Shareholder Representatives. (a) Each of the Shareholder Representatives is hereby appointed as agent and attorney-in-fact, for and on behalf of each Indemnifying Party, to give and receive notices and communications related to claims for Losses, to authorize payment to the order of an Indemnified Party from the Escrow Fund in satisfaction of claims by an Indemnified Party, to object to and defend against such claims, to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representatives for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Indemnifying Parties from time to time upon not less than 30 days prior written notice to Parent; provided, however, that a Shareholder Representative may not be removed unless holders of a sixty percent (60%) interest in the Escrow Fund agree to such removal; provided that if such removal results in there being no Shareholder Representatives, then the removal shall not be effective until the Shareholders shall have appointed a substituted agent. A Shareholder Representative may resign at any time upon thirty (30) days advance notice to Parent, the Escrow Agent and the other Shareholder Representatives. A vacancy in a position of Shareholder Representative may be filled by holders of sixty percent (60%) interest in the Escrow Fund. No bond shall be required of the Shareholder Representatives, and the Shareholder Representatives shall not receive any compensation for their services. Notices or communications to or from the Shareholder Representatives shall constitute notice to or from the Indemnifying Parties. Only actions taken by a majority of the Shareholder Representatives shall be deemed as actions taken by the Shareholder Representatives in connection with the obligations set forth in this Agreement. (b) The Shareholder Representatives shall not be liable for any act done or omitted hereunder as representatives of the Indemnifying Parties while acting in good faith even though such act or omission constitutes negligence on the part of such Shareholder Representative. The Shareholder Representatives may engage attorneys, accountants and other professionals and experts. Each Shareholder Representative may in good faith rely conclusively on information, reports, statements, opinions, including financial statements, about the Company, the Surviving Company or another Person, that were prepared or presented by (i) one or more officers or employees of the Company or Surviving Company, or (ii) legal counsel, public accountants, investment bankers or other Persons as to matters the Shareholder Representative believes in good faith are within the Person’s knowledge, professional or expert competence. Any action taken by a Shareholder Representative based on such reliance shall be deemed conclusively to have been taken in good faith and in full satisfaction of the duties of such Shareholder’s Representative’s duties. The Indemnifying Parties on whose behalf the Escrow Amount was contributed to the Escrow Fund shall indemnify the Shareholder Representatives and hold the Shareholder Representatives harmless against any loss, liability or expense incurred without bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representatives’ duties hereunder, including the Shareholder Representatives’ obligations to the Escrow Agent hereunder and the reasonable fees and expenses of any legal counsel retained by the Shareholder Representatives. The Shareholder Representatives have only the duties expressly stated in this Agreement and the Escrow Agreement, and shall have no other duty, express or implied. The Shareholder Representatives are not fiduciaries of the Indemnifying Parties. The Shareholder Representatives have no responsibility or liability for any representation, warranty or covenant of the Company, the Surviving Company, the Parent or the Sub except, if applicable, in their capacity as Indemnifying Parties. (c) A decision, act, consent or instruction from a majority of the Shareholder Representatives, including an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and Section 8.4 hereof, shall constitute a decision of the Indemnifying Parties and shall be final, binding and conclusive upon the Indemnifying Parties, and the Escrow Agent and the Indemnified Party may rely upon any such decision, act, consent or instruction of a majority of the Shareholder Representatives as being the decision, act, consent or instruction of the Indemnifying Parties. The Escrow Agent and Indemnified Party 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 Representatives. Notwithstanding any other provision in this Agreement or the Escrow Agreement, the Shareholder Representatives shall have no authority to (a) bind any former Shareholder or holder of Company Options to any liability that is not satisfied solely from the Escrow Fund and the Expense Reserve or (b) to change or agree to change any provision of this Article VII or of the Escrow Agreement in any manner adverse to any former Shareholder or holder of Company Options without, in either case, the express written consent of such affected former Shareholder or holder of Company Options. (d) The Shareholder Representatives shall have reasonable access to information about the Surviving Company and the reasonable assistance of the Surviving Company’s officers and employees for the purpose of performing its duties and exercising its rights hereunder, provided that the Shareholder Representatives shall treat confidentially and not disclose any nonpublic information from or about the Surviving Company to anyone (except on a need to know basis to counsel, witness and experts necessary to perform their duties hereunder who agree to treat such information confidentially). (e) According to the terms of the Escrow Agreement, the Shareholder Representatives shall be entitled to withhold from and use to pay their expenses, interest earned on the Escrow Fund and from amounts to be distributed from the Escrow Fund to the Indemnifying Parties a portion of the Escrow Fund that is equal to the reasonable estimated expenses to be incurred by the Shareholder Representatives as specified in a Certificate to be delivered to the Escrow Agent. The Shareholder Representatives shall be entitled to disburse from the Expense Reserve money for expenses incurred by the Shareholder Representatives in the performance of their duties.
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Shareholder Representatives. (a) Each 7.1 The Shareholder Representatives shall have full power and authority to represent all of the Shareholder Representatives is hereby appointed as agent and attorney-in-fact, for and on behalf of each Indemnifying Party, to give and receive notices and communications related to claims for Losses, to authorize payment to the order of an Indemnified Party from the Escrow Fund in satisfaction of claims by an Indemnified Party, to object to and defend against such claims, to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts Holders with respect to such claims, and all matters arising under this Escrow Agreement (except that the Holders shall retain the right to take all other actions that are either (i) necessary or appropriate in vote the judgment of the Shareholder Representatives for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this AgreementEscrowed Shares). Such agency may be changed by the Indemnifying Parties from time to time upon not less than 30 days prior written notice to Parent; provided, however, that a Shareholder Representative may not be removed unless holders of a sixty percent (60%) interest in the Escrow Fund agree to such removal; provided that if such removal results in there being no Shareholder Representatives, then the removal shall not be effective until the Shareholders shall have appointed a substituted agent. A Shareholder Representative may resign at any time upon thirty (30) days advance notice to Parent, the Escrow Agent and the other Shareholder Representatives. A vacancy in a position of Shareholder Representative may be filled by holders of sixty percent (60%) interest in the Escrow Fund. No bond shall be required of the Shareholder Representatives, and the Shareholder Representatives shall not receive any compensation for their services. Notices or communications to or from the Shareholder Representatives shall constitute notice to or from the Indemnifying Parties. Only actions taken by a majority of the Shareholder Representatives shall be deemed as All actions taken by the Shareholder Representatives hereunder shall be conclusive and binding upon the Holders as if expressly confirmed and ratified in writing by each of them. Without limiting the generality of the foregoing, the Shareholder Representatives shall have full power and authority on behalf of all of the Holders to interpret all of the terms and provisions of this Escrow Agreement, to give all approvals and take any other actions with respect to the Holders in connection with the obligations set forth subject matter of this Escrow Agreement and to consent to any amendment hereof. The Holders will have the right to exercise any and all rights to vote (including, if necessary, directing the Escrow Holder to vote) the Escrow Shares deposited in the Escrow Fund for their account so long as such Escrow Shares are held in the Escrow Fund and have not been released to the Indemnified Parties as provided herein and the Indemnified Parties will take all steps necessary to allow the exercise of such rights. While the Certificates representing, and the stock powers for, Escrow Shares remain in the Escrow Holder's possession pursuant to this Escrow Agreement.
, the Holders will (bsubject to the provisions of Sections 3.4 and 3.5 of this Escrow Agreement) retain and be able to exercise all other incidents of ownership of the Escrow Shares that are not inconsistent with the terms and conditions of this Escrow Agreement. Purchaser may deal solely with and rely solely upon the Shareholder Representatives as the representatives of all the Holders. The Shareholder Representatives shall incur no liability to the Holders except by reason of their willful misconduct or gross negligence. Each of the Shareholder Representatives may resign at any time and be relieved of his duties as Shareholder Representative, in which case a successor Shareholder Representative shall be elected as provided in Section 7.3. The Shareholders Representatives' appointment and authority will survive the death, incapacity or incompetence of any Holder. The Shareholder Representatives shall not be liable to any party hereto for any act done which they may do or omitted omit to do hereunder as representatives of the Indemnifying Parties while acting in good faith even though such act or omission constitutes negligence on the part of such Shareholder Representative. The Shareholder Representatives may engage attorneys, accountants and other professionals and experts. Each Shareholder Representative may in good faith rely conclusively on information, reports, statements, opinions, including financial statements, about the Company, the Surviving Company or another Person, that were prepared or presented by (i) one or more officers or employees of the Company or Surviving Company, or (ii) legal counsel, public accountants, investment bankers or other Persons as to matters the Shareholder Representative believes in good faith are within the Person’s knowledge, professional or expert competence. Any action taken by a Shareholder Representative based on such reliance shall be deemed conclusively to have been taken in good faith and in full satisfaction of the duties of such Shareholder’s Representative’s duties. The Indemnifying Parties on whose behalf the Escrow Amount was contributed to the Escrow Fund shall indemnify the Shareholder Representatives and hold the Shareholder Representatives harmless against any loss, liability or expense incurred without bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representatives’ duties hereunder, including the Shareholder Representatives’ obligations to the Escrow Agent hereunder and the reasonable fees and expenses of any legal counsel retained by the Shareholder Representatives. The Shareholder Representatives have only the duties expressly stated in this Agreement and the Escrow Agreement, and shall have no other duty, express or implied. The Shareholder Representatives are not fiduciaries of the Indemnifying Parties. The Shareholder Representatives have no responsibility or liability for any representation, warranty or covenant of the Company, the Surviving Company, the Parent or the Sub except, if applicable, in their capacity as Indemnifying Partiesfaith.
(c) A decision, act, consent or instruction from a majority of the Shareholder Representatives, including an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and Section 8.4 hereof, shall constitute a decision of the Indemnifying Parties and shall be final, binding and conclusive upon the Indemnifying Parties, and the Escrow Agent and the Indemnified Party may rely upon any such decision, act, consent or instruction of a majority of the Shareholder Representatives as being the decision, act, consent or instruction of the Indemnifying Parties. The Escrow Agent and Indemnified Party 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 Representatives. Notwithstanding any other provision in this Agreement or the Escrow Agreement, the Shareholder Representatives shall have no authority to (a) bind any former Shareholder or holder of Company Options to any liability that is not satisfied solely from the Escrow Fund and the Expense Reserve or (b) to change or agree to change any provision of this Article VII or of the Escrow Agreement in any manner adverse to any former Shareholder or holder of Company Options without, in either case, the express written consent of such affected former Shareholder or holder of Company Options.
(d) The Shareholder Representatives shall have reasonable access to information about the Surviving Company and the reasonable assistance of the Surviving Company’s officers and employees for the purpose of performing its duties and exercising its rights hereunder, provided that the Shareholder Representatives shall treat confidentially and not disclose any nonpublic information from or about the Surviving Company to anyone (except on a need to know basis to counsel, witness and experts necessary to perform their duties hereunder who agree to treat such information confidentially).
(e) According to the terms of the Escrow Agreement, the Shareholder Representatives shall be entitled to withhold from and use to pay their expenses, interest earned on the Escrow Fund and from amounts to be distributed from the Escrow Fund to the Indemnifying Parties a portion of the Escrow Fund that is equal to the reasonable estimated expenses to be incurred by the Shareholder Representatives as specified in a Certificate to be delivered to the Escrow Agent. The Shareholder Representatives shall be entitled to disburse from the Expense Reserve money for expenses incurred by the Shareholder Representatives in the performance of their duties.
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Sources: Escrow Agreement (Mitel Corp)
Shareholder Representatives. (a) Each By virtue of the approval of the Merger and this Agreement by the CoolTouch Stockholders, each of the CoolTouch Participating Holders shall be deemed to have agreed to appoint ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ as their agents and attorney in facts, as the Shareholder Representatives is hereby appointed as agent and attorney-in-fact, for and on behalf of each Indemnifying Party, the CoolTouch Participating Holders to give and receive notices and communications related to claims for Lossescommunications, to authorize payment to the order of an any Indemnified Party from the Escrow Fund in satisfaction of claims by an such Indemnified PartyParty pursuant to Section 8.2, to object to and defend against such claimspayments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any 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 contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representatives for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Indemnifying Parties CoolTouch Participating Holders from time to time upon not less than 30 thirty (30) days prior written notice to ParentSyneron; provided, however, that a the Shareholder Representative Representatives may not be removed unless holders of a sixty percent majority of the Outstanding Share Number (60%Fully-Diluted) interest in the Escrow Fund held by CoolTouch Participating Holders agree to such removal; provided that if such removal results in there being no Shareholder Representatives, then and to the removal shall not be effective until identity of the Shareholders shall have appointed a substituted agent. A Shareholder Representative may resign at any time upon thirty (30) days advance notice to ParentNotwithstanding the foregoing, the Escrow Agent and the other Shareholder Representatives. A a vacancy in a the position of Shareholder Representative may be filled by the holders of sixty percent a majority of the Outstanding Share Number (60%Fully-Diluted) interest in the Escrow Fundheld by CoolTouch Participating Holders. No bond shall be required of the Shareholder Representatives, and the Shareholder Representatives shall not receive any compensation for their services. Notices or communications to or from the Shareholder Representatives shall constitute notice to or from the Indemnifying Parties. Only actions taken by a majority of the Shareholder Representatives shall be deemed as actions taken by the Shareholder Representatives in connection with the obligations set forth in this AgreementCoolTouch Participating Holders.
(b) The Shareholder Representatives shall not be liable for any act done or omitted hereunder as representatives of the Indemnifying Parties Shareholder Representative while acting in good faith even though such act or omission constitutes negligence on the part of such Shareholder Representativefaith. The Shareholder Representatives may engage attorneys, accountants and other professionals and experts. Each Shareholder Representative may in good faith rely conclusively on information, reports, statements, opinions, including financial statements, about the Company, the Surviving Company or another Person, that were prepared or presented by (i) one or more officers or employees of the Company or Surviving Company, or (ii) legal counsel, public accountants, investment bankers or other Persons as to matters the Shareholder Representative believes in good faith are within the Person’s knowledge, professional or expert competence. Any action taken by a Shareholder Representative based on such reliance shall be deemed conclusively to have been taken in good faith and in full satisfaction of the duties of such Shareholder’s Representative’s duties. The Indemnifying Parties on whose behalf the Escrow Amount was contributed to the Escrow Fund CoolTouch Participating Holders shall indemnify the Shareholder Representatives and hold the Shareholder Representatives harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative Representatives and arising out of or in connection with the acceptance or administration of the Shareholder Representatives’ Representative’s duties hereunder, including the Shareholder Representatives’ obligations to the Escrow Agent hereunder and the reasonable fees and expenses of any legal counsel retained by the Shareholder Representatives. The Shareholder Representatives have only the duties expressly stated in this Agreement and the Escrow Agreement, and shall have no other duty, express or implied. The Shareholder Representatives are not fiduciaries of the Indemnifying Parties. The Shareholder Representatives have no responsibility or liability for any representation, warranty or covenant of the Company, the Surviving Company, the Parent or the Sub except, if applicable, in their capacity as Indemnifying Parties.
(c) A decision, act, consent or instruction from a majority of the Shareholder Representatives, including an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and 11.2 or Section 8.4 11.3 hereof, shall constitute a decision of the Indemnifying Parties CoolTouch Participating Holders and shall be final, binding and conclusive upon the Indemnifying Parties, CoolTouch Participating Holders; and the Escrow Agent and the Indemnified Party Syneron may rely upon any such decision, act, consent or instruction of a majority of the Shareholder Representatives as being the decision, act, consent or instruction of the Indemnifying PartiesCoolTouch Participating Holders. The Escrow Agent and Indemnified Party are Syneron is hereby relieved from any liability to any person Person for any acts done by them it in accordance with such decision, act, consent or instruction of the Shareholder Representatives. Notwithstanding any other provision in this Agreement or the Escrow Agreement, the Shareholder Representatives shall have no authority to (a) bind any former Shareholder or holder of Company Options to any liability that is not satisfied solely from the Escrow Fund and the Expense Reserve or (b) to change or agree to change any provision of this Article VII or of the Escrow Agreement in any manner adverse to any former Shareholder or holder of Company Options without, in either case, the express written consent of such affected former Shareholder or holder of Company Options.
(d) The Shareholder Representatives shall have reasonable access to information about the Surviving Company and the reasonable assistance of the Surviving Company’s officers and employees for the purpose of performing its duties and exercising its rights hereunder, provided that the Shareholder Representatives shall treat confidentially and not disclose any nonpublic information from or about the Surviving Company to anyone (except on a need to know basis to counsel, witness and experts necessary to perform their duties hereunder who agree to treat such information confidentially).
(e) According to the terms of the Escrow Agreement, the Shareholder Representatives shall be entitled to withhold from and use to pay their expenses, interest earned on the Escrow Fund and from amounts to be distributed from the Escrow Fund to the Indemnifying Parties a portion of the Escrow Fund that is equal to the reasonable estimated expenses to be incurred by the Shareholder Representatives as specified in a Certificate to be delivered to the Escrow Agent. The Shareholder Representatives shall be entitled to disburse from the Expense Reserve money for expenses incurred by the Shareholder Representatives in the performance of their duties.
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