Fund, and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each every such Shareholder and Optionholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative
(c) The Shareholder Representative shall not, by reason of this Agreement, have a fiduciary relationship in respect of any Shareholder or Optionholder. The Shareholder Representative shall not be held liable for any act done or omitted hereunder as Shareholder Representative or by any agent employed by him, except to the extent that he is determined to have acted with gross negligence or willful misconduct. Any act done or omitted pursuant to the advice of counsel shall be conclusive evidence that the Shareholder Representative did not act with gross negligence or willful misconduct. The Indemnifying Parties on whose behalf the Escrow Amount was contributed to the Escrow Fund shall, severally and not jointly (based on their Pro Rata Portion), indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, Liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in acting upon connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any noticelegal counsel retained by the Shareholder Representative. In the event that the Shareholder Representative pays any amounts to any Person in connection with the transactions contemplated by this Agreement or the Escrow Agreement or the Expense Escrow Agreement, statement or certificate believed incurs any liability for which he is entitled to indemnification by the Recipients under this Agreement, the Escrow Agreement or the Expense Escrow Agreement, or incurs any expenses (including attorneys or accounting fees) pursuant thereto or in connection therewith or pays any fees or taxes on behalf of the Shareholders or Optionholders thereunder (a “Shareholder Representative Expense”), the Shareholder Representative shall be reimbursed for such Shareholder Representative Expenses (or may have funds to cover such expenses advanced) from the Shareholder Representative Fund Amount, which will be deposited by Parent into an account established under the Expense Escrow Agreement for use by the Shareholder Representative (the “Shareholder Representative Fund”).
(d) The Shareholder Representative Fund shall be available to compensate the Shareholder Representative for any Shareholder Representative Expenses and to pay any third party expenses incurred in connection with the defense, investigation or settlement of any claim from an Indemnified Party or any Third Party Claim under or related to this Agreement, as well as any costs or expenses associated with the Shareholder Representative Fund. At any time and from time to time, the Shareholder Representative may deliver to the Escrow Agent written instructions instructing the Escrow Agent to distribute all or a portion of the Expense Escrow Amount. In accordance with the terms set forth in the Expense Escrow Agreement, the Escrow Agent shall disburse to the Shareholder Representative (or any Person who the Shareholder Representative designates as the recipient of such disbursement in his written instructions) funds from the Shareholder Representative Fund in an amount and in the manner set forth in such written instructions (up to the amount that is available in the Shareholder Representative Fund). For the avoidance of doubt, it is hereby acknowledged and agreed that: (A) the Escrow Agent shall be entitled to rely conclusively on the written instructions of the Shareholder Representative with respect to the Shareholder Representative Fund; (B) Parent’s consent shall not be required to release any funds from the Shareholder Representative Fund and Parent shall have no right or standing to object to the release or holding of the Shareholder Representative Fund; and (C) the Shareholder Representative shall have the sole authority to instruct the release or holding of the Shareholder Representative Fund. If the Shareholder Representative shall have delivered written instructions to the Escrow Agent instructing the Escrow Agent to release funds from the Shareholder Representative Fund to the Shareholder Representative and there are not sufficient funds in the Shareholder Representative Fund to cover such requested amount, the difference between the amount requested to be released by the Shareholder Representative from the Shareholder Representative Fund to the amount actually released to the Shareholder Representative may be recovered by the Shareholder Representative from the Escrow Fund amounts otherwise distributable to the Indemnifying Parties pursuant to the Escrow Agreement at the time of such distribution; provided, that while this section allows the Shareholder Representative to be genuine paid from the Escrow Fund, this does not relieve the Shareholders and Optionholders from their obligation to have been furnished by promptly pay their pro rata portion of any such losses, liabilities or expenses (based on the appropriate person and in acting or refusing to act in good faith on any matter. The Pro Rata Portion, nor does it prevent the Shareholder Representative (in his capacity as such) from seeking any remedies available to it at law or otherwise. Prior to any such distribution from the Escrow Fund, the Shareholder Representative shall not be liable deliver to Incumaker the Escrow Agent a certificate setting forth the Shareholder Representative Expenses actually incurred. A written and signed decision, act, consent or the Surviving Corporation by reason instruction of this Agreement or the performance the Shareholder Representative’s duties hereunder , including an amendment, extension or otherwise.
(c) Incumaker waiver of this Agreement, shall constitute a decision of the Indemnifying Parties and shall be entitled to final, binding and conclusive upon the Indemnifying Parties, and the Escrow Agent and Parent may rely upon any actions taken by such decision, act, consent or instruction of the Shareholder Representative as being the duly authorized action decision, act, consent or instruction of the Indemnifying Parties. The Escrow Agent and Parent are hereby relieved from any Liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security AgreementRepresentative.
Appears in 1 contract
Sources: Merger Agreement (Rambus Inc)
Shareholder Representative. For purposes (1) By approving this Merger Agreement and accepting the Merger Consideration, each of this Agreement, the Sky Shareholders hereby designate Mirrevocably makes, constitutes, and appoints ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as the sole representative, agent and exclusive representative true and lawful attorney in fact of and for each of the Shareholders in connection with this Agreement (the “"Shareholder Representative”"). Each of the Shareholders hereby authorizes and empowers the Shareholder Representative to make or give any approval, waiver, request, consent, instruction or other communication on behalf of each of the Shareholders as each such Shareholder could do for himself, itself or herself, including with respect to the amendment of any provision of this Agreement. Each of the Shareholders further authorizes and empowers the Shareholder Representative to (i) receive all demands, notices or other communications directed to such Shareholder under this Agreement and to take any action (or to determine to refrain from taking any action) with respect thereto as he may deem appropriate as effectively as such Shareholder could act for himself, itself or herself (including, without limitation, the settlement or compromise of any dispute or controversy) and (ii) execute and deliver all instruments and documents of every kind incident to those provisions of this Agreement that contemplate action by the foregoing with the same effect as if such Shareholder Representativehad executed and delivered such instruments and documents personally. Accordingly, including ancillary agreements such as any demands, notices or other communications directed to the Merger Note, Guaranty and Security Agreement; provided, however, that Shareholders hereunder shall be deemed effective if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable given to the Shareholder Representative. Each Upon the death, resignation or incapacity of the Shareholder Representative, or at any other time, a successor may be appointed by the vote of the holders of a majority of the Shares outstanding immediately prior to the Effective Time, and such successor shall agree in writing to accept such appointment in accordance with the terms hereof. Notice of the selection of a successor Shareholder Representative shall have all of appointed in the power, authority, rights and privileges conferred by manner permitted in this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein Section 14.11 shall be deemed provided to include any successor Shareholder Representative▇▇▇▇ and Merger Corp. promptly.
(a2) The Shareholder Representative is hereby constituted and appointed as agent and attorney-in-fact for and on behalf of the Sky Shareholders with respect to the performance of his or her duties as the Shareholder Representative. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the foregoingforegoing paragraph (1), if ▇▇▇▇, Merger Corp. or any of the other Persons specified in Section 11.1 asserts a claim for indemnification based upon the provisions of Section 11, the notice requirements of Sections 11.3 and 14.8 shall be satisfied by delivery of any required notice to the Shareholder Representative has full power as representative of and authority, on behalf of each Sky Shareholder and such Sky Shareholder’s successors and assignsof the Shareholders, to: (i) interpret the terms and provisions of this Agreement and the documents Shareholder Representative shall exercise all rights of the Shareholders, as indemnifying parties under Section 11, and shall cause all obligations of the Shareholders, as indemnifying parties under Section 11, to be executed and delivered by performed. Each of the Shareholders in connection herewith, including the Merger Note, Guaranty and Security Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted agrees to be given in connection with the consummation of the transactions contemplated bound by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement, the Merger Note, the Guaranty and the Security Agreement, (iii) receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment and failures to act of the Shareholder Representative for the accomplishment of in accordance with this Section 14.11. Notwithstanding the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute it shall be the proceeds obligation of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative shall have no duties or responsibilities except those expressly set forth hereineach Shareholder, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Sky Shareholder shall otherwise exist against the Shareholder Representative. The Shareholder Representative shall not be liable to any Sky Shareholder relating to the performance of the Shareholder Representative’s duties under , to indemnify ▇▇▇▇, Merger Corp. and the other Persons specified in Section 11.1 based upon the provisions of Section 11. By approving this Merger Agreement for and by accepting the Merger Consideration, each Shareholder hereby agrees to indemnify and to save and hold harmless the Shareholder Representative from any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken liability incurred by the Shareholder Representative constituted actual fraud based upon or were taken arising out of any act, whether of omission or not taken in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all lossescommission, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; providedthe authority herein granted, howeverother than acts, that whether of omission or commission, of the Shareholder Representative shall not be entitled to indemnification hereunder to that constitute gross negligence or willful misconduct in the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken exercise by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be held harmless in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on any matter. The Shareholder Representative (in his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative as the duly authorized action of the Shareholder Representative on behalf of each Sky Shareholder with respect to any matters set forth in this Agreement, the Merger Note, the Guaranty and the Security Agreementauthority herein granted.
Appears in 1 contract
Sources: Merger Agreement (Gray Communications Systems Inc /Ga/)