Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form. (b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith. (c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 4 contracts
Sources: Share Purchase Agreement (Boxlight Corp), Share Purchase Agreement (Boxlight Corp), Share Purchase Agreement (Boxlight Corp)
Shareholders’ Representative. (a) The Selling Parties, by adopting By virtue of the adoption of this Agreement and the transactions contemplated hereby, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Company Shareholder shall be deemed to have appointed the designation of, and hereby irrevocably appoint and constitute K Laser designates, ▇▇▇▇▇▇▇ ▇▇ as the Shareholders’ Representative for and on behalf of the Selling Parties, all purposes in connection with the authority negotiation and execution of this Agreement, the Additional Agreements and the agreements ancillary hereto, including, but not limited to, (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communicationscommunications to Purchaser for any purpose under this Agreement and the Additional Agreements, (iiiii) to agree to, negotiate, enter into settlements and provide amendments compromises of and supplements demand arbitration and comply with orders of courts and awards of arbitrators with respect to any indemnification claims (including Third-Party Claims) under Section 10.1 or, following the Closing, other disputes arising under or related to this Agreement, (iii) to enter into and waivers in respect deliver the Escrow Agreement on behalf of this Agreement and each of the Option AgreementCompany Shareholders, (iv) to retain legal counselauthorize or object to delivery to Purchaser of the Escrow Fund, accountantsor any portion thereof, consultants in satisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow Agreement, (v) to act on behalf of Company Shareholders in accordance with the provisions of the Agreement, the securities described herein and other experts, and incur any other reasonable expenses, document or instrument executed in connection with, with the Agreement and the Merger and (vi) to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the .
(b) The Shareholders’ RepresentativeRepresentative may resign at any time. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Company Shareholders from time to time upon not no less than ten twenty (1020) days’ days prior written notice to all the Purchaser, provided, however, that the Shareholders’ Representative may not be removed unless holders of a majority of the Selling Parties and shares of Company Capital Stock (on an as converted to Parent and PurchaserCompany Shares) outstanding immediately prior to the Effective Time agree to such removal. Any vacancy in the position of Shareholders’ Representative may be filled by approval of the holders of a majority of the shares of Company Capital Stock (on an as converted to Company Shares) outstanding immediately prior to the Effective Time. No bond shall be required of the Shareholders’ Representative. Notices .
(c) The Shareholders’ Representative will incur no liability of any kind with respect to any action or communications to or from omission by the Shareholders’ Representative in connection with the Shareholders’ Representative’s services pursuant to Parent shall constitute notice to or from each of the Selling Partiesthis Agreement and any agreements ancillary hereto, except for notices related to any action for which in the Selling Parties’ consent is required under the terms event of this Agreement or applicable law. Each Selling Party agrees to receive correspondence liability directly resulting from the Shareholders’ Representative, including in electronic form.
(b) ’s gross negligence or willful misconduct. The Shareholders’ Representative shall not be liable for any act done action or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted omission pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencecounsel. The Selling Parties shall severally (Company Shareholders will indemnify, defend and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify hold harmless the Shareholders’ Representative from and hold it harmless against any lossand all losses, liability or liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense incurred without gross negligence or bad faith on the part of the Shareholders’ document location, duplication and shipment) (collectively, “Representative and Losses”) arising out of or in connection with the acceptance or administration of his duties hereunder. No provision Shareholders’ Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that Representative Losses shall require not include costs (other than third party expenses) incurred by the Shareholders’ Representative in the ordinary course of business of the Shareholders’ Representative under the engagement letter entered into by the Shareholders’ Representative, the Company, and certain of the Company Shareholders; provided, further, 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 Shareholders’ Representative, the Shareholders’ Representative will reimburse the Company Shareholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Company Shareholders, any such Representative Losses may be recovered by the Shareholders’ Representative from (x) the funds in the Expense Fund, and (y) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Company Shareholders; provided, that while this section allows the Shareholders’ Representative to expend be paid from the aforementioned sources of funds, this does not relieve the Company Shareholders from their obligation to promptly pay such Representative ▇▇▇▇▇▇ as they are suffered or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powersincurred, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by nor does it prevent the Shareholders’ Representative based on such reliance shall be deemed conclusively from seeking any remedies available to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, it at law or any provision to the contrary set forth in this Agreement or the Option Agreement, otherwise. In no event will the Shareholders’ Representative shall only have be required to advance its own funds on behalf of the power Company Shareholders or authority to act with respect to matters pertaining otherwise. Notwithstanding anything in this Agreement to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitationcontrary, an action any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against an individual Selling Party for hisnon-parties otherwise applicable to, her or its individual breach of a covenant the Company Shareholders set forth elsewhere in this Agreement), and Agreement are not intended to be applicable to the powers conferred on indemnities provided to the Shareholders’ Representative herein and in under this section. The foregoing indemnities will survive the Option Agreement shall not authorize Closing, the resignation or empower removal of the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision the termination of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 3 contracts
Sources: Merger Agreement (Oak Woods Acquisition Corp), Merger Agreement (Oak Woods Acquisition Corp), Merger Agreement (Oak Woods Acquisition Corp)
Shareholders’ Representative. Each of the Selling Shareholders (a) The Selling Partiesincluding the Former Company Share Award Holders), by adopting virtue of its, his or her execution and delivery of this Agreement (directly, by proxy or pursuant to a power of attorney), hereby irrevocably constitutes and appoints ▇▇▇▇▇ ▇▇▇▇▇, a Principal and the Chief Executive Officer of the Company as of the date of this Agreement (the “Shareholders Representative”), to be such Selling Shareholder’s true and lawful representative, agent and attorney-in-fact to act on such Selling Shareholder’s behalf with respect to any actions permitted to be taken by such Selling Shareholder, or any of them, after the date of this Agreement in connection with this Agreement and the other Transaction Documents and the transactions contemplated herebyhereby and thereby, hereby irrevocably appoint in accordance with the terms and constitute K Laser conditions of the Transaction Documents. In such representative capacity, the Shareholders Representative shall take or refrain from taking, and the Selling Shareholders each agree that the Shareholders Representatives may take or refrain from taking, any and all actions which the Shareholders Representative reasonably believes, acting in good faith, to be necessary or appropriate under this Agreement and the other Transaction Documents (except as the Shareholders’ Representative provided above) for and on behalf of the Selling PartiesShareholders, with as fully and effectively as if the authority (i) to perform the obligations of the Shareholders’ Representative set forth Selling Shareholders were acting on their own behalf. Each reference in this Agreement or any other Transaction Document to an action to be taken by the Selling Shareholders shall, with respect to the Selling Shareholders, be taken by the Shareholders Representative on their behalf pursuant to this Section 7.18. Each Selling Shareholder hereby ratifies and confirms, and agrees to ratify and confirm in the future upon the request of the Shareholders Representative, any action taken by the Shareholders Representative in the exercise of the agency and power of attorney granted to the Shareholders Representative pursuant to this Section 7.18, which agency and power of attorney, being coupled with an interest, is irrevocable and a durable agency and power of attorney and shall survive the death, incapacity or incompetence of such Selling Shareholder. Each of Purchaser and the Option AgreementEscrow Agent shall be entitled to conclusively rely upon the directions, (ii) instructions and notice of the Shareholders Representative, when it is acting in their capacity as such under this Section 7.18, without being required to give undertake any independent investigation or verification, and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers any notice provided in respect of accordance with this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Shareholders Representative in its capacity as such shall be conclusively deemed to Parent shall constitute notice have been provided to or from each of the Selling PartiesShareholders, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable lawas applicable. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Shareholders Representative shall not be liable for have any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and liability to any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and Selling Shareholders arising out of or relating to any action taken or omission made in good faith by the Shareholders Representative (in its capacity as such) pursuant to this Agreement, and each Selling Shareholder shall, severally but not jointly, indemnify, defend and hold harmless the Shareholders Representative with respect to all actions so taken or omissions made on behalf of such Selling Shareholder up to the net proceeds received by such Selling Shareholder in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithTransactions.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 2 contracts
Sources: Share Purchase Agreement (Baidu, Inc.), Share Purchase Agreement (Alibaba Group Holding LTD)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect For purposes of this Agreement and the Option Escrow Agreement, the Sellers hereby designate ▇▇▇▇▇ ▇▇▇▇▇, III, to serve as the sole and exclusive representative of the Sellers (ivthe “Shareholders’ Representative”) from and after the Closing Date with respect to retain legal counselthe matters set forth in this Agreement, accountants, consultants such service to be without compensation except for the reimbursement by the Sellers of out-of-pocket expenses and other experts, indemnification specifically provided herein. The Sellers shall be bound by any and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of taken by the Shareholders’ Representative for on their behalf, including without limitation payments made pursuant to Article 10 hereof. Notwithstanding anything to the accomplishment ofcontrary contained in this Agreement, any the Shareholders’ Representative shall have no duties or all responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of the foregoing. K Laser hereby accepts its appointment as Company or any Seller shall otherwise exist against the Shareholders’ Representative. Such agency may be changed by the holders of a majority Except as expressly provided in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from this Agreement, the Shareholders’ Representative shall have no duties or responsibilities to Parent shall constitute notice to Buyer or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formits Affiliates.
(b) The Shareholders’ Representative shall not promptly deliver to each Seller any notice received by the Shareholders’ Representative concerning this Agreement or the Escrow Agreement.
(c) Neither the Shareholders’ Representative nor any agent employed by the Shareholders’ Representative shall be liable to any Seller relating to the performance of such Shareholders’ Representative’s duties under this Agreement or the Escrow Agreement or for any act done errors in judgment, negligence, oversight, breach of duty or omitted hereunder 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 Shareholders’ Representative constituted fraud or were taken or not taken in bad faith. The Shareholders’ Representative shall be indemnified and held harmless by the Sellers against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholders’ Representative is made a party by reason of the fact that the Shareholders’ Representative was acting as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly)this Agreement; provided, according to each Selling Parties’ pro-rata interest in the shares of Everesthowever, indemnify that the Shareholders’ Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and hold it harmless against any loss, liability convincing evidence that the actions taken or expense incurred without gross negligence or bad faith on the part of not taken by the Shareholders’ Representative and arising out of constituted fraud or were taken or not taken in connection with the acceptance bad faith. The Shareholders’ Representative shall be protected in acting upon any notice, statement or administration of his duties hereunder. No provision of this Agreement shall require certificate believed by the Shareholders’ Representative to expend be genuine and to have been furnished by the appropriate Person and in acting or risk its own funds or otherwise incur refusing to act in good faith on any financial liability in matter. Neither the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith nor any agent employed by the Shareholders’ Representative shall be liable to Buyer or any Affiliate of Buyer by reason of this Agreement or the performance of the Shareholders’ Representative’s duties hereunder or otherwise.
(d) Buyer shall be entitled to rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based as the duly authorized action of the Shareholders’ Representative on such reliance shall be deemed conclusively behalf of each Seller with respect to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary matter set forth in this Agreement or the Option Escrow Agreement, the Shareholders’ Representative shall only have the power or authority . All notices to act with respect to matters pertaining be sent to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted Sellers pursuant to this Agreement and the Option AgreementEscrow Agreement may be addressed to the Shareholders’ Representative only, and any notice so sent shall be deemed notice to all of the Sellers hereunder. The Sellers hereby consent and agree that the Shareholders’ Representative is authorized to accept notice on behalf of all of the Sellers pursuant hereto.
(iie) alters The Shareholders’ Representative is hereby appointed and constituted the consideration payable true and lawful attorney-in-fact of each Seller, with full power in its name and on its behalf to any Selling Party pursuant act according to the terms of this Agreement in the absolute discretion of the Shareholders’ Representative, and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, waivers, amendments, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with this Agreement. This power of attorney and all authority hereby conferred is granted in consideration of the Option Agreementmutual covenants and agreements made herein, or (iii) adds to or results in an increase and shall be irrevocable and shall not be terminated by any act of any Selling Party’s indemnity Seller or by operation of Law, whether by death or any other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesevent.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Freedom Group, Inc.), Stock Purchase Agreement (Remington Arms Co Inc/)
Shareholders’ Representative. (a) The ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (such person and any successor or successors being the “Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser Shareholders Representative”) shall act as the representative of the Selling Shareholders’ Representative for , and shall be authorized to act on behalf of the Selling PartiesShareholders to take any and all actions required or permitted to be taken by the Selling Shareholders Representative under this Agreement and with respect to any claims (including the settlement thereof) made by a Investor Indemnified Party for indemnification pursuant to this Article VIII, with the authority including (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur comply with orders of courts with respect to any other reasonable expenses, in connection with, claims for indemnification and to (ii) take all actions necessary or appropriate in the judgment of the Shareholders’ Selling Shareholders Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as In all matters relating to this Article VIII, the Shareholders’ Representative. Such agency may Selling Shareholders Representative shall be changed by the holders of a majority in interest of only party entitled to assert the shares of Everest rights of the Selling Shareholders, and the Selling Shareholders Representative shall perform all of the obligations of the Selling Shareholders under this Article VIII. The Investor Indemnified Parties shall be entitled to rely on all statements, representations and decisions of the Selling Shareholders Representative. The Selling Shareholders Representative may resign upon not less than twenty (20) business days’ prior written notice to Investors and the Selling Shareholders. The Selling Shareholders by the vote of a majority-in-interest of their respective Pro Rata Portions may remove the Selling Shareholders Representative from time to time upon not less than ten twenty (1020) business days’ prior written notice to all Investors. Any vacancy in the position of the Selling Parties and to Parent and Purchaser. No bond shall Shareholders Representative may be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each filled by a majority-in-interest of the Selling PartiesShareholders (based on their respective Pro Rata Portions), except for notices related subject to any action for the consent of the Investors (which consent shall not be unreasonably withheld, conditioned or delayed). Any successor Selling Shareholders Representative shall acknowledge in writing to the Investors his or her acceptance of his or her appointment as Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Shareholders Representative, including in electronic form.
(b) The Selling Shareholders shall be bound by all actions taken by the Selling Shareholders Representative in his capacity thereof, except for any action that conflicts with the limitations set forth in Section 8.05(d) below. The Selling Shareholders Representative shall promptly, and in any event within ten (10) business days, provide written notice to the Selling Shareholders of any action taken on behalf of them by the Selling Shareholders Representative pursuant to the authority delegated to the Selling Shareholders Representative under this Section 8.05. The Selling Shareholders Representative shall at all times act in his or her capacity as Selling Shareholders Representative in a manner that the Selling Shareholders Representative believes to be in the best interest of the Selling Shareholders’ . Neither the Selling Shareholders Representative nor any of his or her affiliates shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement, except in the case of his gross negligence, bad faith or willful misconduct. The Selling Shareholders Representative may consult with legal counsel, independent public accountants and other experts selected by him or her. The Selling Shareholders Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement. As to any matters not expressly provided for in this Agreement, the Selling Shareholders Representative shall not exercise any discretion or take any action.
(c) Each Selling Shareholder shall, severally and not jointly (based on his or her Pro Rata Portion), hold harmless and reimburse the Selling Shareholders Representative from and against such Selling Shareholder’s ratable share (based on his or her Pro Rata Portion) of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Selling Shareholders Representative arising out of or resulting from any action taken or omitted to be taken by the Selling Shareholders Representative under this Agreement, other than such liabilities, losses, damages, claims, costs or expenses (including the reasonable fees and expenses of any legal counsel retained by the Selling Shareholders Representative) arising out of or resulting from the Selling Shareholders Representative’s gross negligence, bad faith or willful misconduct; provided, however, that no such Selling Shareholder shall be liable in excess of an amount equal to the number of Special Shares sold by such Selling Shareholder to the Purchaser under Article I multiplied by the Per Share Price. The Selling Shareholders Representative shall not be liable entitled to any compensation for any act done or omitted hereunder as the Shareholders’ Representative while acting his services in good faith and without negligence and any act done or omitted pursuant such capacity.
(d) Notwithstanding anything to the advice of counsel contrary herein, the Selling Shareholders Representative, in his or her capacity as such, is not authorized to, and shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly)not, according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement accept on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and Shareholder any action taken by the Shareholders’ Representative based on consideration to which such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to Shareholder is entitled under this Agreement and the Option AgreementSelling Shareholders Representative, (ii) alters the consideration payable to in his or her capacity as such, shall not in any Selling Party pursuant to this Agreement or the Option Agreementmanner exercise, or (iii) adds seek to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubtexercise, any change to the nature of the indemnity obligations), in each case voting power whatsoever with respect to clauses (i), (ii) and (iii) shares of this Section 8.1(c), without first obtaining the prior written approval capital stock of the Company now or hereafter owned of record or beneficially by any Selling PartiesShareholder unless the Selling Shareholders Representative is expressly authorized to do so in a writing signed by such Selling Shareholder.
Appears in 2 contracts
Sources: Class a Preferred Share Purchase Agreement (PointClickCare Corp.), Class a Preferred Share Purchase Agreement (PointClickCare Corp.)
Shareholders’ Representative. (a) The Selling Parties, by adopting Upon approval of the Merger and this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest the Company Common Stock under applicable Law, each of the shares of Everest of Former Company Shareholders will be deemed to have irrevocably appointed SpinCo, as its, his or her true and lawful attorney-in-fact and agent (the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the “Shareholders’ Representative. Notices ”), with full power of substitution or communications resubstitution, to or from act solely and exclusively on behalf of such Former Company Shareholder with regard to matters pertaining to (i) the Shareholders’ Representative indemnification by the Former Company Shareholders referred to Parent shall constitute notice in this Article VII, including the power to or from each compromise any Claim on behalf of the Selling Partiessuch Former Company Shareholder, except for notices related to any action for which the Selling Parties’ consent is required and (ii) all matters under the terms of this Escrow Agreement or applicable law. Each Selling Party agrees relating to receive correspondence from the Shareholders’ Representative, including in electronic formEscrow Shares.
(b) The appointment of the Shareholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Shareholders’ Representative in all matters referred to herein. By their appointment of the Shareholders’ Representative, the Former Company Shareholders thereby confirm all that the Shareholders’ Representative shall do or cause to be done by virtue of its appointment as the representative of the Former Company Shareholders hereunder. The Shareholders’ Representative shall act for the Former Company Shareholders on all of the matters set forth in this Article VII and the Escrow Agreement in the manner the Shareholders’ Representative believes to be in the best interest of the Former Company Shareholders and consistent with the obligations of the Former Company Shareholders under this Article VII and the Escrow Agreement, but the Shareholders’ Representative shall not be liable responsible to any Former Company Shareholder for any act done or omitted hereunder as damages which the Shareholders’ Representative while acting in good faith and without negligence and Former Company Shareholders may suffer by the performance (including any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part damages arising out of the Shareholders’ Representative and arising out Representative’s negligence) of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend Representative’s duties hereunder, other than damages arising from willful violation of applicable Law or risk its own funds or otherwise incur any financial liability willful misconduct in the exercise or performance of any of its powers, rights, such duties or privileges under this Agreement on behalf of any Selling Partieshereunder. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared shall not have any duties or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary responsibilities except those expressly set forth in this Agreement or the Option Escrow Agreement, and no implied covenants, functions, responsibilities, duties or liabilities shall be read into this Agreement or shall otherwise exist against the Shareholders’ Representative. The Shareholders’ Representative shall pay all of the expenses incurred by the Shareholders’ Representative in performing its duties hereunder. The Shareholders’ Representative shall be entitled to rely, and shall be fully protected in relying, upon any statements furnished to it by any Former Company Shareholder or Parent, or any other evidence deemed by the Shareholders’ Representative to be reliable, and the Shareholders’ Representative shall only have the power or authority be entitled to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the advice of counsel selected by it.
(c) The Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in is an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) intended beneficiary of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties7.8.
Appears in 2 contracts
Sources: Merger Agreement (Smith a O Corp), Merger Agreement (Smith Investment Co)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement ▇▇. ▇. ▇. ▇▇▇▇▇ shall be constituted and appointed as agent (the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the “Shareholders’ Representative Representative”) for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) MegaSys Shareholders to give and receive notices and communications, (iii) to authorize delivery to Iveda of payments from the MegaSys Shareholders in satisfaction of claims by Iveda to object to such deliveries, to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expenses, in connection withdemand 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 Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as All actions of the Shareholders’ RepresentativeRepresentative shall be taken jointly, not individually. Such agency may be changed by the holders action of the MegaSys Shareholders holding a majority in interest of the shares of Everest MegaSys as of immediately prior to the Selling Parties Effective Time from time to time upon not less than ten (10) 10 days’ prior written notice to all of the Selling Parties and to Parent and PurchaserIveda. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall receive no compensation for services. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the MegaSys Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencefaith. The Selling Parties MegaSys Shareholders shall severally (and not jointly)pro rata, according to each Selling Parties’ pro-rata interest in the shares of Everestaccordance with their Pro Rata Portion, indemnify the Shareholders’ Representative and hold it the Shareholders’ Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his its duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithAgreement.
(c) Notwithstanding The Shareholders’ Representative shall have reasonable access to information about MegaSys and Iveda and the foregoing provisions in reasonable assistance of MegaSys’ and Iveda’s officers and employees for purposes of performing its duties and exercising its rights under this ARTICLE VIIIArticle IX, or any provision to the contrary set forth in this Agreement or the Option Agreement, provided that the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group treat confidentially and not matters pertaining disclose any nonpublic information from or about MegaSys or Iveda to an individual Selling Party anyone (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of except on a covenant in this Agreementneed to know basis to individuals who agree to treat such information confidentially), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 2 contracts
Sources: Share Exchange Agreement (Iveda Solutions, Inc.), Share Exchange Agreement (Iveda Solutions, Inc.)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement Sellers and the transactions contemplated hereby, Shareholders hereby irrevocably constitute and appoint and constitute K Laser as the Shareholders’ Representative for as their true and lawful attorney-in-fact and agent with full power of substitution to: (i) accept on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement Sellers and the Option Agreement, Shareholders service of process and any notices required to be served on any Shareholders; and (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary to be taken by Sellers or appropriate in the judgment of the Shareholders’ Representative for the accomplishment ofShareholders under this Agreement, including to deliver notices to be served on Buyers by any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties such Party and to Parent control the defense and Purchaser. No bond shall be required settlement of the Shareholders’ Representative. Notices any and all claims for indemnification by any Buyer Parties against any Seller or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required Shareholder under the terms Article 10 of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formAgreement.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as Sellers and each Shareholder hereby agree that: (i) in all matters in which action by the Shareholders’ Representative while acting in good faith and without negligence and any act done is required or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly)permitted, according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative is authorized to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement act on behalf of Sellers and the Shareholders, notwithstanding any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared dispute or presented by counsel disagreement among any Seller or other professionals retained by itany Shareholder, and any Buyer Party will be entitled to rely on any and all action taken by the Shareholders’ Representative based under this Agreement without any liability to, or obligation to inquire of, any Seller or any Shareholder, notwithstanding any knowledge on the part of any Buyer Party of any such reliance shall dispute or disagreement; (ii) notice to the Shareholders’ Representative, delivered in the manner provided in Section 11.4, will be deemed conclusively to be notice to Sellers and all Shareholders for the purposes of this Agreement; (iii) the power and authority of the Shareholders’ Representative, as described in this Agreement, will continue in full force until all rights and obligations of Sellers and the Shareholders under this Agreement will have terminated, expired or been taken in good faithfully performed.
(c) Notwithstanding Sellers and each Shareholder agree that, notwithstanding the foregoing provisions in this ARTICLE VIIIforegoing, at the request of Buyers, each Seller or any provision such Shareholder will take all actions necessary or appropriate to consummate the transaction contemplated hereby individually on such Seller’s or Shareholder’s own behalf, and delivery of each and every document required of such Seller or Shareholder pursuant to the contrary set forth in this Agreement or terms hereof.
(d) In the Option Agreement, event that the Shareholders’ Representative shall only have dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, then the power or authority Shareholders then holding a majority of the outstanding shares of DSI will select another representative to act with respect fill such vacancy and such substituted representative will be deemed to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on be the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision for all purposes of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party documents delivered pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partieshereto.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Heidrick & Struggles International Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Sellers hereby irrevocably appoint Shareholders' Representative as their lawful attorney-in-fact to act in the name, place and constitute K Laser as stead of Sellers to execute and deliver the Shareholders’ Representative Escrow Agreement, stock powers for and on behalf of the Selling PartiesShares, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreementcertificates referred to in Section 7.1(f), (ii) to give and receive notices and communicationsany amendments, (iii) to agree tosupplements, negotiatemodifications, enter into and provide amendments and supplements to and waivers in respect or terminations of this Agreement and to receive disbursements from the Option Escrow Fund pursuant to the Escrow Agreement and, as their agent with respect to, and with the full power to resolve, all questions, disputes, conflicts and controversies concerning (a) amounts held under the Escrow Agreement, (ivb) matters concerning the adjustment to retain legal counsel, accountants, consultants the Initial Purchase Price under Sections 2.5 and other experts2.6, and incur any other reasonable expenses, in connection with, (c) all matters concerning Buyer Claims under Article VIII. Shareholders' Representative is authorized to give all notices and to take all actions necessary deemed appropriate by and with respect to such matters, to direct the Escrow Agent to disburse funds from the Escrow Fund and will have no liability or appropriate obligation to any Seller for any act or omission taken in good faith in such capacity. Notwithstanding the foregoing, Shareholders' Representative shall have no authority as the lawful attorney-in-fact to act in the judgment name, place and stead of the Optionholder with respect to any amendment, supplement, modification, waiver or termination of this Agreement. This appointment is coupled with an interest and is irrevocable by each Seller, and shall terminate only upon termination of Sellers' obligations pursuant to Article VIII. Notwithstanding the foregoing, in the event Shareholders’ ' Representative resigns, is incapacitated, makes a general assignment for the accomplishment ofbenefit of its creditors, any or all is the subject of the foregoing. K Laser hereby accepts its appointment as the bankruptcy, reorganization, liquidation, dissolution or similar proceedings, Sellers shall use reasonable efforts to appoint a new Shareholders’ Representative. Such agency may be changed ' Representative by the holders vote of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from Sellers, with each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively Seller to have been taken in good faiththat number of votes determined by multiplying 100,000 by such Seller's Pro Rata Share.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 2 contracts
Sources: Stock Purchase Agreement (KMG America CORP), Stock Purchase Agreement (KMG America CORP)
Shareholders’ Representative. Each of the Shareholders has previously made, constituted and appointed, and hereby irrevocably makes, constitutes and appoints ▇▇▇▇▇▇ as his agent and representative and attorney-in-fact (the "Shareholders' Representative") for all purposes under this Agreement. Each Shareholder hereby authorizes the Shareholders' Representative, on behalf and in the name of such Shareholder, to:
(a) Receive all notices or documents given or to be given to him by the Company pursuant hereto or in connection herewith and to receive and accept service of legal process in connection with any suit or other proceeding arising under this Agreement. The Selling PartiesShareholders' Representative promptly shall forward a copy of such notice or process to each Shareholder;
(b) Deliver at the Closing the certificates for the Shares of each Shareholder in exchange for his portion of the Exchange Consideration;
(c) Sign and deliver to the Company at the Closing a receipt for his portion of the Exchange Consideration and transmit the Exchange Consideration to each Shareholder;
(d) Deliver to the Company at the Closing all certificates and documents to be delivered to the Company by the Shareholders pursuant to this Agreement, together with any other certificates and documents executed by adopting each Shareholder and deposited with the Shareholders' Representative for such purpose;
(e) Engage such legal counsel, and such accountants and other advisors for Shareholders and incur such other expenses on behalf of Shareholders in connection with this Agreement and the transactions described herein as the Shareholders' Representative may deem appropriate; and
(f) Take such action on behalf of such Shareholders as the Shareholders' Representative may deem appropriate in respect of:
(i) Waiving any inaccuracies in the representations or warranties of the Company contained in this Agreement or in any document delivered by it pursuant hereto;
(ii) Waiving the fulfillment of any of the conditions precedent to the Shareholders' obligations hereunder;
(iii) Taking such other action as he is authorized to take under this Agreement;
(iv) Receiving all documents or certificates and making all determinations on behalf of the Shareholders required under this Agreement; and
(v) All such other matters as the Shareholders' Representative may deem necessary or appropriate to consummate this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations . The appointment of the Shareholders’ ' Representative set forth hereunder is irrevocable and is deemed coupled with an interest and any action taken by Shareholders' Representative pursuant to the authority granted in this Agreement Section 9.1 shall be effective and absolutely binding on each Shareholder notwithstanding any contrary action of or direction from a Shareholder. The death or incapacity of any Shareholder shall not terminate the Option Agreement, (ii) to give prior authority and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment agency of the Shareholders’ Representative for the accomplishment of, any or all ' Representative. Each of the foregoing. K Laser hereby accepts its appointment as Shareholders agree that the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ ' Representative shall not be liable for any act done or omitted hereunder as failure to consummate the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of transactions described herein or in connection with the acceptance or administration performance of his duties hereunder. No provision of this Agreement shall require except for the Shareholders’ Representative to expend ' Representative's fraud or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good bad faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Morgan Gary D), Stock Purchase Agreement (Win Gate Equity Group Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement Each of the Indemnifying Shareholders hereby appoints ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ as its agent and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser attorney-in-fact as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority Indemnifying Shareholders to: (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communicationscommunications to or from Parent (on behalf of himself or any other Indemnified Person) and/or the Escrow Agent relating to this Agreement, the Escrow Agreements or any of the transactions and other matters contemplated hereby or thereby, (ii) authorize deliveries to Parent of cash or shares from the Cash Escrow Fund or the Stock Escrow Fund, as the case may be, in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims) pursuant to ARTICLE 7, (iii) object to such claims in accordance with Section 7.4, (iv) consent or agree to, negotiate, enter into settlements and provide amendments compromises of, and supplements to demand mediation and waivers in arbitration and comply with orders of courts and awards of arbitrators with respect of this Agreement and to, such claims, except for claims for indemnification made directly against the Option AgreementIndemnifying Shareholders, (ivv) bind such Indemnifying Shareholder to retain legal counselthe contract referenced in Section 7.8(c) pursuant to which the Shareholders’ Representative agrees on behalf of all Indemnifying Shareholders that the Indemnifying Shareholders will be liable for any amounts paid in resolution or settlement of a third-party claim, accountantsthe defense or settlement of which is controlled by the Shareholders’ Representative in accordance with Section 7.8, consultants and other expertsregardless of the limitations set forth in this ARTICLE 7, and incur any other reasonable expenses, in connection with, and (vi) Indemnifying Shareholder to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoingforegoing or that are specifically mandated by the terms of this Agreement, in each case without having to seek or obtain the consent of any Person under any circumstance, and (vii) act as expressly set forth in this Agreement. K Laser hereby accepts The Shareholders’ Representative shall be the sole and exclusive means of asserting or addressing any of the above, and no former shareholder shall have any right to act on its appointment as own behalf with respect to any such matters, other than any claim or dispute against the Shareholders’ Representative. Such agency The Person serving as the Shareholders’ Representative may be changed replaced from time to time by the holders of a majority in interest of the shares of Everest of held immediately prior to the Selling Parties from time to time Effective Time by the Indemnifying Shareholders upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and PurchaserParent. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall receive no compensation for his services. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Indemnifying Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable to any Indemnifying Shareholder for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence faith, and any act done or omitted pursuant to in accordance with the advice of counsel or other expert shall be conclusive evidence of such good faith and absence of negligencefaith. The Selling Parties Indemnifying Shareholders shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon consult with legal counsel, independent public accountants and other experts selected by it and shall be reimbursed by the informationIndemnifying Shareholders for the reasonable fees and expenses of such counsel, reports, statements accountants and opinions prepared or presented by counsel or other professionals retained by it, expects and any action taken other cost and expenses incurred by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithRepresentative.
(c) Notwithstanding The Shareholders’ Representative shall have reasonable access to information about the foregoing provisions in this ARTICLE VIIICompany and the reasonable assistance of the Company’s former officers and employees for purposes of performing his duties and exercising its rights hereunder, or any provision to the contrary set forth in this Agreement or the Option Agreement, provided that the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group treat confidentially and not matters pertaining disclose any nonpublic information from or about the Company to an individual Selling Party anyone (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of except on a covenant in this Agreementneed to know basis to individuals who agree to treat such information confidentially), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 2 contracts
Sources: Merger Agreement (Sunpower Corp), Merger Agreement (Sunpower Corp)
Shareholders’ Representative. (a) The Selling PartiesImmediately upon the adoption of this Agreement by the requisite vote or written consent of the AeroAstro Shareholders, each AeroAstro Shareholder shall be deemed to have consented to and irrevocably constituted and appointed ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ (the “Shareholders’ Representative”) to act as such AeroAstro Shareholder’s true and lawful attorney-in-fact and agent, with full power of substitution for him and in his name, place and ▇▇▇▇▇, in any and all capacities, to do any and all things and execute any and all documents which may be necessary, convenient or appropriate to facilitate the consummation of the transactions contemplated by adopting this Agreement, including but not limited to: (i) execution of the documents and certificates pursuant to this Agreement; (ii) receipt of payments under or pursuant to this Agreement and disbursement thereof to the transactions AeroAstro Shareholders and others, as contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in by this Agreement and the Option Agreement, (ii) to give and receive notices and communications, ; (iii) receipt and forwarding of notices and communications pursuant to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect this Agreement; (iv) administration of the provisions of this Agreement and the Option Escrow Agreement; (v) giving or agreeing to, (iv) to retain legal counselon behalf of the AeroAstro Shareholders, accountantsany and all consents, consultants and other expertswaivers, and incur any other reasonable expensesamendments or modifications deemed by the Shareholders’ Representative, in connection withhis discretion, to be necessary or appropriate under this Agreement and to take all actions the execution or delivery of any documents that may be necessary or appropriate in the judgment connection therewith; (vi) subject to Delaware Law, amending this Agreement (other than this Section 1.12), or any of the instruments to be delivered to Radyne or Merger Sub pursuant to this Agreement; (vii) disputing or refraining from disputing, on behalf of the AeroAstro Shareholders’ Representative for the accomplishment of, any claim made by Radyne, Merger Sub or the Surviving Corporation under this Agreement and any and all agreements and documents required or contemplated by this Agreement (“Transaction Documents”); (viii) negotiating and compromising, on behalf of each such AeroAstro Shareholder, any dispute that may arise under, and exercising or refraining from exercising any remedies available under, the Transaction Documents; (ix) executing, on behalf of each such AeroAstro Shareholder, any settlement agreement, release or other document with respect to such dispute or remedy; and (x) engaging attorneys, accountants, agents or consultants on behalf of the foregoingAeroAstro Shareholders in connection with the Transaction Documents and paying any fees related thereto. K Laser If, for any reason, ▇▇. ▇▇▇▇▇▇▇ is incapacitated or unable to act, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ is hereby accepts its appointment appointed as his successor to act as the Shareholders’ Representative. Such agency may Radyne shall be changed entitled to send all notices to, and to rely upon all consents and approvals given, and all other actions taken by the holders incumbent Shareholders’ Representative until such time as Radyne receives actual notice of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) dayssuch Shareholders’ prior written notice to all of the Selling Parties and to Parent and PurchaserRepresentative’s death or incapacity. No bond Radyne shall be required entitled to rely upon the response of the Shareholders’ RepresentativeRepresentative in all matters pertaining to the subject matter hereof, including, without limitation, any consent or approval provided or contemplated hereunder to be given by or on behalf of, or obtained from, the AeroAstro Shareholders. Notices or communications Notice to or from service upon the Shareholders’ Representative shall be deemed to Parent constitute good and sufficient notice or service upon all of the AeroAstro Shareholders for all matters, including without limitation, all notices of or demands for legal processes. Notwithstanding the foregoing, in the event that the Shareholders’ Representative, with the advice of counsel, is of the opinion that he requires further authorization or advice from the AeroAstro Shareholders on any matters concerning this Agreement or the Transaction Documents, the Shareholders’ Representative shall be entitled to seek such further authorization from the AeroAstro Shareholders prior to acting on their behalf. In such event, each AeroAstro Shareholder shall have a number of votes equal to the number of shares of AeroAstro Common Stock held by such AeroAstro Shareholder immediately prior to the Effective Time and the authorization of a majority of such number of votes shall be binding on all of the AeroAstro Shareholders and shall constitute notice to or from each the authorization of the Selling PartiesAeroAstro Shareholders.
(b) Immediately upon the adoption of this Agreement by the requisite vote or written consent of the AeroAstro Shareholders, the following provisions of this Section 1.12(b) shall be binding upon and enforceable against each AeroAstro Shareholder by the Shareholders’ Representative:
(i) Neither the Shareholders’ Representative nor any of AeroAstro’s directors, officers, agents or employees, if any, shall be liable to any AeroAstro Shareholder for any error of judgment, or any action taken, suffered or omitted to be taken by the Shareholders’ Representative under this Agreement or the Escrow Agreement, except for notices related in the case of his gross negligence, bad faith or willful misconduct. The Shareholders’ Representative may consult with legal counsel, independent public accountants and other experts selected by him. The Shareholders’ Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any action for which of the Selling Parties’ consent is required under the terms terms, covenants or conditions of this Agreement or applicable lawthe Escrow Agreement. As to any matters not expressly provided for in this Agreement or the Escrow Agreement, the Shareholders’ Representative shall not exercise any discretion or take any action. Each Selling Party agrees AeroAstro Shareholder shall indemnify and hold harmless and reimburse the Shareholders’ Representative from and against such AeroAstro Shareholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholders’ Representative arising out of or resulting from any action taken or omitted to receive correspondence be taken by the Shareholders’ Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Shareholders’ Representative’s gross negligence, including in electronic form.bad faith or willful misconduct; and
(bii) The Shareholders’ Representative shall not be liable entitled to any fee, commission or other compensation for any act done or omitted the performance of his services hereunder but shall be entitled to the payment of all his expenses incurred as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant Representative. In connection with the foregoing, at the Closing, Radyne shall deliver to the advice Shareholders’ Representative, for the benefit of counsel shall the AeroAstro Shareholders, $150,000 of the Cash Consideration (the “Expense Fund”) by wire transfer of immediately available funds to an account designated in writing by the Shareholders’ Representative, to be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify used by the Shareholders’ Representative to pay expenses incurred by the Shareholders’ Representative in his capacity as the Shareholders’ Representative. Once the Shareholders’ Representative determines, in his sole discretion, that the Shareholders’ Representative will not incur any additional expenses in his capacity as the Shareholders’ Representative, the Shareholders’ Representative shall distribute the remaining unused Expense Fund, if any, pro rata to the AeroAstro Shareholders (less any amounts required to be withheld under foreign, federal, state or local laws). The AeroAstro Shareholders, including without limitation, the Shareholders’ Representative, acknowledge and hold it harmless against agree that neither Radyne nor AeroAstro shall have any lossliability regarding the allocation and distribution of the Expense Fund pursuant to this Section 1.12(b)(ii).
(iii) The foregoing Sections 1.12(b)(i) and (ii) represent an agreement solely among the AeroAstro Shareholders and the Shareholders’ Representative, liability and Sections 1.12(b)(i) and (ii) shall not be binding upon Radyne, Merger Sub or expense incurred AeroAstro.
(c) The adoption of this Agreement by the requisite vote or written consent of the AeroAstro Shareholders shall also be deemed to constitute approval by the AeroAstro Shareholders of all arrangements relating to the transactions contemplated hereby and to the provisions hereof binding upon the AeroAstro Shareholders, including, without gross negligence or bad faith on limitation, the part provisions of this Section 1.12, the Escrow Agreement and of all of the arrangements relating thereto, including the placement of the Escrow Amount in escrow, the appointment of the Shareholders’ Representative and arising out the provisions of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithSection 8.2.
(cd) Notwithstanding the foregoing provisions in In this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative term “Per Share Expense Fund Amount” shall only have be the power or authority to act with respect to matters pertaining to Expense Fund divided by the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way number of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesFully Diluted Shares.
Appears in 2 contracts
Sources: Merger Agreement (Radyne Corp), Merger Agreement (Radyne Corp)
Shareholders’ Representative. (a) The Selling PartiesBy executing this Agreement, each of the Shareholders hereby irrevocably constitutes and appoints Executive, acting as hereinafter provided, as his or her attorney-in-fact and agent in his or her name, place and stea▇ ▇▇ connection with the transactions contemplated by adopting this Agreement and matters arising therefrom subsequent to the transactions contemplated herebydate hereof, and acknowledges that such appointment is coupled with an interest. By executing and delivering this Agreement, Executive hereby irrevocably appoint (i) accepts his appointment and constitute K Laser authorization as Shareholders' Representative to act as attorney-in-fact and agent in the name, place and stead of each of the Shareholders in accordance with the terms of this Agreement, and (ii) agrees to perform his duties and obligations hereunder.
(b) Each Shareholder authorizes the Shareholders’ ' Representative for in the name and on behalf of the Selling Parties, with the authority such Shareholder:
(i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices any notice required or permitted under this Agreement;
(ii) to exercise any rights and communications, to take any action required or permitted to be taken under this Agreement;
(iii) to agree to, negotiate, enter into execute and provide amendments deliver any amendment to or modification of this Agreement or any of the provisions hereof and supplements any waiver or consent hereunder;
(iv) to dispute or to refrain from disputing any claim made by Parent or Subsidiary under this Agreement and waivers in respect any other agreements, instruments and documents to be delivered by or on behalf of such Shareholder pursuant to this Agreement;
(v) to negotiate and compromise any dispute which may arise, and to exercise or refrain from exercising remedies available under this Agreement and the Option Agreementother agreements, (iv) instruments and documents delivered or to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary be delivered by or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted Shareholder pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to sign any releases or other documents with respect to any Selling Party such dispute or remedy; and
(vi) to give such instructions and to do such other things and refrain from doing such other things as the Shareholders' Representative shall deem necessary or appropriate to carry out the provisions of this Agreement and any other agreements, instruments and documents delivered or to be delivered by or on behalf of such Shareholder pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 2 contracts
Sources: Merger Agreement (Shaw Industries Inc), Merger Agreement (Saul Julian)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf Each of the Selling PartiesShareholders hereby constitutes and appoints G2BE as its representative (the "Shareholders' Representative") and its true and lawful attorney in fact, with the full power and authority in its name on its behalf:
(i) to perform act on such Shareholder's behalf in the obligations absolute discretion of the Shareholders’ ' Representative set forth in with respect to all matters relating to this Agreement and the Option Agreement, (ii) to give including the execution and receive notices and communicationsdelivery of any amendment, (iii) to agree tosupplement, negotiate, enter into and provide amendments and supplements to and waivers in respect or modification of this Agreement and the Option any waiver of any claim or right arising out of this Agreement; and
(ii) in general, (iv) to retain legal counseldo all things and to perform all acts, accountantsincluding executing and delivering all agreements, consultants certificates, receipts, instructions, and other experts, and incur any other reasonable expenses, instruments contemplated by or deemed advisable to effectuate the provisions in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formSection 3.9.
(b) The Shareholders’ Representative appointment and grant of power and authority in Section 3.9(a) is coupled with an interest and is in consideration of the mutual covenants made in this Agreement and is irrevocable and shall not be liable for terminated by any act done of any Shareholder or omitted hereunder as by operation of law, whether by the death or incapacity of any Shareholder or by occurrence of any other event. Each Shareholder hereby consents to the taking of any and all actions and the making of any decisions required and permitted to be taken or made by the Shareholders’ ' Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencethis Section 3.9. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify Each Shareholder agrees that the Shareholders’ ' Representative and hold it harmless against shall have no obligation or liability to any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and person for any action taken or omitted by the Shareholders’ ' Representative based on such reliance shall be deemed conclusively to have been taken in good faith, and each Shareholder shall indemnify and hold harmless the Shareholders' Representative from, and shall pay to the Shareholders' Representative the amount of, or reimburse the Shareholders' Representative for, any Loss that the Shareholders' Representative may suffer, sustain, or become subject to as a result of any such action or omission by the Shareholders' Representative under this Agreement.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, Brigade and G2BE shall be entitled to rely upon any documents or any provision to the contrary set forth in this Agreement or the Option Agreement, other paper delivered by the Shareholders’ ' Representative shall only have as being authorized by the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)Shareholders, and the powers conferred on the Shareholders’ Representative herein Brigade and in the Option Agreement G2BE shall not authorize be liable to any Shareholder for any action taken or empower the Shareholders’ Representative to do or cause omitted to be done any action taken by Brigade and G2BE based on such reliance.
(including by amending, modifying or waiving any provision of this Agreement or the Option Agreementd) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other Until all obligations or liabilities under this Agreement (includingshall have been discharged, for the avoidance of doubtShareholders who, any change immediately prior to the nature Closing are entitled in the aggregate to receive more than 50% of the indemnity obligations)Brigade Common Shares, in each case with respect may, from time to clauses (i)time upon notice to Brigade and G2BE, (ii) and (iii) of this Section 8.1(c), without first obtaining appoint a new Shareholders' Representative upon the prior written approval resignation of the Selling PartiesShareholders' Representative. If, after the resignation of the Shareholders' Representative, a successor Shareholders' Representative shall not have been appointed by the Shareholders within 15 Business Days after a notice to Brigade and G2BE, Brigade and G2BE may appoint a Shareholders' Representative from among the Shareholders to fill any vacancy so created by notice of such appointment to the Shareholders.
Appears in 2 contracts
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Sellers hereby irrevocably appoint Shareholders' Representative as their lawful attorney-in-fact to act in the name, place and constitute K Laser as stead of Sellers to execute and deliver the Shareholders’ Representative stock powers for and on behalf of the Selling PartiesShares, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreementcertificates referred to in Section 7.1(f), (ii) to give and receive notices and communicationsany amendments, (iii) to agree tosupplements, negotiatemodifications, enter into and provide amendments and supplements to and waivers in respect or terminations of this Agreement and to receive delivery of, and all payments under, the Option AgreementNote and, as their agent with respect to, and with the full power to resolve, all questions, disputes, conflicts and controversies concerning (a) amounts payable under the Note, (ivb) matters concerning the adjustment to retain legal counsel, accountants, consultants the Initial Purchase Price under Sections 2.5 and other experts2.6, and incur any other reasonable expenses, in connection with, (c) all matters concerning Buyer Claims under Article VIII. Shareholders' Representative is authorized to give all notices and to take all actions necessary deemed appropriate by and with respect to such matters, to agree to setoffs against the Note and will have no liability or appropriate obligation to any Seller for any act or omission taken in good faith in such capacity. Notwithstanding the foregoing, Shareholders' Representative shall have no authority as the lawful attorney-in-fact to act in the judgment name, place and stead of the Optionholder with respect to any amendment, supplement, modification, waiver or termination of this Agreement. This appointment is coupled with an interest and is irrevocable by each Seller, and shall terminate only upon the later to occur of (i) termination of Sellers' obligations pursuant to Article III or (ii) payments of all amounts due under the Note and distribution thereof to the Sellers. Notwithstanding the foregoing, in the event Shareholders’ ' Representative resigns, is incapacitated, makes a general assignment for the accomplishment ofbenefit of its creditors, any or all is the subject of the foregoing. K Laser hereby accepts its appointment as the bankruptcy, reorganization, liquidation, dissolution or similar proceedings, Sellers shall use reasonable efforts to appoint a new Shareholders’ Representative. Such agency may be changed ' Representative by the holders vote of a majority in interest of the shares Sellers, with each Seller to have that number of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formvotes determined by multiplying 100,000 by such Seller's Pro Rata Share.
(bm) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part Section 7.1(h) of the Shareholders’ Representative Amended and arising out of or Restated Agreement is amended to provide in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties full as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.follows:
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesShareholders irrevocably make, by adopting this Agreement constitute and appoint ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as their agent (the transactions contemplated hereby, hereby irrevocably appoint "Shareholders' Representative") and constitute K Laser as authorize and empower him to fulfill the role of Shareholders’ ' Representative for hereunder and on behalf under the Escrow Agreement. In the event of the Selling Parties, with the authority (i) to perform the obligations resignation of the Shareholders’ ' Representative, the resigning Shareholders' Representative set forth shall appoint a successor from among the Shareholders and who shall agree in this Agreement and writing to accept such appointment. If the Option AgreementShareholders' Representative should die or become incapacitated, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect his successor shall be appointed within 15 days of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary his death or appropriate in the judgment incapacity by a majority of the Shareholders’ , and such successor shall be a Shareholder. The choice of a successor Shareholders' Representative for the accomplishment of, appointed in any or manner permitted above shall be final and binding upon all of the foregoingShareholders. K Laser hereby accepts its appointment as the The decisions and actions of any successor Shareholders’ Representative. Such agency may be changed by the holders ' Representative shall be, for all purposes, those of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ ' Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formas if originally named herein.
(b) Each Shareholder has made, constituted and appointed and by the approval of this Agreement hereby irrevocably makes, constitutes and appoints the Shareholders Representative as such person's true and lawful attorney in fact and agent, for such person and in such person's name, place and stead for all purposes necessary or desirable in order for the Shareholders' Representative to take the actions contemplated by this Agreement and the Escrow Agreement on behalf of the Shareholders, with the ability to execute and deliver all instruments, certificates and other documents of every kind incident to the foregoing to all intents and purposes and with the same effect as such Shareholder could do personally, and each such Shareholder hereby ratifies and confirms as his, her or its own act, all that the Shareholders' Representative shall do or cause to be done pursuant to the provisions hereof.
(c) The death or incapacity of any Shareholder shall not terminate the authority and agency of the Shareholders’ ' Representative.
(d) Buyer shall be entitled to rely exclusively upon any communication given or other action taken by the Shareholders' Representative pursuant hereto and shall not be liable for any act done action taken or omitted hereunder as not taken in reliance upon the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant ' Representative. Buyer shall not be obligated to inquire as to the advice authority of counsel shall be conclusive evidence the Shareholders' Representative to take any action that the Shareholders' Representative takes or purports to take on behalf of such good faith and absence of negligence. the Shareholders.
(e) The Selling Parties shall severally (and not jointly), according Shareholders agree to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ ' Representative and to hold it him or her harmless against any and all loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ ' Representative and arising out of or in connection with his or her duties as Shareholders' Representative, including the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements reasonable costs and opinions prepared or presented by counsel or other professionals retained by it, and any action taken expenses incurred by the Shareholders’ ' Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
defending against any claim or liability in connection herewith (c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement"Representative's Expenses"), and authorize the powers conferred on Shareholder's Representative to receive following the first anniversary of the Effective Date a portion of the amount by which the then remaining balance of the Escrowed Funds exceeds the sum of the Tentatively Impounded Funds (as defined in the Escrow Agreement) equal to the Representative's Expenses in accordance with Section 6(f) of the Escrow Agreement, subject to Section 11.16(f) below; provided, however, that Buyer shall pay all reasonable Representative's Expenses incurred by the Shareholders Representative and its counsel in defending against any Escrow Claim in the event that the Shareholders’ ' Representative herein prevails in such defense, and in the Option Agreement shall not Shareholders and Buyer authorize or empower a maximum amount equal to the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision lesser of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option AgreementFive Thousand Dollars ($5,000.00), or (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature actual amount of the indemnity obligations), reasonable Representative's Expenses incurred by the Shareholders' Representative and its counsel in each case with respect to clauses (i), (ii) and (iii) carrying out the provisions of this Section 8.1(c11.16 and Section 6 of the Option Cancellation Agreements (as evidenced by a written notice from the Shareholders' Representative to Buyer setting forth the actual amount and a description of such Representative's Expenses), without to be remitted prior to the first obtaining the prior written approval anniversary of the Selling PartiesEffective Date to the Shareholders' Representative out of the Escrowed Funds upon the Escrow Agent's receipt of written notice from Buyer stating the amount to be so remitted
(f) Each Shareholder shall have the right to receive upon written request therefor an accounting of the Representative's Expenses for which the Shareholder's Representative is reimbursed from the Escrowed Funds pursuant to Section 11.16(e) hereof.
Appears in 1 contract
Sources: Merger Agreement (Lamcor Inc)
Shareholders’ Representative. (aA) The Selling PartiesFor purposes of this Agreement, by adopting this Agreement and Seller hereby consents to the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser appointment of ▇▇▇▇ ▇▇▇▇▇ to act as the Shareholders’ ' Representative and as agent and attorney-in-fact for and on behalf of Seller, and the Selling Partiestaking by the Shareholders' Representative of any and all actions and the making of any decisions required or permitted to be taken by Seller under this Agreement, with including without limitation, the authority exercise of the power to (i) authorize delivery to perform the obligations any Indemnitee of the Shareholders’ Representative set forth Escrow Shares in this Agreement and the Option Agreementsatisfaction of any Damages or Claimed Amounts, (ii) agree to give negotiate, enter into settlements and receive notices and communicationscompromises with respect to such Damages or Claimed Amounts, (iii) pursuant to agree tothe terms of the Purchase Agreement, negotiatemake and deliver to the Escrow Agent, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreementtogether with Purchaser, a Positive Determination or a Negative Determination, (iv) to retain legal counsel, accountants, consultants and other expertsresolve any claims or disputes hereunder, and incur any other reasonable expenses, in connection with, and to (v) take all actions necessary or appropriate in the judgment of the Shareholders’ ' Representative for the accomplishment of, any or of the foregoing and all of the foregoingother terms, conditions and limitations contained in this Agreement. K Laser As evidenced by the execution of this Agreement by the Shareholders' Representative, the Shareholders' Representative hereby accepts its such appointment as agent and attorney-in-fact to act on behalf of Seller with respect to the Shareholders’ Representativematters contemplated by this Agreement. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Seller from time to time upon not less than ten (10) days’ ' prior written notice to all of Purchaser and the Selling Parties and to Parent and PurchaserEscrow Agent. No bond shall be required of the Shareholders’ ' Representative. Notices or communications to or from , and the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ ' Representative shall not be liable receive no compensation for any act done services. A decision, act, consent or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part instruction of the Shareholders’ ' Representative and arising out shall constitute a decision of or in connection with the acceptance or administration Seller for whom shares of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative Purchaser Common Stock otherwise issuable to expend or risk its own funds or otherwise incur any financial liability Seller are deposited in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements Escrow Account and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithfinal, binding and conclusive upon Seller.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Imageware Systems Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Xicom Shareholders hereby irrevocably constitute and appoint and constitute K Laser as W▇▇▇▇▇ ▇. ▇▇▇▇ (the “Representative” or the “Shareholders’ Representative Representative”) to act as their true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution for him and in his name, place and s▇▇▇▇, in any and all capacities, to execute any and all agreements and documents required or contemplated by this Agreement, including any amendments or waivers hereto, on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Xicom Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take deal with all claims under this Agreement, including any claims for indemnification, and settlements in respect thereto and to notify, negotiate and resolve any and all issues concerning the Final Closing Balance Sheet with Radyne. If, for any reason, M▇. ▇▇▇▇ is incapacitated or unable to act, R▇▇▇▇▇ ▇. ▇▇▇▇▇▇ is hereby appointed as his successor to act as the Representative. Radyne shall be entitled to send all notices to, and to rely upon all consents and approvals given, and all other actions necessary taken by the incumbent Representative until such time as Radyne receives actual notice of such Representative’s death or appropriate in incapacity. Radyne shall be entitled to rely upon the judgment response of the Shareholders’ Representative for in all matters pertaining to the accomplishment subject matter hereof, including, without limitation, any consent or approval provided or contemplated hereunder to be given by or on behalf of, any or obtained from, the Xicom Shareholders. Notice to or service upon the Representative shall be deemed to constitute good and sufficient notice or service upon all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to Xicom Shareholders for all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representativematters, including in electronic formwithout limitation, all notices of or demands for legal processes.
(b) The following represents an agreement solely among the Xicom Shareholders and the Shareholders’ Representative shall not be liable for any act done Representative, and none of Radyne, Merger Sub or omitted hereunder as Xicom is a party hereto: Neither the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of nor any of its powersdirectors, rightsofficers, duties agents or privileges employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement on behalf or the Escrow Agreement, except in the case of any Selling Partiesits gross negligence, bad faith or willful misconduct. The Shareholders’ Representative may in good faith rely conclusively upon the informationconsult with legal counsel, reports, statements independent public accountants and opinions prepared or presented by counsel or other professionals retained experts selected by it, and any action taken by the . The Shareholders’ Representative based on such reliance shall be deemed conclusively not have any duty to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, ascertain or any provision to inquire as to the contrary set forth performance or observance of any of the terms, covenants or conditions of this Agreement or the Escrow Agreement. As to any matters not expressly provided for in this Agreement or the Option Escrow Agreement, the Shareholders’ Representative shall only have the power not exercise any discretion or authority to act with respect to matters pertaining to the Selling Parties as a group take any action. Each Xicom Shareholder shall indemnify and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), hold harmless and the powers conferred on reimburse the Shareholders’ Representative herein from and in the Option Agreement shall not authorize against such Xicom Shareholder’s ratable share of any and all liabilities, losses, damages, claims, costs or empower expenses suffered or incurred by the Shareholders’ Representative to do arising out of or cause resulting from any action taken or omitted to be done any action (including taken by amending, modifying or waiving any provision of the Shareholders’ Representative under this Agreement or the Option Escrow Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner , other than as permitted pursuant to this Agreement and such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Option AgreementShareholders’ Representative’s gross negligence, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement bad faith or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partieswillful misconduct.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Partiesshareholders of the Company, by adopting approving this Agreement and the transactions contemplated hereby or accepting any Merger Consideration, hereby irrevocably appoint ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ (each, a "Shareholders' Representative Member" and collectively, the "Shareholders' Representative") as their agent and attorney-in-fact for all purposes under this Agreement with full and exclusive power and authority to bind such shareholders with regard to all matters arising under and pursuant to this Agreement and the transactions contemplated hereby, including for purposes of Article X and Sections 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.10, 3.11, 6.3 and 11.2 or otherwise relating to the rights to receive payments hereunder and consent to the taking by the Shareholders' Representative of any and all actions and the making of any decisions in connection with or related to the foregoing; provided that only the act of a majority of Shareholders' Representative Members shall be binding and determinative as the act of the Shareholders' Representative. By its execution below, the Shareholders' Representative hereby irrevocably appoint and constitute K Laser accepts its appointment as the Shareholders’ ' Representative for purposes of this Agreement. Parent shall be entitled to deal exclusively with the Shareholders' Representative on all matters arising under and pursuant to this Agreement and the transactions contemplated hereby and shall be entitled to rely on any and all action taken or not taken by the Shareholders' Representative without independent investigation and notwithstanding any knowledge of any dispute or disagreement among the shareholders of the Company or the Shareholders' Representative Members. If any of the Shareholders' Representative Members shall die, become disabled or otherwise be unable to fulfill his or her responsibilities as agent and attorney-in-fact of the Company shareholders, then the remaining Shareholders' Representative Members shall, within ten (10) days after a request by Parent, appoint a successor Shareholders' Representative Member reasonably satisfactory to Parent. If there are no remaining Shareholders' Representative Members or the remaining Shareholders' Representative Members fail to designate a successor Shareholders' Representative Member within ten (10) days after Parent's request as provided above, then Parent may appoint a Shareholders' Representative. Any such successor shall become the "Shareholders' Representative" for purposes of this Agreement.
(b) Shareholders' Representative shall be authorized to act on behalf of each shareholder of the Selling Parties, Company for all purposes of this Agreement with the full and exclusive power and authority to represent and bind such shareholder with respect to all matters arising under and pursuant to this Agreement and the transactions contemplated hereby (including the taking by the Shareholders' Representative of any and all actions, asserting any rights and the making of any decisions required or permitted to be taken) on such shareholder's behalf, including (i) to perform consummate the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreementtransactions contemplated herein, (ii) to give pay all previously unpaid expenses incurred by the Company in connection with the negotiation and receive notices and communicationsperformance of this Agreement (whether incurred on or after the date hereof), (iii) to determine any amounts paid or payable with respect to, and pay from the aggregate Merger Consideration, any amounts due in connection with the Contingent Issuance and to disburse any funds received hereunder to such shareholder and each other shareholder, (iv) to execute such further instruments of assignment as Parent shall reasonably request, (v) to execute and deliver on behalf of any shareholder any waiver hereto, (vi) to take all other actions to be taken by or on behalf of the shareholders in connection herewith, (vii) to withhold funds to pay shareholder expenses and obligations related to this Agreement, (viii) execute and deliver any consent or waiver contemplated hereby, including under Section 3.5, and (ix) to do each and every act and exercise any and all rights which the Company or the shareholders are permitted or required to do or exercise under this Agreement.
(c) As part of the power and authority granted under this Section 11.1 and not in limitation, the Shareholders' Representative is authorized to (i) bring, defend and/or resolve any claim made pursuant to Article X or other disputes under this Agreement or relating to the transactions contemplated hereby, (ii) to agree to, negotiate, enter into settlements and provide amendments compromises of, to bring suit or seek arbitration and supplements to comply with orders of courts and waivers in awards of arbitrators with respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertssuch claims, and incur any other reasonable expenses, in connection with, and (iii) to take all actions necessary or appropriate in the judgment of the Shareholders’ ' Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as .
(d) Neither the Shareholders’ Representative. Such agency may be changed ' Representative nor any agent employed by the holders of a majority in interest him shall incur any liability to any shareholder by virtue of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required failure or refusal of the Shareholders’ Representative. Notices ' Representative for any reason to consummate the transactions contemplated hereby or communications relating to or from the Shareholders’ Representative to Parent shall constitute notice to or from each performance of the Selling Partiesits other duties hereunder, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement actions or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representativeomissions constituting fraud, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithintentional misconduct.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesEach of the Company Shareholders hereby appoints Mich▇▇▇ ▇. ▇▇▇▇▇ ▇▇ agent and attorney-in-fact (the "Shareholder Representative") for each Company Shareholder, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling PartiesCompany Shareholders, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to authorize delivery to Parent of shares of Parent Common Stock from the Escrow Fund in satisfaction of claims by Parent Indemnified Parties, to object to such deliveries, to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expenses, in connection withdemand 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 Shareholders’ Shareholder Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its Such appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Company Shareholders from time to time upon not less than ten thirty (1030) days’ days prior written notice to all Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a majority in interest in the Escrow Fund agree to such removal and to the identity of the Selling Parties and to Parent and Purchasersubstituted representative. Any vacancy in the position of Shareholder Representative may be filled by approval of the holders of a majority in interest in the Escrow Fund. No bond shall be required of the Shareholders’ Shareholder Representative, and the Shareholder Representative shall not receive compensation for his or her services. Notices or communications to or from the Shareholders’ Shareholder Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Company Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Shareholder Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Shareholder Representative while acting in good without gross negligence, bad faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencewillful misconduct. The Selling Parties Company Shareholders on whose behalf the Escrow Shares are place in escrow shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Shareholder Representative and hold it the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or negligence, bad faith or willful misconduct on the part of the Shareholders’ Shareholder Representative and arising out of or in connection with the acceptance or administration of his the Shareholder Representative's duties hereunder. No provision of this Agreement shall require , including the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance reasonable fees and expenses of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by legal counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithShareholder Representative.
(c) Notwithstanding A decision, act, consent or instruction of the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Shareholder Representative shall only have constitute a decision of all Company Shareholders for whom a portion of the power or authority Escrow Shares otherwise issuable to act with respect to matters pertaining to the Selling Parties as a group them are placed in escrow and not matters pertaining to an individual Selling Party (for example but not by way shall be final, binding and conclusive upon each of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)such Company Shareholders, and the powers conferred on Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholders’ Shareholder Representative herein as being the decision, act, consent or instruction of each and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done every such Company Shareholder. The Escrow Agent and Parent are hereby relieved from any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder liability to any Selling Party being distributed person for any acts done by them in any manner other than as permitted pursuant to this Agreement and the Option Agreementaccordance with such decision, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement act, consent or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature instruction of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesShareholder Representative.
Appears in 1 contract
Sources: Merger Agreement (Landacorp Inc)
Shareholders’ Representative. (a) The Selling PartiesResidual Holders shall be bound by all actions taken by the Shareholders Representative in its capacity thereof that are within the authority granted pursuant to the Shareholders Representative Agreement. The Shareholders Representative shall at all times act in its capacity as Shareholders Representative in a manner that the Shareholders Representative believes in good faith to be in the best interest of the Residual Holders. Neither the Shareholders Representative nor any of its directors, by adopting 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 and or the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Shareholders Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communicationsexcept in the case of gross negligence, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain bad faith or willful misconduct. The Shareholders Representative may consult with legal counsel, accountants, consultants independent public accountants and other experts, experts selected by it and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done action taken or omitted hereunder as the Shareholders’ Representative while acting to be taken in good faith and without negligence and any act done or omitted pursuant to by it in accordance with the advice of counsel shall be conclusive evidence of such good faith and absence of negligencecounsel, accountants or experts. The Selling Parties Shareholders Representative shall severally (and not jointly)have any duty to ascertain or to inquire as to the performance or observance of any of the terms, according covenants or conditions of this Agreement or any of the Transactions contemplated hereby. As to each Selling Parties’ pro-rata interest any matters not expressly provided for in the shares of EverestShareholders Representative Agreement or this Agreement, the Shareholders Representative shall not be required to exercise any discretion or take any action. Each Residual Holder severally shall indemnify the Shareholders’ Representative and hold it harmless and reimburse the Shareholders Representative from and against such Residual Holder's ratable share of any lossand all liabilities, liability losses, damages, claims, costs or expense expenses suffered or incurred without gross negligence or bad faith on by the part of the Shareholders’ Shareholders Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and resulting from any action taken or omitted to be taken by the Shareholders’ Shareholders Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Option AgreementShareholders Representative's gross negligence, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement bad faith or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partieswillful misconduct.
Appears in 1 contract
Sources: Merger Agreement (Integra Lifesciences Holdings Corp)
Shareholders’ Representative. (a) The Selling Parties, by adopting By virtue of the adoption of this Agreement and the transactions contemplated hereby, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Company Securityholder shall be deemed to have appointed the designation of, and hereby irrevocably appoint and constitute K Laser designates, ▇▇▇▇▇▇▇ ▇▇▇▇▇ as the Shareholders’ Representative for and on behalf of the Selling Parties, all purposes in connection with the authority negotiation and execution of this Agreement, the Additional Agreements and the agreements ancillary hereto, including, but not limited to, (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communicationscommunications to Purchaser for any purpose under this Agreement and the Additional Agreements, (iiiii) to agree to, negotiate, enter into settlements and provide amendments compromises of and supplements demand arbitration and comply with orders of courts and awards of arbitrators with respect to any indemnification claims (including Third-Party Claims) under Section 10.1 or, following the Closing, other disputes arising under or related to this Agreement, (iii) to enter into and waivers in respect deliver the Escrow Agreement on behalf of this Agreement and each of the Option AgreementCompany Securityholders, (iv) to retain legal counselauthorize or object to delivery to Purchaser of the Escrow Fund, accountantsor any portion thereof, consultants in satisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow Agreement, (v) to act on behalf of Company Securityholders in accordance with the provisions of the Agreement, the securities described herein and other experts, and incur any other reasonable expenses, document or instrument executed in connection with, with the Agreement and the Merger and (vi) to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the The Shareholders’ RepresentativeRepresentative may resign at any time. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Company Securityholders from time to time upon not no less than ten twenty (1020) days’ days prior written notice to all the Purchaser, provided, however, that the Shareholders’ Representative may not be removed unless holders of a majority of the Selling Parties and shares of Company Capital Stock (on an as converted to Parent and PurchaserCompany Shares) outstanding immediately prior to the Effective Time agree to such removal. Any vacancy in the position of Shareholders’ Representative may be filled by approval of the holders of a majority of the shares of Company Capital Stock (on an as converted to Company Shares) outstanding immediately prior to the Effective Time. No bond shall be required of the Shareholders’ Representative. Notices The Shareholders’ Representative will incur no liability of any kind with respect to any action or communications to or from omission by the Shareholders’ Representative in connection with the Shareholders’ Representative’s services pursuant to Parent shall constitute notice to or from each of the Selling Partiesthis Agreement and any agreements ancillary hereto, except for notices related to any action for which in the Selling Parties’ consent is required under the terms event of this Agreement or applicable law. Each Selling Party agrees to receive correspondence liability directly resulting from the Shareholders’ Representative, including in electronic form.
(b) ’s gross negligence or willful misconduct. The Shareholders’ Representative shall not be liable for any act done action or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted omission pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencecounsel. The Selling Parties shall severally (Company Securityholders will indemnify, defend and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify hold harmless the Shareholders’ Representative from and hold it harmless against any lossand all losses, liability or liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense incurred without gross negligence or bad faith on the part of the Shareholders’ document location, duplication and shipment) (collectively, “Representative and Losses”) arising out of or in connection with the acceptance or administration of his duties hereunder. No provision Shareholders’ Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that Representative Losses shall require not include costs (other than third party expenses) incurred by the Shareholders’ Representative in the ordinary course of business of the Shareholders’ Representative under the engagement letter entered into by the Shareholders’ Representative, the Company, and certain of the Company Securityholders; provided, further, 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 Shareholders’ Representative, the Shareholders’ Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Company Securityholders, any such Representative Losses may be recovered by the Shareholders’ Representative from (x) the funds in the Expense Fund, and (y) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Company Securityholders; provided, that while this section allows the Shareholders’ Representative to expend be paid from the aforementioned sources of funds, this does not relieve the Company Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powersincurred, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by nor does it prevent the Shareholders’ Representative based on such reliance shall be deemed conclusively from seeking any remedies available to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, it at law or any provision to the contrary set forth in this Agreement or the Option Agreement, otherwise. In no event will the Shareholders’ Representative shall only have be required to advance its own funds on behalf of the power Company Securityholders or authority to act with respect to matters pertaining otherwise. Notwithstanding anything in this Agreement to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitationcontrary, an action any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against an individual Selling Party for hisnon-parties otherwise applicable to, her or its individual breach of a covenant the Company Securityholders set forth elsewhere in this Agreement), and Agreement are not intended to be applicable to the powers conferred on indemnities provided to the Shareholders’ Representative herein and in under this section. The foregoing indemnities will survive the Option Agreement shall not authorize Closing, the resignation or empower removal of the Shareholders’ Representative or the termination of this Agreement. Upon the Closing, the Company will make a payment up to do or cause US$30,000 (the “Expense Fund”) to be done any action (including by amending, modifying or waiving any the Shareholders’ Representative upon provision of this Agreement any receipts and invoices supporting any expenses, which will be used for the purposes of paying directly, or reimbursing the Option Agreement) that (i) results in the amounts payable hereunder to Shareholders’ Representative for, any Selling Party being distributed in any manner other than as permitted third-party expenses pursuant to this Agreement and the Option Agreement, (ii) alters agreements ancillary hereto]. The Company Securityholders will not receive any interest or earnings on the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change Expense Fund and irrevocably transfer and assign to the nature Shareholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Shareholders’ Representative will not be liable for any loss of principal of the indemnity obligations)Expense Fund other than as a result of its gross negligence or willful misconduct. The Shareholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in each case with respect to clauses (i), (ii) and (iii) the event of this Section 8.1(c), without first obtaining bankruptcy. As soon as practicable following the prior written approval completion of the Selling PartiesShareholders’ Representative’s responsibilities, the Shareholders’ Representative will deliver any remaining balance of the Expense Fund to the Company. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company at the time of Closing.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Shareholders hereby irrevocably appoint and constitute K Laser Ampersand as the Shareholders’ Representative for true and lawful agent and attorney-in-fact of the Shareholders (the "SHAREHOLDERS' REPRESENTATIVE") with full power of substitution to act in the name, place and stead of the Shareholders with respect to the surrender of the stock certificates owned by the Shareholders to Buyer in accordance with the terms and provisions of this Agreement, and to act on behalf of the Selling PartiesShareholders in any litigation or arbitration involving this Agreement, do or refrain from doing all such further acts and things, and execute all such documents as the Shareholders' Representative shall deem necessary or appropriate in connection with the authority transactions contemplated by this Agreement, including, without limitation, the power:
(ia) to perform act for the obligations 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 Shareholders and to transact matters of litigation;
(b) to execute and deliver all ancillary agreements, certificates and documents that the Shareholders' Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(c) to do or refrain from doing any further act or deed on behalf of the Shareholders that the Shareholders' Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as fully and completely as the Shareholders could do if personally present; and
(d) to receive service of process in connection with any claims under this Agreement. The appointment of the Shareholders’ ' Representative shall be deemed coupled with an interest and shall be irrevocable, and Buyer may conclusively and absolutely rely, without inquiry, upon any action of the Shareholders' Representative in all matters referred to herein. If Ampersand resigns or is otherwise unable to serve as the Shareholders' Representative, the successor Shareholders' Representative shall be designated in writing by the Shareholders who hold a majority of the shares of Buyer Series A Preferred Stock issued pursuant hereto. If any individual Shareholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Shareholders' Representative pursuant to this Section 1.11 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Shareholders' Representative or Buyer shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Buyer to the Shareholders shall be made to the Shareholders' Representative for the benefit of the Shareholders and shall discharge in full all notice requirements of Buyer to the Shareholders with respect thereto. The Shareholders hereby confirm all that the Shareholders' Representative shall do or cause to be done by virtue of its appointment as the Shareholders' Representative. The Shareholders' Representative shall act for the Shareholders on all of the matters set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of manner the Shareholders’ ' Representative for believes to be in the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in best interest of the shares of Everest of Shareholders and consistent with the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of obligations under this Agreement, but the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ ' Representative shall not be liable responsible to the Shareholders for any act done loss or omitted hereunder as damages the Shareholders may suffer by the performance by the Shareholders’ ' Representative while acting in good faith of its duties under this Agreement, other than loss or damage arising from willful violation of the law by the Shareholders' Representative of its duties under this Agreement. The Shareholders' Representative and without negligence and any act done or omitted pursuant to the advice of counsel its legal representatives shall be conclusive evidence of such good faith held harmless by the Shareholders from and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless indemnified against any loss, liability loss or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and damages arising out of or in connection with the acceptance or administration performance of his its obligations in accordance with the provisions of this Agreement, except for any of the foregoing arising out of the willful violation of the law by the Shareholders' Representative of its duties hereunder. No provision The foregoing indemnity shall survive the resignation or substitution of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith' Representative.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Merger Agreement (TurboWorx, Inc.)
Shareholders’ Representative. Bradley R. Mason (asuch person and any successor or successors bein▇ ▇▇▇ "▇▇▇▇▇▇▇▇▇ers' Representative") The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser shall act as the representative of the Shareholders’ Representative for , and shall be authorized to act on behalf of the Selling PartiesShareholders and to take any and all actions required or permitted to be taken by the Shareholders' Representative under this Agreement or the Escrow Agreement, with respect to any claims (including the authority (isettlement thereof) made by Parent or the Shareholders for indemnification pursuant to perform the obligations of the Shareholders’ Representative set forth in Article VIII or this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect Article XI of this Agreement and with respect to any actions to be taken by the Option Shareholders' Representative pursuant to the terms of the Escrow Agreement. The Shareholders shall be bound by all actions taken by the Shareholders' Representative in its capacity thereof that are within the authority granted herein. The Shareholders' Representative shall at all times act in his or her capacity as Shareholders' Representative in a manner that the Shareholders' Representative believes in good faith to be in the best interest of the Shareholders. Neither the Shareholders' 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 Escrow Agreement, (iv) to retain except in the case of its gross negligence, bad faith or willful misconduct. The Shareholders' Representative may consult with legal counsel, accountants, consultants independent public accountants and other experts, experts selected by it and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done action taken or omitted hereunder as the Shareholders’ Representative while acting to be taken in good faith and without negligence and any act done or omitted pursuant to by it in accordance with the advice of counsel shall be conclusive evidence of such good faith and absence of negligencecounsel, accountants or experts. The Selling Parties Shareholders' Representative shall severally (and not jointly), according have any duty to each Selling Parties’ pro-rata interest in ascertain or to inquire as to the shares performance or observance of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of terms, covenants or in connection with the acceptance or administration of his duties hereunder. No provision conditions of this Agreement shall require or the Shareholders’ Representative Escrow Agreement. As to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth matters not expressly provided for in this Agreement or the Option Escrow Agreement, the Shareholders’ ' Representative shall only have the power not be required to exercise any discretion or authority to act with respect to matters pertaining to the Selling Parties as a group take any action. Each Shareholder severally shall indemnify and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), hold harmless and the powers conferred on reimburse the Shareholders’ ' Representative herein from and in the Option Agreement shall not authorize against such Shareholder's ratable share of any and all liabilities, losses, damages, claims, costs or empower expenses suffered or incurred by the Shareholders’ ' Representative to do arising out of or cause resulting from any action taken or omitted to be done any action (including taken by amending, modifying or waiving any provision of the Shareholders' Representative under this Agreement or the Option Escrow Agreement) that (i) results , other than such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Shareholders' Representative's gross negligence, bad faith or willful misconduct. Notwithstanding anything to the contrary herein or in the amounts payable hereunder Escrow Agreement, (a) the Shareholders' Representative is not authorized to, and shall not, accept on behalf of any Shareholder any Merger Consideration to any Selling Party being distributed which such Shareholder is entitled under this Agreement and (b) the Shareholders' Representative shall not in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreementexercise, or (iii) adds seek to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubtexercise, any change to the nature of the indemnity obligations), in each case voting power whatsoever with respect to clauses (i), (ii) and (iii) shares of this Section 8.1(c), without first obtaining the prior written approval capital stock of the Selling PartiesCompany or Parent now or hereafter owned of record or beneficially by any Shareholder unless the Shareholders' Representative is expressly authorized to do so in a writing signed by such Shareholder. In all matters relating to this Article XI, the Shareholders' Representative shall be the only party entitled to assert the rights of the Shareholders, and the Shareholders' Representative shall perform all of the obligations of the Shareholders hereunder. Parent shall be entitled to rely on all statements, representations and decisions of the Shareholders' Representative.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesBy the execution and delivery of this Agreement, by adopting each Shareholder hereby irrevocably constitutes and appoints ▇▇▇▇ ▇. ▇▇▇▇ (or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ in the event that ▇▇▇▇ ▇. ▇▇▇▇ is unable to act hereunder) as the true and lawful agent and attorney-in-fact (“Shareholders’ Representative”) of the Shareholders with full power of substitution to act in the name, place and stead of the Shareholders with respect to the sale of the Shares in accordance with the terms and provisions of this Agreement Agreement, and to act on behalf of the Shareholders in any litigation or arbitration involving this Agreement, do or refrain from doing all such further acts and things, and execute all such documents as Shareholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated herebyby this Agreement, hereby irrevocably appoint including, without limitation, the power:
(i) to act for the 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 Shareholders and constitute K Laser as to transact matters of litigation;
(ii) to execute and deliver all ancillary agreements, certificates and documents that Shareholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to receive funds and give receipts for funds, including in respect of any Purchase Price payments and adjustments to the Purchase Price;
(iv) to do or refrain from doing any further act or deed on behalf of the Shareholders that the Shareholders’ Representative for deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as fully and on behalf of completely as the Selling Parties, with the authority Shareholders could do if personally present; and
(iv) to perform the obligations receive service of process in connection with any claims under this Agreement.
(b) The appointment of the Shareholders’ Representative set forth in this Agreement shall be deemed coupled with an interest and shall be irrevocable, and the Option Agreement, (ii) to give Purchaser and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expensesPerson may conclusively and absolutely rely, without inquiry, upon any action of the Shareholders’ Representative in connection with, and all matters referred to take all actions necessary herein. All notices required to be made or appropriate in delivered by the judgment of Purchaser to the Shareholders shall be made to the Shareholders’ Representative for the accomplishment of, any or all benefit of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority Shareholders and shall discharge in interest full all notice requirements of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant Purchaser to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act Shareholders with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesthereto.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and Each of the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser Persons designated in the preamble hereto as the Shareholders’ Representative for and on behalf hereunder shall have each of the Selling Partiesrights, with the authority (i) to perform the duties and obligations of the Shareholders’ Representative set forth in this Section 11.1, and, notwithstanding anything to the contrary set forth in this Agreement or any Transaction Document, Parent and the Option AgreementSurviving Corporation (i) shall be entitled to rely on any communication from either of the Persons designated as the Shareholders’ Representative as the action of the Shareholders’ Representative hereunder, and (ii) shall be deemed to have delivered any required notice hereunder or under any Transaction Document to the Shareholders’ Representative upon delivery of notice in accordance with Section 11.2 of this Agreement or any corresponding section of any Transaction Document to either of the Persons designated as the Shareholders’ Representative. The Shareholders’ Representative may be removed at any time upon the written election of the Shareholders representing at least 75% of the aggregate voting power of the Shares immediately prior to the Closing; provided that such Shareholders concurrently elect a replacement Shareholders’ Representative and Parent is given prompt written notice of such replacement by the Shareholders’ Representative. Each Shareholder hereby constitutes and appoints the Shareholders’ Representative, including any replacement of any such Shareholders’ Representative, as attorney-in-fact for such Shareholder with full power and authority to execute any amendment or waiver of this Agreement and any other document or instrument necessary or advisable in order to carry out the provisions of this Agreement, to give and receive notices and communications, (iii) to dispute any claim of any Parent Indemnified Party with respect to indemnification hereunder, to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur to comply with orders of courts with respect to any other reasonable expenses, in connection with, dispute or loss and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as ; provided, however, that the Shareholders’ RepresentativeRepresentative shall not have the power or authority to execute an amendment, waiver, document or other instrument that, notwithstanding any other provision to the contrary, increases in any material respect the obligations or liabilities of any Shareholder without the prior written consent of that Shareholder. Such agency may The Shareholders shall, pro rata, be changed responsible for the payment of all fees and expenses reasonably incurred by the holders of a majority Shareholders’ Representative in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaserperforming its/his duties under this Agreement. No bond shall be required All decisions of the Shareholders’ Representative. Notices or communications to or from Representative may be relied upon by the Shareholders’ Representative to Parent Parent, the Company and any third person, and shall constitute notice to or from be binding and conclusive upon each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formShareholder.
(b) The Shareholders’ Representative shall not be liable liable, responsible or accountable in damages or otherwise to the Shareholders for any loss or damage incurred by reason of any act done or omitted hereunder as failure to act by such Shareholders’ Representative, and each Shareholder shall severally and not jointly, pro rata, indemnify and hold harmless the Shareholders’ Representative while acting in good faith and without negligence and against any act done loss or omitted pursuant damage except to the advice extent that such loss or damage shall have been the result of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without individual gross negligence or bad faith on the part willful misconduct of the such Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. Representative.
(c) The Shareholders’ Representative may shall be entitled to withdraw an amount in good faith rely conclusively upon cash of up to Five Hundred Thousand Dollars ($500,000) in the informationaggregate from the Escrow Funds for the payment of expenses, reportscharges and liabilities, statements and opinions prepared or presented by counsel or other professionals retained by itincluding reasonable attorneys’ fees, and any action taken incurred by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, performance or any provision to the contrary set forth in this Agreement or the Option Agreement, discharge of the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group Representative’s rights, duties and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to obligations under this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature each of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesTransaction Documents.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement M▇. ▇. ▇. ▇▇▇▇▇ shall be constituted and appointed as agent (the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the “Shareholders’ Representative Representative”) for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) MegaSys Shareholders to give and receive notices and communications, (iii) to authorize delivery to Iveda of payments from the MegaSys Shareholders in satisfaction of claims by Iveda to object to such deliveries, to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expenses, in connection withdemand 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 Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as All actions of the Shareholders’ RepresentativeRepresentative shall be taken jointly, not individually. Such agency may be changed by the holders action of the MegaSys Shareholders holding a majority in interest of the shares of Everest MegaSys as of immediately prior to the Selling Parties Effective Time from time to time upon not less than ten (10) 10 days’ prior written notice to all of the Selling Parties and to Parent and PurchaserIveda. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall receive no compensation for services. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the MegaSys Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencefaith. The Selling Parties MegaSys Shareholders shall severally (and not jointly)pro rata, according to each Selling Parties’ pro-rata interest in the shares of Everestaccordance with their Pro Rata Portion, indemnify the Shareholders’ Representative and hold it the Shareholders’ Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his its duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithAgreement.
(c) Notwithstanding The Shareholders’ Representative shall have reasonable access to information about MegaSys and Iveda and the foregoing provisions in reasonable assistance of MegaSys’ and Iveda’s officers and employees for purposes of performing its duties and exercising its rights under this ARTICLE VIIIArticle IX, or any provision to the contrary set forth in this Agreement or the Option Agreement, provided that the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group treat confidentially and not matters pertaining disclose any nonpublic information from or about MegaSys or Iveda to an individual Selling Party anyone (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of except on a covenant in this Agreementneed to know basis to individuals who agree to treat such information confidentially), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesCompany hereby designates Kaye, by adopting this Agreement ▇▇holer, Fierman, Hays & ▇andler, LLP (the "Shareholders' Representative"), as the representative of the shareholders of the Company. The Shareholders' Representative shall have, among others, the following powers and duties: (i) to take such actions and to incur such costs and expenses as the Shareholders' Representative in its sole discretion deems necessary or advisable to safeguard the interests of the shareholders in the [Escrow Accounts], including, but not limited to, contesting any claim for Losses and commencing or defending litigation and settling any such claim or litigation; (ii) to employ accountants, attorneys and such other agents as the Shareholders' Representative may deem advisable and to pay reasonable compensation for such services; (iii) to maintain a register of the shareholders; and (iv) to take all actions which the Shareholders' Representative deems necessary or advisable in order to carry out the foregoing and the consummation and completion of the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ ' Representative may resign at any time at its sole and absolute discretion. The shareholders may, at any time, by a majority vote (one vote for each Share held by a shareholder at the Effective Time and assuming all Options outstanding at the Effective Time shall have been exercised), remove, replace or appoint as necessary, the Shareholders' Representative.
(c) The Shareholders' Representative shall be compensated for its services on the basis of its customary fees and shall be reimbursed for out-of-pocket expenses from the Shareholders' Representative's Escrow Fund). The Shareholders' Representative shall direct the Paying Agent to pay expenses incurred by it in performing its duties under this Section 9.1 out of the Shareholders' Representative's Escrow Fund. Upon a determination by the Shareholders' Representative that it will not incur any additional expenses, the Shareholders' Representative shall direct the Paying Agent to pay any remaining balance of the Shareholders' Representative's Fund proportionally to the shareholders (other than to the holders of Dissenting Shares).
(d) The Shareholders' Representative shall not be liable to any shareholder or by reason of any error of judgment or for any act done or step taken or omitted hereunder as by the Shareholders’ ' Representative while acting or for any mistake of fact or law or anything which the Shareholders' Representative may do or refrain from doing in connection herewith, unless caused by or arising out of willful misconduct. The Shareholders' Representative shall have full and complete authorization and protection for any action taken or suffered by the Shareholders' Representative hereunder in good faith and without negligence and any act done or omitted pursuant to in accordance with the advice of counsel shall be conclusive evidence of such good faith and absence of negligenceattorneys, accountants, experts or other agents engaged by the Shareholders' Representative. The Selling Parties shall severally (shareholders agree to indemnify and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify hold the Shareholders’ ' Representative and hold it harmless against any lossand all liabilities, liability obligations, losses or expense incurred without gross negligence or bad faith on expenses arising from the part Shareholders' Representative's actions in its capacity as a representative of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Partiesshareholders. The Shareholders’ ' Representative may may, in its sole discretion, request instructions from the shareholders at any time the Shareholders' Representative determines such instructions are necessary or advisable prior to the execution of any act or decision and shall have full and complete protection for any action taken in good faith rely conclusively in reliance upon the information, reports, statements and opinions prepared or presented instructions received by counsel or other professionals retained by it, and any action taken a majority of shareholders responding to such request. It is a condition to the agreement by the Shareholders’ ' Representative based on to act in such reliance shall be deemed conclusively to have been taken capacity that a majority of the shareholders confirm, in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIIIletter of transmittal or other similar document, or any provision their agreement to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) provisions of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties9.1.
Appears in 1 contract
Sources: Merger Agreement (Glasstech Inc)
Shareholders’ Representative. By consenting to and approving this Agreement, and pursuant to the terms of the Transmittal Letters, the Company Shareholders have or will:
(a) The Selling Parties, by adopting this Agreement (i) irrevocably constitute and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser ▇▇▇▇ ▇. ▇▇▇▇▇ as the Shareholders’ Representative and true and lawful attorney in fact and agent; and (ii) authorize him to act for the Company Shareholders and in their name, place and ▇▇▇▇▇, in any and all capacities to do and perform every act and thing required or permitted to be done after the Effective Time in connection with this Agreement and the other Transaction Documents, as fully to all intents and purposes as the Company Shareholders might or could do in person, including taking any and all action on behalf of the Selling PartiesCompany Shareholders from time to time as contemplated hereunder. Any delivery by the Shareholders’ Representative of any waiver, with amendment, agreement, opinion, certificate or other document executed by the authority Shareholders’ Representative will bind the Company Shareholders by such documents or action as fully as if each of the Company Shareholders had executed and delivered such documents;
(ib) to perform agree that upon the death, disability or incapacity of the initial Stockholders’ Representative, that the Shareholders’ Representative’s executor, guardian or legal representative, as the case may be, shall appoint a replacement reasonably believed by such person as capable of carrying out the duties and performing the obligations of the Shareholders’ Representative set forth in this Agreement hereunder within thirty (30) days of such death, disability or incapacity;
(c) agree that Parent and Surviving Corporation shall be authorized to rely conclusively on the Option Agreement, (ii) written instructions and decisions of the Shareholders’ Representative as to give any actions required or permitted to be taken by the Company Shareholders or the Shareholders’ Representative under Section 1.5 and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect Article VIII of this Agreement and the Option Escrow Agreement, and none of such Company Shareholders shall have any cause of action against Parent for any action taken by Parent in reliance upon such written instructions or decisions of the Shareholders’ Representative;
(ivd) to retain legal counsel, accountants, consultants agree that all written decisions and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment instructions of the Shareholders’ Representative for in relation to this Agreement and the accomplishment of, any or other Transaction Documents shall be conclusive and binding on all of the foregoing. K Laser hereby accepts its appointment as Company Shareholders and no Company Shareholder shall have the right to object to, dissent from, protest or otherwise contest the same or any cause of action against the Shareholders’ Representative for any action taken, decision made or instruction given by the Shareholders’ Representative. Such agency ;
(e) agree that remedies available at law for any breach of the provisions of this Section 1.14 may be changed inadequate; therefore Parent may be entitled to temporary and permanent injunctive relief relating to any such breach without the necessity of proving damages if Parent brings an action to enforce the provisions of this Section 1.14;
(f) agree, acknowledge and confirm that the provisions of this Section 1.14 are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death or legal incapacity, granted by the holders of a majority in interest of the shares of Everest of the Selling Parties from time each Company Shareholder to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative and shall be binding upon the executors, heirs, personal representatives and successors of each Company Shareholder.
(g) agree that the Shareholders’ Representative will be entitled to Parent shall constitute notice to be compensated by the Company Shareholders from the Escrow Assets for any and all actions, liabilities, losses, damages, fines, penalties, fees, costs, expenses or from amounts paid in settlement (in each case, including reasonable attorneys’ fees and expenses), whether or not involving a third party, arising as a result of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from his serving as the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as those incurred by the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part Affiliates of the Shareholders’ Representative and arising out or any agents or representatives of the Shareholders’ Representative or such Affiliates in connection with the acceptance protection, defense, enforcement or administration other expense of his duties hereunder. No provision of any rights under this Agreement shall require or any other Transaction Document. Any and all payments made by or on behalf of any Company Shareholder under this provision will be made free and clear of any present or future taxes, deductions, charges or withholdings and all liabilities with respect thereto;
(h) agree that the Shareholders’ Representative will not be liable to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and Company Shareholders for any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party faith pursuant to this Agreement or any other Transaction Document, and shall only be liable to the Option AgreementCompany Shareholders for acts or omissions which constitute gross negligence or intentional misconduct of the Shareholders’ Representative. The Shareholders’ Representative is serving in that capacity solely for purposes of administrative convenience, and is not personally liable in such capacity for any of the obligations of Parent, Surviving Corporation, the Company or (iii) adds the Company Shareholders hereunder, and Parent, Surviving Corporation and the Company agree that they will not look to or results the Shareholders’ Representative, acting in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (includingsuch capacity, for the avoidance satisfaction of doubtany obligations to be performed by the Company Shareholders hereunder; and
(i) agree to hold the Shareholders’ Representative harmless and indemnify the Shareholders’ Representative, any change to severally (and not jointly) in accordance with the nature amount of the indemnity obligations)Merger Consideration received by such indemnifying Company Shareholders, in each case with respect to clauses any and all loss, damage or liability and expenses (i), (iiincluding reasonable legal fees) and (iii) which any Company Shareholders may sustain as a result of this Section 8.1(c), without first obtaining any action taken in good faith by the prior written approval of the Selling PartiesShareholders’ Representative.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ is hereby appointed as the Principal Shareholders’ and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative true and lawful representative, proxy, agent and attorney-in-fact (the “Shareholders’ Representative”) for a term that shall be continuing and indefinite and without a termination date except as otherwise provided herein, to act for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement Shareholders and the Option AgreementPrincipal Shareholders in connection with or relating to the Transaction Documents and the Contemplated Transactions, (ii) including, without limitation, to give and receive notices and communications, (iii) to receive and accept service of legal process in connection with any proceeding arising under the Transaction Documents or in connection with the Contemplated Transactions, to receive and deliver amounts comprising the Closing Purchase Consideration and the Post-Closing Purchase Consideration, to authorize delivery of cash from each of the Escrow Accounts in satisfaction of claims pursuant to ARTICLE VIII hereof, to object to or accept any claims against or on behalf of the Shareholders and Principal Shareholders pursuant to ARTICLE VIII, to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expenses, in connection withdemand arbitration and comply with orders of courts and awards of arbitrators with respect to such amounts or claims, and to take all actions necessary or appropriate in the judgment sole opinion of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties at any time and from time to time by the action of Shareholders holding more than fifty percent (50%) of the issued and outstanding Shares just prior to the Contemplated Transactions, and shall become effective upon not less than ten thirty (1030) days’ days prior written notice to all ICF. Except as provided in the foregoing sentence, in the event that for any reason the most recent Shareholders’ Representative shall no longer be serving in such capacity, including, without limitation, as a result of the Selling Parties and to Parent and Purchaser. No bond shall be required death, resignation, or incapacity of the Shareholders’ Representative, either (i) the outgoing Shareholders’ Representative shall appoint a successor Shareholders’ Representative or (ii) if the outgoing Shareholders’ Representative is unable, unwilling or otherwise fails to appoint a successor Shareholder Representative, then ▇▇▇▇▇▇▇▇ ▇. Notices ▇▇▇▇▇▇ shall serve as the successor Shareholders’ Representative, or (iii) in the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ is unable or unwilling to serve as successor Shareholders’ Representative, Shareholders holding more than fifty percent (50%) of the issued and outstanding Shares just prior to the Contemplated Transactions, shall designate another Person to act as Shareholders’ Representative, such that at all times there will be a Shareholders’ Representative with the authority provided hereunder. Any change in the Shareholders’ Representative pursuant to the foregoing sentence shall become effective upon delivery of written notice of such change to ICF. The Shareholders’ Representative shall not receive compensation for his or her services. Notices, deliveries or communications to or from the Shareholders’ Representative by or to Parent any of the parties to the Transaction Documents shall constitute notice notices, deliveries or communications to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder in his capacity as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencegross negligence or willful misconduct on his or her part. The Selling Parties Principal Shareholders shall jointly and severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it the Shareholders’ Representative harmless from and against any lossand all damages, liability actions, proceedings, demands, liabilities, losses, taxes, fines, penalties, costs, claims and expenses (including, without limitation, reasonable fees of counsel) of any kind or expense incurred without nature whatsoever (whether or not arising out of third-party claims and including all amounts paid in investigation, defense or settlement of the foregoing) that may be sustained or suffered by the Shareholders’ Representative in connection with the administration of its duties hereunder, except where such Losses arise from or are the result of the Shareholders’ Representative’s gross negligence or bad faith on willful misconduct.
(c) Any decision, act, consent or instruction taken or given by the part Shareholders’ Representative pursuant to this Agreement shall be and constitute a decision, act, consent or instruction of all Shareholders and shall be final, binding and conclusive upon each such Shareholder and the Escrow Agent, ICF, and ICF Holdings and, following the completion of the Closing, Synergy, ICF and ICF Holdings may rely upon any such decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of each and arising out every Shareholder and shall have no duty to inquire as to the acts and omissions of the Shareholders’ Representative. The Escrow Agent, Synergy, ICF and ICF Holdings are hereby relieved from any liability to any Person for any acts done by them in accordance with, or in connection otherwise with respect to any aspect of, such decision, act, consent or instruction of the acceptance or administration of his duties hereunder. No provision of this Agreement shall require Shareholders’ Representative.
(d) Notices given to the Shareholders’ Representative in accordance with Section 9.2 shall constitute notice to expend the Shareholders or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powersPrincipal Shareholders, rightsas applicable, duties or privileges for all purposes under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithAgreement.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. Each Principal Shareholder hereby irrevocably constitutes and appoints Er▇▇ ▇▇▇▇ (a) The Selling Partiesthe “Shareholders’ Representative”), by adopting as such Principal Shareholder’s agent and attorney-in-fact, with full power and authority to act, including full power of substitution, in his, her or its name and on his, her or its behalf with respect to all matters arising from or in any way relating to this Agreement and any other agreement entered into in connection with this Agreement (including the transactions contemplated herebyAncillary Agreements) or the Transaction, hereby irrevocably appoint including to do all things and constitute K Laser to perform all acts required or deemed advisable, in its sole discretion, in connection with the Transaction as fully as such Principal Shareholder could if then personally present and acting alone. Without limitation, (i) any communication or other delivery validly delivered to the Shareholders’ Representative shall be deemed to have been validly delivered to each Principal Shareholder, (ii) any consent given or waiver of any provision of this Agreement or any other agreement entered into in connection with this Agreement, by the Shareholders’ Representative shall be binding upon each and every Principal Shareholder, and (iii) except as otherwise provided in Section 11.1, the Shareholders’ Representative is hereby authorized to execute for and on behalf of the Selling Parties, each Principal Shareholder any amendment to this Agreement or any other agreement entered into in connection with the authority (i) to perform the obligations this Agreement. This appointment of agency and this power of attorney is coupled with an interest and shall be irrevocable and shall not be terminated by any Principal Shareholder or by operation of law. Neither the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and nor any agent employed by it shall incur any other reasonable expenses, in connection with, and Liability to take all actions necessary any Principal Shareholder by virtue of the failure or appropriate in the judgment refusal of the Shareholders’ Representative for any reason to consummate the accomplishment ofTransaction or relating to the performance of its other duties hereunder or any of its omissions or actions with respect thereto. The Principal Shareholders, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time jointly and severally, agree to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from indemnify the Shareholders’ Representative, including in electronic form.
his successors, assigns, agents, attorneys and affiliates (b) The the “Shareholders’ Representative shall not be liable for any act done or omitted hereunder as Parties”) and to hold the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any lossand all losses, liability Liabilities or expense expenses incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the as Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in Representative, including the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements reasonable costs and opinions prepared or presented by counsel or other professionals retained by it, and any action taken expenses incurred by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithdefending against any claim or Liability in connection herewith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Merger Agreement (Mimvi, Inc.)
Shareholders’ Representative. (a) The Selling PartiesShareholders hereby appoint ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as their Shareholders’ Representative and to act as their agent and attorney-in-fact for purposes of Article 1, Article 5, Article 8, Article 9 and Section 10.4 of this Agreement, and consent to the taking by adopting this Agreement the Shareholders’ Representative of any and all actions and the transactions contemplated herebymaking of any decisions required or permitted to be taken by him pursuant to such provisions of this Agreement. The Shareholders’ Representative hereby agrees to negotiate, enter into settlements and compromises of claims, including third-party claims, to comply with orders of courts and awards of arbitrators with respect to such claims, resolve any claim made pursuant to Article 9 of this Agreement, take all actions necessary in his judgment for the accomplishment of the foregoing and hereby irrevocably appoint and constitute K Laser accepts his appointment as the Shareholders’ Representative for purposes of Article 1, Article 5, Article 8, Article 9 and on behalf Section 10.4 of this Agreement and for purposes of any claims under the Selling Parties, Remaining Shareholder Promissory Note and the Contingent Consideration Note. Parent and Purchaser shall be entitled to deal exclusively with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in on all matters relating to Article 1, Article 5, Article 8, Article 9 and Section 10.4 of this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required entitled to rely conclusively (without further evidence of the Shareholders’ Representative. Notices any kind whatsoever) on any document executed or communications purported to or from the Shareholders’ Representative to Parent shall constitute notice to or from each be executed on behalf of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from Seller by the Shareholders’ Representative, including in electronic formand on any other action taken or purported to be taken on behalf of any Seller by the Shareholders’ Representative, as fully binding upon such Seller.
(b) If the Shareholders’ Representative shall die, become disabled or otherwise be unable or declare himself unwilling to fulfill his responsibilities as agent of the Sellers, then the Selling Shareholders who held a majority of the Shares prior to the Closing collectively shall, within ten days after such time, appoint a successor representative reasonably satisfactory to Purchaser. The Shareholders’ Representative may be removed at any time, with or without cause, by the Selling Shareholders who held a majority of the Shares prior to the Closing; provided, that within ten days after such time, such Selling Shareholders shall appoint a successor representative reasonably satisfactory to Purchaser. Any such successor shall become the “Shareholders’ Representative” for purposes of Article 1, Article 5, Article 8, Article 9 and Section 10.4 of this Agreement and this Section 10.1.
(c) A Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to in the advice exercise of counsel shall be conclusive evidence of such good faith and absence of negligencereasonable judgment. The Selling Parties Shareholders shall severally (and not jointly), according to proportionate between themselves indemnify each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it each Shareholders’ Representative harmless against any loss, liability liability, cost or expense incurred without gross negligence or negligence, bad faith or willful misconduct on the part of the such Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his such Shareholders’ Representative’s duties hereunder. No provision pursuant to the terms of this Agreement Agreement, including the reasonable fees and expenses of any legal counsel retained by such Shareholders’ Representative.
(d) The Shareholders’ Representative shall require be entitled to rely upon any order, judgment, certificate, demand, notice, instrument or other writing delivered to him hereunder without being required to investigate the validity, accuracy or content thereof nor shall the Shareholders’ Representative to expend be responsible for the validity or risk its own funds or otherwise incur any financial liability in the exercise or performance sufficiency of any of its powers, rights, duties or privileges this Agreement. In all questions arising under this Agreement on behalf of any Selling Parties. The Agreement, the Shareholders’ Representative may rely on the advice of counsel, and for anything done, omitted or suffered in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreementadvice, the Shareholders’ Representative shall only have the power or authority not be liable to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesanyone.
Appears in 1 contract
Sources: Share Purchase Agreement (Multi Fineline Electronix Inc)
Shareholders’ Representative. (a) The Selling PartiesUpon the approval of the Shareholders of this Agreement, by adopting for all purposes under this Agreement and the transactions contemplated herebyEscrow Agreement, the Shareholders hereby irrevocably appoint and constitute K Laser designate A. ▇▇▇▇ ▇▇▇▇▇▇ to serve as the Shareholders’ sole and exclusive representative of the Shareholders (the “Shareholders Representative”) with respect to the matters set forth in this Agreement, and agree that Buyer and Escrow Agent shall be entitled to rely upon any actions taken by the Shareholders Representative for and as the duly authorized action of the Shareholders Representative on behalf of the Selling Parties, each Shareholder (other than any Dissenting Shareholder) with the authority (i) respect to perform the obligations of the Shareholders’ Representative any matters set forth in this Agreement and the Option Escrow Agreement. If A. ▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, (ii) due to give incapacity or otherwise, to serve as Shareholders Representative, then ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall serve as successor Shareholders Representative. Each successor Shareholders Representative, if required to serve, shall sign an acknowledgement in writing agreeing to perform and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect be bound by all of the provisions of this Agreement and applicable to the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Shareholders Representative. Each successor Shareholders Representative for the accomplishment of, any or shall have all of the foregoing. K Laser hereby accepts its appointment power, authority, rights and privileges conferred by this Agreement upon the original Shareholders Representative, and the term “Shareholders Representative” as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond used herein shall be required of the Shareholders’ deemed to include any successor Shareholders Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Service by the Shareholders Representative shall not be liable without compensation except for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken reimbursement by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithShareholders of out-of-pocket expenses specifically provided herein.
(c) Notwithstanding Each Shareholder hereby appoints and constitutes the foregoing provisions Shareholders Representative as his or its true and lawful attorney-in-fact, with full power in his name and to act on his or its behalf according to the terms of this ARTICLE VIIIAgreement. 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 Shareholder, by operation of Legal Requirement, whether by such Shareholder’s death, disability, protective supervision or any provision other event. The Shareholders Representative shall promptly deliver to each Shareholder any notice received by the Shareholders Representative concerning this Agreement.
(d) Neither the Shareholders Representative nor any agent employed by the Shareholders Representative shall be liable to any Shareholder relating to the contrary set forth in performance of such Shareholders Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the Option Agreement, extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the Shareholders’ actions taken or not taken by the Shareholders Representative constituted fraud or were taken or not taken in bad faith. The Shareholders Representative shall only be protected in acting upon any notice, statement or certificate believed by the Shareholders Representative to be genuine and to have been furnished by the power appropriate Person and in acting or authority refusing to act with respect to matters pertaining in good faith on any matter. Neither the Shareholders Representative nor any agent employed by the Shareholders Representative shall be liable to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not Buyer or any Affiliate of the Buyer by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision reason of this Agreement or the Option Agreement) that (i) results in the amounts payable performance of Shareholders Representative’s duties hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesotherwise.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesFulcrum, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative Representative, shall be constituted and appointed as agent for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) each Shareholder to give and receive notices and communications, (iii) to agree to, negotiatenegotiate and enter into, enter into and provide amendments and supplements to on behalf of the Shareholders, amendments, consents and waivers in respect of under this Agreement pursuant to the terms set forth herein, to make and receive payments on behalf of the Option Shareholders pursuant to the terms set forth herein, to take such other actions as authorized by this Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment If at any time the Shareholders’ Representative resigns, dies or becomes incapable of acting, the Shareholders shall choose another Person to act as the Shareholders’ Representative under this Agreement. The Shareholder Indemnitees may not make a claim for indemnity against Buyer pursuant to this Agreement except through the Shareholders’ Representative. Such agency Once the Shareholders’ Representative has initiated such a claim for indemnity, the Shareholders’ Representative may be changed by enforce, prosecute and settle such claim without further directions from the holders of a majority in interest Shareholder Indemnitees, and all acts and decisions of the shares of Everest of Shareholders’ Representative in connection with such matter shall be binding on all the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and PurchaserShareholder Indemnitees. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall receive no compensation for services provided hereunder. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling PartiesShareholders.
(a) The Shareholders’ Representative will be entitled to engage such counsel, except for notices related to any action for which experts and other agents as the Selling PartiesShareholders’ consent is required under the terms of this Agreement Representative deems necessary or applicable law. Each Selling Party agrees to receive correspondence from proper in connection with performing the Shareholders’ Representative’s obligations hereunder, including and will be promptly reimbursed by the Shareholders for all reasonable expenses, disbursements and advances incurred by the Shareholders’ Representative in electronic form.
(b) such capacity upon demand. Each Shareholder shall indemnify and hold harmless the Shareholders’ Representative pro rata based upon such Shareholder’s pro rata share of the equity interests in the Company as of the Closing Date, from any and all Losses that are incurred by the Shareholders’ Representative as a result of actions taken, or actions not taken, by the Shareholders’ Representative herein, except to the extent that such Losses arise from the gross negligence or willful misconduct of the Shareholders’ Representative. The Shareholders’ Representative shall not be liable to the Shareholders for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly)Representative, according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without excluding acts which constitute gross negligence or bad faith on the part willful misconduct.
(b) A decision, act, consent or instruction of the Shareholders’ Representative and arising out in respect of or in connection with the acceptance or administration of his duties hereunder. No provision of any action under this Agreement shall require constitute a decision of all of the Shareholders and shall be final, binding and conclusive upon each such Shareholders and Buyer may rely upon any decision, act, consent or instruction of the Shareholders’ Representative hereunder as being the decision, act, consent or instruction of each and every such Shareholder. Buyer is hereby relieved from any Liability to expend any Person (including any Shareholder) for any acts done by Buyer in accordance with such decision, act, consent or risk its own funds or otherwise incur any financial liability in the exercise or performance instruction of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithRepresentative.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesBy the execution and delivery of this Agreement, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ to act as such Shareholder's agent, representative, proxy and attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by adopting this Agreement and the transactions contemplated herebyTransaction Documents, hereby irrevocably appoint and constitute K Laser as exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders’ ' Representative shall have full power and authority, for and on behalf of the Selling PartiesShareholders, to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority (i) as are incidental thereto, to perform represent any Shareholder from and after the obligations Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders’ ' Representative set forth in is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Option AgreementTransaction Documents after the Closing Date, (ii) to give the Shareholders' Representative shall act for and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect on behalf of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertsShareholders, and incur any to the extent Shareholders are asked to execute documents and to take other reasonable expensesactions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in connection with, fact to execute all such documents and to take all such actions deemed necessary or appropriate in by the judgment Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders’ ' Representative for shall be conclusive and binding upon the accomplishment ofShareholders. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, any or including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the foregoingShareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. K Laser hereby accepts its appointment as Under this Section 10.15(a), however, the Shareholders’ Representative' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).
(b) Subject to the provisions of this Section 10.15(b), the Shareholders' Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. Such agency The Shareholders' Representative may be changed replaced or terminated at any time by the holders of those Shareholders holding a majority in interest of the Company's shares of Everest immediately prior to the Closing. If the Person who is acting as the Shareholders' Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders' Representative, or otherwise ceases to be the Shareholders' Representative, his successor shall promptly be appointed by the Shareholders holding a majority in interest of the Selling Parties Company's shares immediately prior to the Closing; provided, however, that the Shareholders' Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders' Representative (reasonably satisfactory to Parent). Any successor to a Shareholders' Representative shall for purposes of this Agreement be the Shareholders' Representative and from time and after such time, the term "Shareholders' Representative" as used herein shall refer to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaserany successor. No bond appointment of a successor shall be required of the Shareholders’ Representative. Notices or communications effective unless such successor agrees in writing to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under be bound by the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithAgreement.
(c) Notwithstanding The Shareholders' Representative shall be allowed further access to and permitted to review the foregoing provisions in this ARTICLE VIII, Surviving Entity's books and records during normal business hours and make copies reasonably required of (i) the working papers of Parent and the Surviving Entity relating to the Earn Out or any provision Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the contrary Earn Out or any Claims.
(d) The provisions set forth in this Agreement Section 10.15 shall not impose any liability or obligation on Parent or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant Surviving Entity other than those explicitly set forth in this Agreement). In particular, notwithstanding in any case any notice received by Parent or the Surviving Entity to the contrary, Parent and the powers conferred on the Shareholders’ Representative herein Surviving Entity shall be fully protected in relying upon and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that entitled (i) results in to rely upon actions, decisions and determinations of the amounts payable hereunder Shareholders' Representative and (ii) to any Selling Party being distributed in any manner other than as permitted pursuant to assume that all actions, decisions and determinations of the Shareholders' Representative are fully authorized and binding upon the Shareholders' Representative and the Shareholders. The Parties hereto have caused this Agreement and the Option Agreement, (ii) alters the consideration payable Plan of Merger to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature be executed as of the indemnity obligations)date first written above. NATIONAL TECHNICAL SYSTEMS, in each case with respect to clauses (i)INC. By: _________________________________ Name: Title: NTS ACQUISITION CORP. By: _________________________________ Name: Title: ELLIOT LABORATORIES, (ii) INC. By: _________________________________ Name: Title: ELA, LLC By: _________________________________ Name: Title: SOLELY FOR SECTION 3, ARTICLE IX AND SECTION 10.15 AS SHAREHOLDERS' REPRESENTATIVE ____________________________________ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ SHAREHOLDERS ____________________________________ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ____________________________________ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ____________________________________ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ____________________________________ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III The ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Revocable Trust U/A/D July 24, 1986, as amended ____________________________________ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Settlor and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.Trustee ____________________________________ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ____________________________________ ▇▇▇▇▇ ▇. ▇▇▇▇
Appears in 1 contract
Sources: Merger Agreement (National Technical Systems Inc /Ca/)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement Mr. H▇▇ ▇▇▇▇ T▇▇▇ shall be constituted and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser appointed as the Shareholders’ Representative agent for and on behalf of the Selling Partiesall Shareholders as their attorney-in-fact and representative, with the authority (i) to perform do any and all things and to execute any and all documents or other papers, in each such Shareholder’s name, place and stead, in any way in which each such Shareholder could do if personally present, in connection with this Agreement and the obligations applicable Transaction Documents and the transactions contemplated hereby and thereby, and (ii) to amend, cancel or extend, or waive the terms of, this Agreement and any of the Transaction Documents in a manner that would not disproportionately affect such Shareholder as compared to the other Shareholders, The power of attorney granted hereby is coupled with an interest. The Shareholders shall be bound by all actions taken and documents executed by the Shareholders’ Representative set forth in this Agreement pursuant hereto, and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond Investor shall be required entitled to rely on any action or decision of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall may, by giving not be liable for any act done or omitted hereunder less than thirty (30) days written notice to the other Parties, resign as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to under this Agreement. In the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify event that the Shareholders’ Representative becomes unable or unwilling to continue in his capacity as the Shareholders’ Representative under this Agreement, the Shareholders shall (by majority-in-interest) promptly appoint a successor Shareholders’ Representative by written notice to the Investor, and the appointment of such successor Shareholders’ Representative shall become effective only upon the Investor’s receipt of such written notice. Each Shareholder hereby agrees that any successor Shareholders’ Representative so selected by such Shareholder shall be entitled to act as such under this Agreement on behalf of such Shareholder. All references herein to the Shareholders’ Representative shall include any such successor Shareholders’ Representative. Except as otherwise expressly set forth herein, each Shareholder hereby consents to the taking by the Shareholders’ Representative of any and all actions and the making of any decisions required or permitted to be taken by such Shareholders under this Agreement. The Shareholders shall be bound by all actions taken by the Shareholders’ Representative in his capacity as the Shareholders’ Representative.
(c) In performing the functions specified in this Agreement, the Shareholders’ Representative shall not be liable to any Shareholder in the absence of gross negligence or willful misconduct on the part of the Shareholders’ Representative. Each Shareholder shall severally and not jointly, indemnify and hold it harmless the Shareholders’ Representative from and against any loss, liability or expense incurred without gross negligence or bad faith willful misconduct on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur , including any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements out-of-pocket costs and opinions prepared or presented by counsel or expenses and legal fees and other professionals retained by it, and any action taken legal costs reasonably incurred by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithRepresentative.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Series a Convertible Preferred Shares Purchase Agreement (China BCT Pharmacy Group, Inc.)
Shareholders’ Representative. (a) The Selling Parties, by adopting Through signature on this Agreement and/or approval of this Agreement, each of the Shareholders hereby appoints ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. as such Shareholder’s exclusive agent and attorney-in-fact (the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the “Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (iiRepresentative”) to give and receive notices and communicationscommunications with respect to the provisions of this Agreement, (iii) and to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect settlements or compromises of matters arising under this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take any and all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all to be taken on behalf of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ RepresentativeShareholders under this Agreement. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties is irrevocable and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representativecoupled with an interest. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each the Shareholders in respect of the Selling Partiesmatters under this Agreement. The Shareholders agree that a decision, except for notices related to any action for which the Selling Parties’ act, consent is required under the terms or instruction of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ RepresentativeRepresentative shall constitute a decision of all Shareholders, including and shall be final, binding and conclusive upon each Shareholder, and Parent may rely upon any decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of all Shareholders. Parent and its Affiliates shall not be liable in electronic formany way to the Shareholders based on any act or omission of the Shareholders’ Representative relating to this Agreement.
(b) The Shareholders’ Representative shall not be liable to the Shareholders only for his proven bad faith, willful misconduct, or gross negligence, as determined in light of all the circumstances, including the time and facilities available to him in the ordinary conduct of business. In determining the occurrence of any act done event or omitted hereunder contingency, the Shareholders’ Representative may request from any of the Shareholders or any other Person such reasonable additional evidence as the Shareholders’ Representative while acting in good faith and without negligence and his sole discretion may deem necessary to determine any act done or omitted pursuant fact relating to the advice of counsel shall be conclusive evidence occurrence of such good faith event or contingency, and absence may at any time inquire of negligenceand consult with others, including any of the Shareholders, and may obtain legal advice, and the Shareholders’ Representative shall not be liable to any Shareholder for any damages resulting from his delay in acting hereunder pending his receipt and examination of additional evidence, counsel or advice requested by him.
(c) The Shareholders’ Representative is authorized, in his sole discretion, to comply with final, nonappealable orders issued or process entered by any court of competent jurisdiction with respect to the Holdback Merger Consideration. The Selling Parties shall severally (and not jointly), according If any portion of the Holdback Merger Consideration is disbursed to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against is at any losstime attached, liability garnished or expense incurred without gross negligence levied upon under any court order, or bad faith on in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, writ, judgment or decree shall be made or entered by any court affecting such property or any part of thereof, then and in any such event, the Shareholders’ Representative is authorized, in his sole discretion, but in good faith, to rely upon and arising out of comply with any such order, writ, judgment or in connection with decree which he is advised by legal counsel selected by him is binding upon it without the acceptance need for appeal or administration of his duties hereunder. No provision of this Agreement shall require other action; and if the Shareholders’ Representative complies with any such order, writ, judgment or decree, he shall not be liable to expend any Shareholder or risk its own funds to any other Person by reason of such compliance even though such order, writ, judgment or otherwise incur any financial liability in the exercise decree may be subsequently reversed, modified, annulled, set aside or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Partiesvacated. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by itshall have responsibility for withholding Taxes, and with respect to any action taken certifications and governmental reporting that may be required under any laws or regulations that may be applicable to the distribution of payments to the Shareholders by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithunder this Agreement.
(cd) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, In no event shall the Shareholders’ Representative be liable to any Shareholder for incidental, indirect, special, consequential or punitive damages.
(e) The Shareholders’ Representative shall only be entitled to reimbursement for expenses (including attorneys’ fees) that are incurred by Shareholders’ Representative in connection with his performance hereunder. Such expenses shall be deducted from any Holdback Merger Consideration that is distributed to the Shareholders’ Representative for further distribution to the Shareholders prior to Shareholders’ Representative’s distribution of such Holdback Merger Consideration to the Shareholders. If the aggregate amount of such expenses exceeds the Holdback Merger Consideration distributed to the Shareholders’ Representative for the benefit of the Shareholders, each Shareholder shall be liable for its pro rata share (based on their respective portions of Company Shares Outstanding immediately prior to the Closing Date) of such excess expenses (including attorneys’ fees).
(f) In the event that the Shareholders pay Parent and/or Shareholders’ Representative any amounts pursuant to this Agreement, such Shareholders shall be entitled to reimbursement for the amount of any such payments out of (and any such amounts shall be deducted by the Shareholders’ Representative from) any future Holdback Merger Consideration that is distributed to the Shareholders’ Representative for future distribution to the Shareholders prior to Shareholders’ Representative’s distribution of such Holdback Merger Consideration to the Shareholders.
(g) If the Shareholders’ Representative resigns (by giving at least sixty (60) days’ written notice of such resignation to Parent) or dies or becomes incapable of continuing to act as the Shareholders’ Representative for any reason, a successor Shareholders’ Representative (who shall either be a Shareholder or another Person reasonably acceptable to Parent) shall be appointed in writing by a majority in interest of the Shareholders (which for purposes of this Agreement shall be based on their respective portions of the Company Shares Outstanding immediately prior to the Closing Date), such appointment to become effective upon the delivery of executed counterparts of such writing to Parent, together with an acknowledgement signed by the successor Shareholders’ Representative named in such writing that he, she or it accepts the responsibility of successor Shareholders’ Representative and agrees to perform and be bound by all provisions of this Agreement applicable to the Shareholders’ Representative. Pending the election of a successor Shareholders’ Representative, the Shareholder that has the largest aggregate stake in the Total Merger Consideration immediately following the Effective Time (excluding any former Shareholders’ Representative) shall act as the interim Shareholders’ Representative. Failing such appointment, Parent or any Shareholder may apply to a court of competent jurisdiction for the appointment of a successor Shareholders’ Representative.
(h) A majority in interest of the Shareholders (based on their respective portions of Company Shares Outstanding immediately prior to the Closing Date) shall have the power right at any time during the term of this Agreement to remove the then-acting Shareholders’ Representative and to appoint a successor Shareholders’ Representative (who shall either be a Shareholder or authority another Person reasonably acceptable to act Parent); provided, however, that such removal of the then-acting Shareholders’ Representative shall not be effective until the delivery to Parent of executed counterparts of a writing signed by a majority in interest of the Shareholders with respect to matters pertaining such removal and appointment, together with an acknowledgement signed by a successor Shareholders’ Representative appointed in such writing that he, she or it accepts the responsibility of successor Shareholders’ Representative and agrees to perform and be bound by all of the provisions of this Agreement applicable to the Selling Parties Shareholders’ Representative.
(i) Each interim and successor Shareholders’ Representative shall have all the power, authority, rights and privileges conferred by this Agreement upon the original Shareholders’ Representative, and the term Shareholders’ Representative as a group and not matters pertaining used herein shall be deemed to an individual Selling Party include any interim or successor Shareholders’ Representative.
(for example but not j) Any notices given by way Parent while there is no Shareholders’ Representative shall be sufficiently given if given to the Shareholder with the largest stake in the Holdback Merger Consideration immediately following the Effective Time (excluding the former Shareholders’ Representative). A copy of limitation, an action against an individual Selling Party for all such notices shall be delivered to the successor Shareholders’ Representative upon his, her or its individual breach of a covenant in this Agreement)appointment and he, and she or it shall have five (5) days thereafter to take such actions as may be required under the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision terms of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to connection with any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiessuch notice.
Appears in 1 contract
Shareholders’ Representative. (a) MJN shall act as the representative of holders of Company Capital Stock (referred to in his capacity as such representative as the “Shareholders’ Representative”) and shall be authorized to take any action and to make and deliver any certificate, notice, consent or instrument required or permitted to be made or delivered under this Agreement or under the documents referred to in this Agreement, to waive any requirements of this Agreement or to enter into one or more amendments or supplements to this Agreement that Shareholders’ Representative determines in Shareholders’ Representative’s sole and absolute discretion to be necessary, appropriate or advisable, which authority includes the execution and delivery of the Escrow Agreement and any amendments or supplements thereto and the performance of all obligations thereunder, including authority to collect and pay funds and dispute, settle, compromise and make all claims. The Selling Partiesauthority of Shareholders’ Representative includes the right to hire or retain, by adopting at the sole expense of the holders of Company Capital Stock, such counsel, investment bankers, accountants, representatives and other professional advisors as Shareholders’ Representative determines in Shareholders’ Representative sole and absolute discretion to be necessary, appropriate or advisable in order to perform this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as Escrow Agreement. Any party will have the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) right to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time rely upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the taken by Shareholders’ Representative, including and to act in electronic formaccordance with such action without independent investigation.
(b) The Parent will have no liability to any holder of Company Capital Stock or otherwise arising out of the acts or omissions of Shareholders’ Representative shall not be liable for or any act done disputes among holders of Company Capital Stock or omitted hereunder as the with Shareholders’ Representative while acting in good faith Representative. Parent may rely entirely on its dealings with, and without negligence notices to and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly)from, according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur satisfy any financial liability in the exercise or performance of any of its powers, rights, duties or privileges obligations it might have under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power Escrow Agreement or authority any other agreement referred to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser parties agree that ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall act as the representative of the Shareholders (the "Shareholders’ Representative ' Representative") for and the purpose of settling on behalf of the Selling PartiesShareholders claims made by the Shareholders under Sections 9.4(e)(i) or 11.2 hereof, with and representing the authority (iShareholders in any indemnification proceedings by Newco, Alleghany or Transferee under Sections 9.4(e)(ii) and 11.1 hereof, in each case pursuant to perform the obligations of the Shareholders’ Representative procedures set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formSection 11.3 hereof.
(b) The Shareholders shall be bound by any and all actions taken by the Shareholders’ ' Representative on their behalf.
(c) Newco, Alleghany and Transferee shall be entitled to rely upon any communication or writings given or executed by the Shareholders' Representative. All notices to be sent to the Shareholders pursuant to the indemnification provisions hereof may be addressed to the Shareholders' Representative and any notice so sent shall be deemed notice to all of the Shareholders hereunder. The Shareholders hereby consent and agree that the Shareholders' Representative is authorized to accept notice on behalf of the Shareholders pursuant hereto. (d) If for any reason ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall cease to act as the Shareholders' Representative hereunder, the Shareholders shall promptly appoint a new representative. Such appointment shall be deemed to have been made when set forth in a written communication to Alleghany, signed by -57-
(e) The Shareholders' Representative is hereby appointed and constituted the true and lawful attorney-in- fact of each Shareholder, with full power in his or her name and on his or her behalf:
(i) To act on such Shareholder's behalf according to the terms of this Agreement, including, without limitation, the power to act on their behalf in connection with any matter as to which the Shareholders are an "Indemnitor" or "Indemnitee" under this Article XI or under Section 9.4 hereof, all in the absolute discretion of the Shareholders' Representative; and (ii) In general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with this Agreement. This power of attorney and all authority hereby conferred is granted subject to the interest of the other Shareholders hereunder and in consideration of the mutual covenants and agreements made herein, and shall be irrevocable and shall not be terminated by any act of any Shareholder, by operation of law, whether by the death or incapacity of any Shareholder, or by the occurrence of any other event. Each Shareholder shall jointly and severally hold the Shareholders' Representative free and harmless from any and all loss, damage or liability which he may sustain as a result of any action taken in good faith hereunder.
(f) The Shareholders' Representative shall not be liable to the Shareholders for any act done action taken or omitted hereunder as to be taken by him except in the case of willful misconduct. Each Shareholder agrees to pay his or her pro rata portion (based upon his or her proportionate share of the Alleghany Shares acquired or to be acquired pursuant to this Agreement) of all costs and expenses reasonably incurred by the Shareholders’ ' Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties as Shareholders' Representative, including but not limited to reasonable legal fees and other costs and expenses of defending or preparing to defend against any claim or liability hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.-58-
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesAt the Closing, by adopting this Agreement ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇ shall be constituted and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser appointed as the Shareholders’ Representative Representative. For purposes of this Agreement, the term “Shareholders’ Representative” shall mean the agent for and on behalf of the Selling Parties, with the authority Shareholders and Advisor to: (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communicationscommunications to or from Buyer (on behalf of itself of any other Indemnified Person) relating to this Agreement, the Escrow Agreement, the Stock Purchase or any other transactions contemplated hereby or thereby (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by such Shareholders or the Advisor individually); (ii) authorize deliveries to Buyer of cash from the Escrow Fund in satisfaction of claims for indemnification pursuant to Section 9.2 asserted by the Indemnified Party; (iii) object to such claims pursuant to Section 9.5(d); (iv) consent or agree to, negotiate, enter into settlements and provide amendments compromises of, and supplements comply with orders of courts with respect to, such claims; (v) consent or agree to and waivers in respect of any amendment to this Agreement and the Option Agreement, (ivvi) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. K Laser hereby accepts its appointment The Person serving as the Shareholders’ Representative. Such agency Representative may be changed replaced from time to time by the holders of a majority in interest of the shares of Everest of cash then on deposit in the Selling Parties from time to time Escrow Fund upon not less than ten (10) days’ prior written notice to all of the Selling Parties Escrow Agent and to Parent and PurchaserBuyer. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from , and the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except receive no compensation for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formhis services.
(b) The Shareholders’ Representative shall not be liable to any Shareholder or the Advisor for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence (and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith faith) and absence of negligencewithout gross negligence or willful misconduct. The Selling Parties Shareholders shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it him harmless from and against any loss, liability or expense incurred without gross negligence negligence, willful misconduct or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Shareholders’ Representative. No provision of this Agreement shall require If not paid directly to the Shareholders’ Representative to expend by the Shareholders, such losses, liabilities or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative expenses may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken be recovered by the Shareholders’ Representative based on from cash, shares or other property in the Escrow Fund otherwise distributable to the Shareholders and the Advisor (and not distributed or distributable to an Indemnified Person or subject to a pending indemnification claim of an Indemnified Person) following the 18 month anniversary of the Closing Date pursuant to the terms hereof and of the Escrow Agreement, at the time of distribution, and such reliance shall recovery will be deemed conclusively made from the Shareholders and the Advisor according to have been taken in good faiththeir respective pro rata shares of the Escrow Fund.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIIIAny notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or any provision to the contrary set forth in this Agreement or the Option Agreementinstruction of, the Shareholders’ Representative shall only have that is within the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way scope of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in Representative’s authority under Section 11.2(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement Shareholders and the Option AgreementAdvisor and shall be final, (ii) alters binding and conclusive upon each such Shareholder and the consideration payable Advisor. The Escrow Agent and each Indemnified Party shall be entitled to rely upon any Selling Party pursuant such notice, communication, decision, action, failure to this Agreement act within a designated period of time, agreement, consent, settlement, resolution or the Option Agreementinstruction as being a notice or communication to or by, or (iii) adds a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (includinginstruction of, for each and every such Shareholder and the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesAdvisor.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesEffective immediately prior to the Effective Time, and without any further action by adopting this Agreement and the transactions contemplated herebyCompany or any of the Company Shareholders, the Company hereby irrevocably appoint and constitute K Laser appoints ▇▇▇▇ ▇. ▇▇▇▇▇, as the Shareholders’ Representative (the “Shareholders’ Representative”) for each of the Company Shareholders, as each of such shareholder’s agent, to act in each of such shareholder’s name, place and stead, as such shareholder’s attorney-in-fact, to execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other documents and agreements contemplated by this Agreement with respect to such shareholders (including any amendments or waivers of this Agreement and such other documents and agreements), to make all elections or decisions contemplated by this Agreement and any other agreements contemplated by this Agreement including, the initiation or defense of claims for indemnification or other litigation or proceedings, to give and receive on behalf of such shareholders any and all notices from or to any such shareholder or shareholders hereunder and to engage such third parties (including the execution of agreements on behalf of such shareholders in connection therewith) as the Shareholders’ Representative determines to be appropriate and in the best interests of such shareholders, and does hereby give and grant unto the Shareholders’ Representative the power and authority to do and perform each such act and thing whatsoever, that such Company Shareholders may or are required to do pursuant to this Agreement and all other documents and agreements executed and delivered by such shareholders in connection with this Agreement, and to amend, modify or supplement any of the foregoing in each such shareholders’ name, place and stead, as if such shareholder had personally done such act, and ▇▇▇▇ ▇. ▇▇▇▇▇, as Shareholders’ Representative, hereby accepts such appointment. Any proceeds received by the Shareholders’ Representative on behalf of the Selling Parties, with Company Shareholders from Parent the authority (i) Surviving Entity or the Post-Closing Escrow Account on behalf of the Company Shareholders shall be turned over to perform the obligations of such shareholders as promptly as practicable by the Shareholders’ Representative set forth Representative, in this Agreement accordance with the terms and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect provisions of this Agreement and the Option Post-Closing Escrow Agreement. The death, (iv) to retain legal counselincapacity, accountantsdissolution, consultants liquidation, insolvency or bankruptcy of any Company Shareholder shall not terminate such appointment or the authority and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices The power-of-attorney granted in this Section 10.1 is coupled with an interest and is irrevocable. Parent and the Surviving Entity may conclusively rely upon, without independent verification or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Partiesinvestigation, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken all decisions made by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature behalf of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesCompany Shareholders.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably Shareholders appoint and constitute K Laser ▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇ (or any person appointed as the a successor Shareholders’ Representative for pursuant to Section 2.10(b)) as their representative and on behalf agent under this Agreement.
(b) Shareholders who, immediately prior to the Closing, are entitled to receive 50% or more of the Selling PartiesMerger Consideration, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreementmay, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all Shareholders’ Representative and Buyer, remove Shareholders’ Representative or appoint a new Shareholders’ Representative upon the death, incapacity, resignation or removal of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices If, after the death, incapacity, resignation or communications removal of Shareholders’ Representative, a successor Shareholders’ Representative has not been appointed by Shareholders within fifteen (15) business days after a request by Buyer, Buyer will have the right to or from the appoint a Shareholders’ Representative to Parent shall constitute fill any vacancy so created by written notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according appointment to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding Shareholders authorize Shareholders’ Representative to take any action and to make and deliver any certificate, notice, consent or instrument required or permitted to be made or delivered under this Agreement or under the foregoing provisions documents referred to in this ARTICLE VIIIAgreement, to waive any requirements of this Agreement or to enter into one or more amendments or supplements to this Agreement that Shareholders’ Representative determines in Shareholders’ Representative’s sole and absolute discretion to be necessary, appropriate or advisable. The authority of Shareholders’ Representative includes the right to hire or retain, at the sole expense of Shareholders, such counsel, investment bankers, accountants, representatives and other professional advisors as Shareholders’ Representative determines in Shareholders’ Representative sole and absolute discretion to be necessary, appropriate or advisable in order to perform this Agreement. Any party will have the right to rely upon any action taken by Shareholders’ Representative, and to act in accordance with such action without independent investigation.
(d) Buyer will have no liability to any Shareholder or otherwise arising out of the acts or omissions of Shareholders’ Representative or any provision disputes among Shareholders or with Shareholders’ Representative. Buyer may rely entirely on its dealings with, and notices to the contrary set forth and from, Shareholders’ Representative to satisfy any obligations it might have under this Agreement or any other agreement referred to in this Agreement or the Option Agreement, the otherwise to Shareholders.
(e) Shareholders’ Representative shall only have accepts the power or authority appointment made by this Section 2.10 and agrees to act with respect to matters pertaining to abide by the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) provisions of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties2.10.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Patina Oil & Gas Corp)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Each Shareholder hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority appoints Vital ▇▇▇▇▇▇ (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the “Shareholders’ Representative. Such agency may be changed by ”) as the holders agent, mandatory and attorney-in-fact of a majority in interest of the shares of Everest of the Selling Parties from time such Shareholder to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to take any action for which the Selling Parties’ consent is required or permitted to be taken by such Shareholder under the terms of this Agreement, including, without limiting the generality of the foregoing, the right to waive, modify or amend any of the terms of this Agreement in any respect, whether or applicable lawnot material, and to settle indemnification claims or any disputed matters arising under this Agreement, the Ancillary Agreements or any of the transactions contemplated hereby or thereby, but excluding the right to receive funds on behalf of such Shareholder. Each Selling Party Shareholder agrees to receive correspondence be bound by any and all actions taken by Shareholders’ Representative on his or its behalf. Shareholders agree jointly (but not solidarily) to indemnify Shareholders’ Representative from and against and in respect of any and all liabilities, damages, claims, costs and expenses, including, but not limited to, attorneys’ fees, arising out of or due to any action by him as Shareholders’ Representative and any and all actions, proceedings, demands, assessments, or judgments, costs, and expenses incidental thereto, except to the extent that the same result from bad faith or gross negligence on the part of Shareholders’ Representative, including and in electronic form.
(b) The each case solely to the extent of such Shareholder’s Designated Percentage of the aggregate amount so owed to the Shareholder’s Representative. Buyer shall be entitled to rely exclusively and completely upon any communications given by Shareholders’ Representative on behalf of any Shareholder, and shall not be liable for any act done action taken or omitted hereunder as the not taken in reliance upon Shareholders’ Representative while acting in good faith and without negligence and nor have any act done or omitted pursuant duty to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according inquire as to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the whether Shareholders’ Representative and hold it harmless against has received any loss, liability Consent of any Shareholder. Buyer shall be entitled to disregard any notices or expense incurred without gross negligence communications given or bad faith on the part made by any Shareholder unless given or made through Shareholders’ Representative. The power of the attorney granted by each Shareholder to Shareholders’ Representative hereunder is irrevocable and arising out coupled with an interest. Notwithstanding the appointment of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in hereunder, Buyer may require the exercise or performance written concurrence of any of its powers, rights, duties or privileges under this Agreement on behalf of Shareholder to any Selling Partiesaction taken hereunder. The Shareholders’ Representative may hereby accepts such mandate and agrees to serve in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithcapacity.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser Shareholders' Representative shall act as the exclusive representative of each Controlling Shareholder for the purpose of settling on their behalf claims made by any Buyer Indemnified Party under Section 8.1(b) or asserting on their behalf claims against Buyer under Section 8.1(c), representing them in any indemnification proceedings under Section 8.2, and representing them in connection with any other claim by any Buyer Indemnified Party. The Shareholders’ ' Representative shall also act as the exclusive representative of each Controlling Shareholder for and on behalf the purpose of instructing the Selling Parties, with Escrow Agent as to distributions from the authority (i) to perform the obligations of Escrow Fund. Each Controlling Shareholder shall be bound by any action taken by the Shareholders’ ' Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formon their behalf.
(b) The Buyer Indemnified Parties and the Escrow Agent shall be entitled to rely exclusively upon any notice or communication given by the Shareholders’ ' Representative with respect to the Controlling Shareholders and shall not be liable in any manner whatsoever for any action taken or not taken in reliance upon such notice or communication. The Buyer Indemnified Parties and the Escrow Agent shall be entitled to disregard any notice or communication from any Controlling Shareholder with respect to the matters described in this Section 8.4 unless given or made through the Shareholders' Representative.
(c) In the event of the inability of the Shareholders' Representative to perform its functions hereunder, a majority of the Controlling Shareholders, voting in proportion to the number of Company Shares owned by them on the Closing Date, shall appoint a substitute Shareholders' Representative.
(d) The Shareholders' Representative shall not be liable to any Controlling Shareholder for any act done action taken or omitted hereunder to be taken by it as the Shareholders’ ' Representative while acting unless it is proved by clear and convincing evidence that its action or failure to act was undertaken with willful or deliberate intent to cause injury to the Controlling Shareholders. Without limiting the foregoing, the Shareholders' Representative shall not be liable to any Controlling Shareholder for any action taken or omitted to be taken by it as the Shareholders' Representative in good faith and without negligence and in reliance upon any act done advice, opinion, report or omitted pursuant to the advice of counsel other information prepared by legal counsel, public accountants or other professionals. The Shareholders' Representative shall be conclusive evidence indemnified and held harmless out of the Escrow Fund prior to any such distribution being made, from and against any Loss or expense of any nature incurred by the Shareholders' Representative arising out of its duties as Shareholders' Representative, including reasonable legal fees and other costs and expenses of defending against any claim arising out of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly)duties, according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability unless such Loss or expense incurred without gross negligence shall be caused by the willful or bad faith on the part deliberate misconduct of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith' Representative.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Merger Agreement (Harland John H Co)
Shareholders’ Representative. (a) The Selling Parties, by adopting By virtue of the approval of this Agreement and the transactions contemplated herebyhereunder by the Shareholders and without any further action of any of the Shareholders or the Company, ▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ is hereby irrevocably appoint and constitute K Laser appointed as the “Shareholders’ Representative Representative”, the exclusive agent and attorney-in-fact for and on behalf of the Selling Partieseach Shareholder, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communicationscommunications to Purchaser for any purpose under this Agreement and the Additional Agreements, (iiiii) to agree to, negotiate, enter into settlements and provide amendments compromises of and supplements demand arbitration and comply with orders of courts and awards of arbitrators with respect to any indemnification claims (including Third-Party Claims) under Section 10.1 or other disputes arising under or related to this Agreement, (iii) to enter into and waivers in respect deliver the Escrow Agreement on behalf of this Agreement and each of the Option AgreementShareholders, (iv) to retain legal counselauthorize or object to delivery to the Purchaser of the Escrow Fund, accountantsor any portion thereof, consultants in satisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow Agreement, (v) to act on behalf of Shareholders in accordance with the provisions of the Agreement, the securities described herein and other experts, and incur any other reasonable expenses, document or instrument executed in connection with, with the Agreement and (vi) to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Shareholders from time to time upon not no less than ten twenty (1020) days’ prior written notice to the Purchaser, provided, however, that the Shareholders’ Representative may not be removed unless holders of at least 51% of all of the Selling Parties and Company Ordinary Shares on an as-if converted basis outstanding immediately prior to Parent and the transaction contemplated by this Agreement agree to such removal. Any vacancy in the position of Shareholders’ Representative may be filled by approval of the holders of at least 51% of all of the Company Ordinary Shares on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement. Any removal or change of the Shareholders’ Representative shall not be effective until written notice is delivered to Purchaser. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall not receive any compensation for his services. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) . The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence in the exercise of reasonable business judgment. A decision, act, consent or instruction of the Shareholders’ Representative shall, for all purposes hereunder, constitute a decision, act, consent or instruction of all of the Shareholders of the Company and any act done or omitted pursuant to the advice of counsel shall be final, binding and conclusive evidence upon each of such good faith and absence of negligencethe Shareholders. The Selling Parties Shareholders shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it him harmless against any loss, liability liability, or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions anything in this ARTICLE VIII, or any provision Section 13.15 to the contrary set forth in this Agreement or the Option Agreementcontrary, the Shareholders’ Representative Representative, in the capacity as such, shall only have the power no obligation or authority to act with respect to matters pertaining to the Selling Parties as any indemnification claims against a group and not matters pertaining to an individual Selling Party (for example but not Shareholder made by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities Purchaser Indemnitee under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties10.2.
Appears in 1 contract
Sources: Share Exchange Agreement (Ace Global Business Acquisition LTD)
Shareholders’ Representative. (a) The Selling Parties, by adopting Shareholders appoint ▇▇▇ ▇▇▇ (or any Person appointed as a successor Shareholders Representative pursuant to Section 2.5(b)) as their representative and agent under this Agreement and the transactions contemplated herebyEscrow Agreement.
(b) Until all obligations under this Agreement have been discharged (including all indemnification obligations under Article X), hereby irrevocably appoint and constitute K Laser the Shareholders (as a single group voting based on the Shareholders’ Representative for and on behalf total number of Exchange Shares issuable under this Agreement) who, immediately prior to the Closing, are entitled to receive more than 50% of the Selling PartiesExchange Consideration, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreementmay, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all Shareholders Representative and Chilco, remove Shareholders Representative or appoint a new Shareholders Representative upon the death, incapacity, resignation or removal of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Shareholders Representative. Notices If, after the death, incapacity, resignation or communications removal of Shareholders Representative, a successor Shareholders Representative has not been appointed by the Shareholders within 15 business days after a request by Chilco, Chilco will have the right to or from the Shareholders’ appoint a Shareholders Representative to Parent shall constitute fill any vacancy so created by written notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according appointment to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding Shareholders authorize Shareholders Representative to take any action and to make and deliver any certificate, notice, consent or instrument required or permitted to be made or delivered under this Agreement or under the foregoing provisions documents referred to in this ARTICLE VIIIAgreement, to waive any requirements of this Agreement or to enter into one or more amendments or supplements to this Agreement that Shareholders Representative determines in Shareholders Representative’s sole and absolute discretion to be necessary, appropriate or advisable, which authority includes the execution and delivery of the Escrow Agreement on behalf of Shareholders and any amendments or supplements thereto and the performance of all obligations thereunder, including authority to collect and pay funds and dispute, settle, compromise and make all claims. The authority of Shareholders Representative includes the right to hire or retain, at the sole expense of Shareholders, such counsel, investment bankers, accountants, representatives and other professional advisors as Shareholders Representative determines in Shareholders Representative sole and absolute discretion to be necessary, appropriate or advisable in order to perform this Agreement and the Escrow Agreement. Any party will have the right to rely upon any action taken by Shareholders Representative, and to act in accordance with such action without independent investigation.
(d) Chilco will have no liability to any Shareholder or otherwise arising out of the acts or omissions of Shareholders Representative or any provision disputes among Shareholders or with Shareholders Representative. Chilco may rely entirely on its dealings with, and notices to and from, Shareholders Representative to satisfy any obligations it might have under this Agreement, the contrary set forth Escrow Agreement or any other agreement referred to in this Agreement or otherwise to Shareholders.
(e) Shareholders Representative accepts the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not appointment made by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (iiSection 2.5(e) and (iii) agrees to abide by the provisions of this Section 8.1(c2.5(e), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Share Exchange Agreement (Chilco River Holdings Inc)
Shareholders’ Representative. (a) The Selling Parties▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (such person and any successor being the “Shareholders’ Representative”) shall act as the representative of the Shareholders, and shall be authorized to act on behalf of the Shareholders and to take any and all actions required or permitted to be taken by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative under this Agreement with respect to any claims (including the settlement thereof) made by a Parent Indemnified Party for indemnification pursuant to this Article VIII and on behalf of the Selling Parties, with the authority (i) respect to perform the obligations of any actions to be taken by the Shareholders’ Representative set forth in this pursuant to the Escrow Agreement and (including, without limitation, the Option Agreementexercise of the power to (i) authorize the delivery of the Escrow Fund to a Parent Indemnified Party, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur comply with orders of courts with respect t any other reasonable expenses, in connection with, claims for indemnification and to (iii) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment ofof the foregoing). In all matters relating to this Article VIII, any or the Shareholders’ Representative shall be the only party entitled to assert the rights of the Shareholders, and the Shareholders’ Representative shall perform all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest obligations of the shares of Everest of the Selling Shareholders hereunder. The Parent Indemnified Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required entitled to rely on all statements, representations and decisions of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders shall be bound by all actions taken by the Shareholders’ Representative in his, her or its capacity thereof, except for any action that conflicts with the limitations set forth in subsection (d) below. The Shareholders’ Representative shall promptly, and in any event within five (5) business days, provide written notice to the Shareholders of any action taken on behalf of them by the Shareholders’ Representative pursuant to the authority delegated to the Shareholders’ Representative under this Section 8.6. The Shareholders’ Representative shall, at all times, act in his or her capacity as Shareholders’ Representative in a manner that the Shareholders’ Representative believes to be in the best interest of the Shareholders. Neither the Shareholders’ Representative nor any of its directors, officers, agents or employees, if any, 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 Escrow Agreement, except in the case of its gross negligence, bad faith or willful misconduct. The Shareholders’ Representative may consult with legal counsel, independent public accountants and other experts selected by it. The Shareholders’ Representative shall not be liable have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the Escrow Agreement. As t any matters not expressly provided for any act done in this Agreement or omitted hereunder as the Escrow Agreement, the Shareholders’ Representative while acting in good faith and without negligence and shall not exercise any act done discretion or omitted pursuant take any action.
(c) Notwithstanding anything to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest contrary herein or in the shares of EverestEscrow Agreement, indemnify the Shareholders’ Representative is not authorized to, and shall not, accept on behalf of any Shareholder any merger consideration to which such Shareholder is entitled under this Agreement and the Shareholders’ Representative shall not in any manner exercise, or seek to exercise, any voting power whatsoever with respect to shares of capital stock of the Company or Parent now or hereafter owned of record or beneficially by any Shareholder unless Shareholders’ Representative is expressly authorized to do so in a writing signed by such Shareholder.
(d) If Shareholders’ Representative shall die, resign, become disabled or otherwise be unable to fulfill his responsibilities hereunder, or if Shareholders owning a majority of Shares of the Surviving Corporation owned by all Shareholders in the aggregate at the time (or as of the Closing, if after the Closing) shall elect to remove (with or without cause) Shareholders’ Representative, Shareholders shall (by consent of Shareholders owning at least a majority of shares of the Company owned by all Shareholders in the aggregate at the time (or as of the Closing, if after the Closing), within 10 days after such death, resignation, disability, inability or removal, appoint a successor to Shareholders’ Representative (who shall be reasonably satisfactory to Parent). Any such successor shall succeed Shareholders’ Representative as Shareholders’ Representative hereunder. If for any reason there is no Shareholders’ Representative at any time, all references herein to Shareholders’ Representative shall be deemed to refer to Shareholders holding a majority of the Shares.
(e) Shareholders, jointly and severally, agree to indemnify Shareholders’ Representative and to hold it Shareholders’ Representative harmless against any and all loss, liability or expense incurred without fraud, willful misconduct or gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require as Shareholders’ Representative, including the reasonable costs and expenses incurred by Shareholders’ Representative to expend in defending against any claim or risk its own funds or otherwise incur any financial liability in connection with this Agreement. This indemnification shall survive the exercise or performance termination of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling PartiesAgreement. The costs of such indemnification (including the costs and expenses of enforcing the right of indemnification) shall be paid by the Shareholders pro rata in accordance with amounts of the total Purchase Price to be received by each Shareholder (and assuming payment in full of the Earn out Payments). Shareholders’ Representative may may, in good faith all questions arising under this Agreement, rely conclusively upon on the informationadvice of counsel and for anything done, reports, statements and opinions prepared omitted or presented suffered by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on in accordance with such reliance advice, Shareholders’ Representative, solely in its capacity as Shareholders’ Representative, shall not be deemed conclusively liable to have been taken Shareholders, except as expressly provided hereunder. In no event shall Shareholders’ Representative be liable to Shareholders hereunder or in good faithconnection herewith, solely in its capacity as Shareholders’ Representative, for any consequential, special, consequential or punitive damages.
(cf) Notwithstanding Neither Parent nor its Affiliates shall have the foregoing provisions in this ARTICLE VIIIright to object to, protest or otherwise contest any provision matter related to the contrary set forth in this Agreement or the Option Agreement, the procedures for action being taken by Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the between Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties▇▇▇▇ ▇▇▇▇▇ (such person and any successor being the “Shareholders’ Representative”) shall act as the representative of the Company Shareholders, and shall be authorized to act on behalf of the Company Shareholders and to take any and all actions required or permitted to be taken by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative under this Agreement with respect to any claims (including the settlement thereof) made by a Parent Indemnified Party for and on behalf indemnification pursuant to this Article IX (including, without limitation, the exercise of the Selling Parties, with the authority power to (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur comply with orders of courts with respect to any other reasonable expenses, in connection with, claims for indemnification and to (ii) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment ofof the foregoing). In all matters relating to this Article IX, any or the Shareholders’ Representative shall be the only party entitled to assert the rights of the Company Shareholders, and the Shareholders’ Representative shall perform all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest obligations of the shares of Everest of the Selling Company Shareholders hereunder. The Parent Indemnified Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required entitled to rely on all statements, representations and decisions of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Company Shareholders shall be bound by all actions taken by the Shareholders’ Representative in his, her or its capacity thereof, except for any action that conflicts with the limitations set forth in subsection (d) below. The Shareholders’ Representative shall not be liable for promptly, and in any act done or omitted hereunder as event within five business days, provide written notice to the Company Shareholders of any action taken on behalf of them by the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according authority delegated to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability under this Section 9.05. The Shareholders’ Representative shall at all times act in his or expense incurred without gross negligence or bad faith on the part of her capacity as Shareholders’ Representative in a manner that the Shareholders’ Representative and arising out believes to be in the best interest of or in connection with the acceptance or administration of his duties hereunderCompany Shareholders. No provision of this Agreement shall require Neither the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of nor any of its powersdirectors, rightsofficers, duties agents or privileges employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement on behalf Agreement, except in the case of any Selling Partiesits gross negligence, bad faith or willful misconduct. The Shareholders’ Representative may in good faith rely conclusively upon the informationconsult with legal counsel, reports, statements independent public accountants and opinions prepared or presented by counsel or other professionals retained experts selected by it, and any action taken by the . The Shareholders’ Representative based on such reliance shall be deemed conclusively not have any duty to have been taken in good faith.
(c) Notwithstanding ascertain or to inquire as to the foregoing provisions performance or observance of any of the terms, covenants or conditions of this Agreement. As to any matters not expressly provided for in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power not exercise any discretion or authority to act with respect to matters pertaining to the Selling Parties as a group take any action.
(c) Each Company Shareholder shall indemnify and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), hold harmless and the powers conferred on reimburse the Shareholders’ Representative herein from and in the Option Agreement shall not authorize against such Company Shareholder’s ratable share of any and all liabilities, losses, damages, claims, costs or empower expenses suffered or incurred by the Shareholders’ Representative to do arising out of or cause resulting from any action taken or omitted to be done any action (including taken by amendingthe Shareholders’ Representative under this Agreement, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Shareholders’ Representative’s gross negligence, bad faith or willful misconduct.
(d) Notwithstanding anything to the contrary herein, the Shareholders’ Representative is not authorized to, and shall not, accept on behalf of any Company Shareholder any merger consideration to which such Company Shareholder is entitled under this Agreement and the Option Agreement, (ii) alters the consideration payable to Shareholders’ Representative shall not in any Selling Party pursuant to this Agreement or the Option Agreementmanner exercise, or (iii) adds seek to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubtexercise, any change to the nature of the indemnity obligations), in each case voting power whatsoever with respect to clauses (i), (ii) and (iii) shares of this Section 8.1(c), without first obtaining the prior written approval capital stock of the Selling PartiesCompany or Parent now or hereafter owned of record or beneficially by any Company Shareholder unless the Shareholders’ Representative is expressly authorized to do so in a writing signed by such Company Shareholder.
Appears in 1 contract
Sources: Merger Agreement (DemandTec, Inc.)
Shareholders’ Representative. (a) The Selling Parties, by adopting By executing this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, the Shareholders shall have appointed ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (iithe "Shareholders' Representative") as their agent and attorney in fact to give and receive notices and communications, (iii) to appoint the Escrow Agent, to execute the Escrow Agreement, to authorize payment to the Purchaser of cash from the applicable Escrow Fund in satisfaction of claims by the Purchaser, to object to such payments, to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expenses, in connection withdemand 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 (a) necessary or appropriate in the judgment of the Shareholders’ ' Representative for the accomplishment of, any or all of the foregoing, or (b) specifically mandated by the terms of this Agreement. K Laser hereby accepts its appointment as Any vacancy in the position of Shareholders’ Representative. Such agency ' Representative may be changed filled by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and PurchaserEscrow Funds. No bond shall be required of the Shareholders’ Representative' Representative and the Shareholders' Representative shall not receive compensation for its services. Notices or other communications to or from the Shareholders’ ' Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) . The Shareholders’ ' Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ ' Representative while acting in good faith and without negligence and any act done or omitted pursuant in the exercise of reasonable judgment. The Shareholders on whose behalf the Escrow Amounts were was contributed to the advice of counsel Escrow Funds shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ ' Representative and hold it the Shareholders' Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ ' Representative and arising out of or in connection with the acceptance or administration of his the Shareholders' Representative's duties hereunder. No provision of this Agreement shall require , including the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance reasonable fees and expenses of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by legal counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding ' Representative. After all claims for Losses by the foregoing provisions in this ARTICLE VIII, or any provision to the contrary Purchaser set forth in this Agreement Claim Notices delivered to the Escrow Agent and the Shareholders' Representative has been satisfied, or the Option Agreementreserved against, the Shareholders’ ' Representative, with the consent of the majority in interest in the Escrow Funds, may recover from the Escrow Fund on the Release Date (prior to the distribution of the Escrow Funds to the Shareholders pursuant to Section 7.6) payments not yet paid for any expenses incurred in connection with the Shareholders' Representative's representation hereby. A decision, act, consent or instruction of the Shareholders' Representative shall only have constitute a decision of the power Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and the Purchaser may rely upon any such decision, act, consent or authority instruction of the Shareholders' Representative as being the decision, act, consent or instruction of the Shareholders. The Escrow Agent and the Purchaser are hereby relieved from any liability to act any person for any acts done by them in accordance with respect to matters pertaining such decision, act, consent or instruction of the Shareholders' Representative. Subject to the Selling Parties as a group and not matters pertaining to an individual Selling Party (Purchaser's prior claims for example but not by way of limitationindemnification against the Escrow Funds, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ ' Representative herein shall be entitled to receive payment for its reasonable and in the Option Agreement shall not authorize or empower documented expenses therefrom, prior to any payments to the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Stock Purchase Agreement (Scientific Technologies Inc)
Shareholders’ Representative. (a) The Selling PartiesBy executing and delivering this Agreement, by adopting this Agreement and the transactions contemplated hereby, each Shareholder hereby irrevocably appoint and constitute K Laser as agrees that the Shareholders’ Representative for shall be entitled to take any action under Article III and on behalf Article XIV of this Agreement without consultation with, notice to, or agreement by, such Shareholder, including the exercise of the Selling Parties, with the authority power to (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into settlements and provide amendments compromises of and supplements comply with orders of courts with respect to and waivers in respect claims under this Article XIV of this Agreement and or the Option Escrow Agreement, (ivii) to retain legal counsel, accountants, consultants and other expertsresolve any claims under this Article XIV of this Agreement or the Escrow Agreement, and incur any other reasonable expenses, in connection with, and to (iii) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or of the foregoing and all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties other terms, conditions and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms limitations of this Agreement or applicable lawand the Escrow Agreement and the transactions contemplated hereby and thereby. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not Shareholder will be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented bound by counsel or other professionals retained by it, and any action all actions taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in connection with this Agreement or the Option Escrow Agreement and the transactions contemplated hereby and thereby. The Shareholders’ Representative will incur no liability to any Shareholder (i) with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other document believed by it to be genuine and to have been signed by the proper Person (and shall have no responsibility to determine the authenticity thereof), nor (ii) for any other action or inaction taken pursuant to this Agreement, except for its own willful misconduct or bad faith. In all questions arising under this Agreement or the Escrow Agreement and the transactions contemplated hereby or thereby, the Shareholders’ Representative shall only have may rely on the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way advice of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)counsel, and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall will not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder liable to any Selling Party being distributed Shareholder for anything done, omitted or suffered in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesgood faith.
Appears in 1 contract
Sources: Asset Purchase Agreement (Matthews International Corp)
Shareholders’ Representative. (a) The Selling PartiesExcept as otherwise provided in this Agreement, any right or action that may be taken at the election of the Seller, Parent, the Shareholders or a Shareholder will be taken by adopting this Agreement a representative of the Seller, Parent, and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as Shareholders (the “Shareholders’ Representative”) on behalf thereof. The initial Shareholders’ Representative for and on behalf of the Selling Partieswill be J▇▇▇▇ ▇▇▇▇▇▇▇▇. Upon his resignation, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Seller’s capital stock as set forth on Schedule 3.2 may designate a successor Shareholders’ Representative. Notices or communications to or from the Any Shareholders’ Representative so designated must be reasonably acceptable to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formPurchaser.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as Any change in the Shareholders’ Representative while acting will become effective upon notice in good faith accordance with Section 9.1. The Seller, Parent, and without negligence the Shareholders, jointly and severally, will indemnify and hold the Purchaser Indemnitees and their representatives harmless from any claim of the Seller, Parent, or any Shareholder arising out of any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify omission by the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance transactions contemplated by this Agreement.
(c) Except as otherwise provided in this Agreement, any right or administration action that may be taken at the election of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend Seller, Parent, the Shareholders or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action a Shareholder will be taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding behalf thereof. The Seller, Parent, and each of the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, Shareholders hereby irrevocably appoints the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to agent and attorney-in-fact of the Selling Parties as a group Seller, Parent and not matters pertaining to an individual Selling Party (each of the Shareholders for example but not by way the purposes of limitationacting in the name and stead of the Seller, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)Parent, and such Shareholder in: (a) receiving, holding and distributing the powers conferred Purchase Price and paying any associated costs and expenses of the transactions hereunder required to be paid by the Seller, Parent, or such Shareholder; (b) giving and receiving all notices permitted or required by this Agreement and acting on the Seller’s, Parent, and any Shareholder’s behalf hereunder for all purposes specified herein; (c) agreeing with the Purchaser as to any amendments to this Agreement which the Shareholders’ Representative herein may deem necessary or advisable; (d) employing legal counsel; (e) paying any legal and in the Option Agreement shall not authorize or empower any other fees and expenses incurred by the Shareholders’ Representative to do in consummating the transactions contemplated by this Agreement; (f) defending or cause to be done any action (including by amending, modifying or waiving any provision of settling claims arising under this Agreement or any Transaction Document; and (g) making, executing, acknowledging, and delivering all such contracts, orders, receipts, notices, requests, instructions, certificates, letters, and other writings, and in general doing all things and taking all actions which the Option Shareholders’ Representative, in its sole discretion, may consider necessary or proper in connection with or to carry out the terms of this Agreement) that (i) results , as fully as if the Seller, Parent, and/or such Shareholders were personally present and acting. This power of attorney and all authority conferred hereby is granted and conferred subject to the interests of the other Parties to this Agreement, and in consideration of those interests and for the amounts payable hereunder to purpose of completing the transactions contemplated hereby, this power of attorney and all authority conferred hereby shall be irrevocable and shall not be terminated by the Seller, Parent, or any Selling Party being distributed in Shareholder or by operation of Law, whether by the termination of the Shareholders’ Representative or by the occurrence of any manner other than as permitted event. If any Shareholder should die or become incompetent or incapacitated, all actions taken by the Shareholders’ Representative pursuant to this Agreement and shall be as valid as if such death, incompetence, or incapacity had not occurred, regardless of whether the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement Purchaser or the Option AgreementShareholders’ Representative, or (iii) adds any of them, shall have received notice of such death, incompetence, incapacity, or other event. The Shareholders’ Representative will be promptly reimbursed by the Shareholders for all reasonable expenses, disbursements and advances incurred by the Shareholders’ Representative in such capacity upon demand. The Shareholders, severally and not jointly, agree to or results in an increase of indemnify and hold harmless the Shareholders’ Representatives for and from any Selling Party’s indemnity loss, liability, expense, charge, damages, claims or other obligations he may incur as a result of his duties hereunder or liabilities under this Agreement (includingany of his actions or inactions as such, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesexcept as may result from his willful misconduct or gross negligence.
Appears in 1 contract
Sources: Asset Purchase Agreement (Measurement Specialties Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and Each of the transactions contemplated hereby, Shareholders hereby irrevocably appoint constitutes and constitute K Laser appoints W▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the “Shareholders’ Representative”) as that Shareholder’s true and lawful agent and attorney-in-fact for the purposes specified in Section 12.13(b). This power of attorney is coupled with an interest and is irrevocable. The Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formserve without compensation.
(b) The Shareholders’ Representative shall not have full power and authority, on behalf of all Shareholders, to control, and resolve all disputes concerning matters described in Sections 2.2 and 2.4 through 2.8. In furtherance of the foregoing and with respect to those matters, the Shareholders’ Representative shall have the power to enter into any agreement in connection therewith, to exercise all or any of the powers, authority and discretion conferred upon it under this Agreement, to waive any terms and conditions of this Agreement, to give and receive notices on behalf of the Shareholders and to be liable for the Shareholders’ exclusive representative with respect to any matter, suit, claim, action or proceeding arising with respect to the matters described in Sections 2.2, 2.4 through 2.8 and Section 10.4. The Shareholders’ Representative agrees to act done or omitted hereunder as, and to undertake the duties and responsibilities of, such agent and attorney-in-fact.
(c) If, following the date of this Agreement, W▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ceases to serve as the Shareholders’ Representative while acting in good faith for any reason, then the Principals shall elect, by a majority vote of the Principals that will be binding upon all of the Principals and without negligence the Other Shareholders, another Principal to serve as a successor to M▇. ▇▇▇▇▇▇▇ as the Shareholder’s Representative, and any act done or omitted pursuant that successor will thereupon be deemed to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative for all purposes under this Agreement and hold it harmless against any losswill be vested in all the powers, liability or expense incurred without gross negligence or bad faith on and subject to all of the part obligations, of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement Agreement.
(d) The Buyer and its Affiliates and their respective officers, directors, employees, agents, advisors and representatives shall be entitled to rely on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action actions taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, without any change liability or obligation to the nature any of the indemnity obligations)Shareholders, in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining notwithstanding any knowledge on the prior written approval part of the Selling PartiesBuyer or any of its Affiliates or any of their respective officers, directors, employees, agents, advisors or representatives of any dispute, disagreement or controversy regarding or involving any of the Shareholders.
Appears in 1 contract
Sources: Stock Purchase Agreement (Washington Trust Bancorp Inc)
Shareholders’ Representative. (a) The Selling PartiesEach of the Shareholders has irrevocably constituted and appointed Lore▇ ▇▇▇▇▇▇▇, ▇▇d Mr. ▇▇▇▇▇▇▇ ▇▇▇ accepted such appointment, as their agent and attorney-in-fact with full power of substitution and revocation to do any and all things and execute any and all documents on his or her behalf which may be necessary, convenient, or appropriate to facilitate the consummation of the transactions contemplated by adopting this Agreement, including but not limited to: (i) amendments to this Agreement, provided that no amendment shall materially adversely affect the rights of any one Shareholder relative to any other Shareholders; (ii) execution of documents and certificates pursuant to this Agreement; (iii) receipt of payments under or pursuant to this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as disbursement thereof to the Shareholders’ Representative for ; (iv) receipt and forwarding of notices and communications pursuant to this Agreement; (v) negotiation and compromise of any Holdback and indemnity claims made by Buyer hereunder; and (vi) payment of fees and expenses incurred on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, Shareholders in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of with this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formAgreement.
(b) The Buyer shall be fully protected in dealing with Mr. ▇▇▇▇▇▇▇ ▇▇▇er this Agreement and may rely upon the authority of Mr. ▇▇▇▇▇▇▇ ▇▇ act as the Shareholders’ Representative ' Representative. Any payments or delivery of payments by the Buyer to Mr. ▇▇▇▇▇▇▇ ▇▇▇er this Agreement for the benefit of the Shareholders shall be considered payments by the Buyer to the Shareholders. The appointment of Mr. ▇▇▇▇▇▇▇ ▇▇ coupled with an interest and is irrevocable by any Shareholder in any manner or for any reason, unless written revocation is personally delivered to Mr. ▇▇▇▇▇▇▇ ▇▇▇ the Buyer on or prior to the time that action on behalf of the Shareholders is taken or payments or deliveries are made, in which case such revocation shall only apply to actions taken or proposed to be taken after receipt of such notice. This power of attorney shall not be liable for any act done affected by the death, disability, or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance incapacity of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithShareholder.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or If at any provision to the contrary set forth in this Agreement or the Option Agreementtime there is no Person acting as Shareholders' Representative for any reason, the Shareholders’ Representative shall only have Shareholders holding a majority interest in the power or authority Class A and Class B shares shall
choose a Person to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in Shareholders' Representative under this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesIn order to administer efficiently the rights and obligations of the Shareholders under this Agreement, by adopting this Agreement the Shareholders hereby designate and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser Alan ▇▇▇▇▇ ▇▇▇ John ▇▇▇ ▇▇▇ntly as the Shareholders’ Representative ' Representative, to serve as the Shareholders' agent and attorney-in-fact for and on behalf the limited purposes set forth in Section 4.1(b) of this Agreement.
(b) Each of the Selling PartiesShareholders hereby appoints the Shareholders' Representative as such Shareholder's agent, proxy and attorney-in-fact, with full power of substitution, for all purposes set forth in this Agreement, including, without limitation, the full power and authority on such Shareholder's behalf (i) to perform consummate the obligations of the Shareholders’ Representative set forth in transactions contemplated by this Agreement and the Option Agreement, (ii) to give and receive notices and communicationsdisburse any funds received hereunder to the Shareholders, (iii) to agree to, negotiate, enter into execute and provide amendments deliver any certificates representing the Shares and supplements to and waivers in respect execution of this Agreement and the Option Agreementsuch further instruments of assignment as Buyer shall reasonably request, (iv) to execute and deliver on behalf of each Shareholder any amendment or waiver under this Agreement, (v) to retain legal counsel, accountants, consultants counsel and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or professional services in connection with the acceptance or administration of his duties hereunder. No provision performance by the Shareholders' Representative of this Agreement shall require the Shareholders’ Representative Agreement, and (vi) to expend do each and every act and exercise any and all rights which such Shareholder or risk its own funds Shareholders are permitted or otherwise incur any financial liability in the required to do or exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf and the other agreements, documents and certificates executed in connection herewith. Each of the Shareholders agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Shareholders' Representative and shall survive the death, bankruptcy or other incapacity of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements Shareholder; provided that such agency and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance proxy shall be deemed conclusively terminate if this Agreement is terminated pursuant to have been taken in good faithits terms.
(c) Notwithstanding Alan ▇▇▇▇▇ ▇▇▇ John ▇▇▇ ▇▇▇ntly shall serve as the foregoing provisions in this ARTICLE VIII, Shareholders' Representative until one of them resigns or any provision is otherwise unable or unwilling to serve. In the contrary set forth in this Agreement event that Alan ▇▇▇▇▇ ▇▇ John ▇▇▇ ▇▇▇igns or the Option Agreementis otherwise unable or willing to serve, the other shall serve alone as the Shareholders’ Representative ' Representative. In the event that both Alan ▇▇▇▇▇ ▇▇▇ John ▇▇▇ ▇▇▇ign or are otherwise unable to unwilling to serve, the remaining Shareholders shall only have select, by the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach vote of a covenant in majority of the holders of the Shares, a successor representative to fill such vacancy, shall provide prompt written notice to Parent and Buyer of such change and such substituted representative shall then be deemed to be the Shareholders' Representative for all purposes of this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Minority Shareholder Purchase Agreement (Quiksilver Inc)
Shareholders’ Representative. (a) The Selling PartiesIn order to administer efficiently (A) the implementation of the Agreement by the Sellers and Shareholders, by adopting this Agreement and (B) the waiver of any condition to the obligations of the Sellers or the Shareholders to consummate the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as (C) the Shareholders’ Representative for and on behalf settlement of any dispute with respect to the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, the Sellers and Shareholders hereby designate ▇▇▇▇▇ ▇. ▇▇▇▇▇ as their representative (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the "Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ ' Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form").
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as Sellers and Shareholders hereby authorize the Shareholders’ ' Representative while acting in good faith and without negligence and any act done or omitted pursuant (A) to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or take all action necessary in connection with the acceptance or administration implementation of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of the Sellers and Shareholders, the waiver of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon condition to the informationobligations of the Shareholders to consummate the transactions contemplated hereby, reportsor the settlement of any dispute, statements (B) to give and opinions prepared or presented by counsel or other professionals retained by it, receive all notices required to be given under the Agreement and (C) to take any and all additional action as is contemplated to be taken by or on behalf of the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithSellers and/or Shareholders by the terms of this Agreement.
(c) Notwithstanding In the foregoing provisions event that the Shareholders' Representative dies, becomes legally incapacitated or resigns from such position, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall fill such vacancy and shall be deemed to be the Shareholders' Representative for all purposes of this Agreement; however, no change in the Shareholders' Representative shall be effective until Global is given notice of it by the Sellers and Shareholders.
(d) All decisions and actions by the Shareholders' Representative shall be binding upon all of the Sellers and Shareholders, and no Seller or Shareholder shall have the right to object, dissent, protest or otherwise contest the same, in the absence of fraud, gross negligence or willful misconduct of the Shareholders' Representative.
(e) By their execution of this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group Sellers and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that Shareholders agree that:
(i) results in Global shall be able to rely conclusively on the amounts payable hereunder instructions and decisions of the Shareholders' Representative as to any Selling Party being distributed in any manner other than as actions required or permitted pursuant to this Agreement and be taken by the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement Sellers or Shareholders or the Option AgreementShareholders' Representative hereunder, and no party hereunder shall have any cause of action against Global for action taken by Global in reliance upon the instructions or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature decisions of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.Shareholders' Representative;
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, In order to administer the transactions contemplated by adopting this Agreement and the transactions contemplated herebyEscrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 5.03, the Shareholders hereby irrevocably designate and appoint the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇ as their representative for this Agreement and constitute K Laser the Escrow Agreement and as the Shareholders’ Representative attorney-in- fact and agent for and on behalf of each Shareholder (in such capacity, the Selling Parties"Shareholder Representative"). Said power of attorney shall be coupled with an interest and shall be irrevocable.
(b) Each Shareholder hereby authorizes the Shareholder Representative to represent each Shareholder, and theirs successors, with respect to all matters arising under this Agreement and the authority Escrow Agreement, including, without limitation, (i) to perform take all action necessary in connection with the indemnification obligations of the Shareholders’ Representative set forth in this Agreement Shareholders under Section 5.03, including, the defense or settlement of any claims and the Option Agreementmaking of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow Agreement and communications, (iii) to agree to, negotiate, enter into take any and provide amendments and supplements all additional action as is contemplated to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary be taken by or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken Shareholders by the Shareholders’ Shareholder Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Escrow Agreement.
(c) In the event that the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇ or any substitute Shareholder Representative becomes unable to perform its responsibilities as Shareholder Representative or resigns from such position, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇ 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 Parent, the Buyer 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, she or it were a party hereto.
(iid) alters All decisions and actions by the consideration payable Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Buyer, the Parent or the Escrow Agent relating to the indemnification obligations of the Shareholders under Section 5.03, 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 incur no liability to the Shareholders with respect to any Selling Party pursuant action taken or suffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by it to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 5.03, including the defense or settlement of any 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 Option Escrow Agreement, rely on the advice of counsel, and for anything done, omitted or (iii) adds to or results suffered in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for good faith by the avoidance of doubt, any change Shareholder Representative shall not be liable to the nature Shareholders.
(e) The Buyer, the Company, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions of the indemnity obligations), in each case Shareholder Representative with respect to clauses (i)this Agreement and the Escrow Agreement, (ii) including, without limitation, the indemnification obligations of the Shareholders under Section 5.03, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and (iii) no party hereunder shall have any cause of action against the Buyer, the Company, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. 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 Buyer, the Company, 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 Buyer, the Company, the Parent and the Escrow Agent, and each of their respective successors, assigns, officers, directors, stockholders, affiliates, employees, representatives and other agents, from and against any and all claims, liabilities, taxes, losses, damages or injuries, together with costs and expenses, including reasonable legal fees suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section 8.1(c), without first obtaining and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the prior written approval Shareholder Representative may incur costs and expenses on behalf of the Selling PartiesShareholders in his capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Closing.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties11.13.1 Each Shareholder hereby irrevocably appoints the Shareholders’ Representative as his, by adopting her or its attorney-in-fact and agent to take any and all action and to execute any and all documents on such Shareholder’s behalf with respect to this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement other Transaction Documents and the Option transactions provided for herein or therein, including the making and execution of any amendments to this Agreement, (ii) to give and receive the giving of any notices and communicationspursuant hereto, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants compromise or settlement of any and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency disputes which may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related hereafter arise pursuant to any action for which the Selling Parties’ consent is required under the terms provision of this Agreement or applicable lawany other Transaction Document or the transactions provided for herein or therein. Each Selling Party agrees This appointment is irrevocable and coupled with an interest and shall not be affected by the death, incapacity, illness, dissolution or other inability to receive correspondence from act of any of the Shareholders’ Representative, including in electronic form.
(b) . The Shareholders’ Representative shall hereby accepts such appointment.
11.13.2 Each Shareholder that is not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith a Trust hereby agrees joint and without negligence and any act done or omitted pursuant severally to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and to hold it the Shareholders’ Representative harmless against from any loss, liability or expense incurred without willful violation of the Law or gross negligence by the Shareholders’ Representative arising out of, or bad faith on in connection with, his duties as Shareholders’ Representative, including the part costs, fees and expenses incurred by the Shareholders’ Representative in defending against any claim or liability in connection therewith.
11.13.3 The Shareholders’ Representative shall and hereby agrees to serve without compensation.
11.13.4 The Shareholders’ Representative shall and hereby agrees to keep the Shareholders informed of all notices received by the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action all actions taken by the Shareholders’ Representative based on within a reasonable period of time after such reliance receipt or such action, as the case may be.
11.13.5 The Purchaser and the Escrow Agent shall be deemed able to rely conclusively to have been taken in good faith.
(c) Notwithstanding on the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, instructions and decisions of the Shareholders’ Representative as to any actions required or permitted to be taken by the Shareholders hereunder or the other Transaction Documents, and no Party shall only have any cause of action against the power Purchaser or authority to act with respect to matters pertaining the Escrow Agent to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way extent that either Purchaser or the Escrow Agent, respectively, has relied upon the instructions or decisions of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesRepresentative.
Appears in 1 contract
Shareholders’ Representative. (a) By approval of this Agreement ---------------------------- and the transactions contemplated hereby by the requisite percentage of the Shareholders under the California Code, the Shareholders designate Tira Capital Management, Inc., who hereby accepts such appointment (or, in the event that Tira Capital Management, Inc. is unable to serve or resigns, ▇▇▇▇▇ ▇▇▇) to be such Shareholder's representative for purposes of this Agreement (the "Shareholders' Representative"). The Shareholders shall be bound by any and all actions taken by the Shareholders' Representative on their behalf.
(a) The Selling Parties, Parent and Newco shall be entitled to rely upon any communication or writing given or executed by adopting the Shareholders' Representative. All communications or writings to be sent to Shareholders pursuant to this Agreement may be addressed to the Shareholders' Representative and any communication or writing so sent shall be deemed notice to all of the Shareholders hereunder. By approval of this Agreement and the transactions contemplated herebyhereby by the requisite percentage of the Shareholders under the California Code, hereby irrevocably appoint the Shareholders consent and constitute K Laser as agree that the Shareholders’ ' Representative for and is authorized to accept deliveries, including any notice, on behalf of the Selling Parties, with the authority Shareholders pursuant hereto.
(ib) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect By approval of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in transactions contemplated hereby by the judgment requisite percentage of the Shareholders’ Representative for Shareholders under the accomplishment ofCalifornia Code, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond ' Representative shall be required appointed and constituted the true and lawful attorney-in-fact of the Shareholders’ Representative. Notices each Shareholder, with full power in his or communications her name and on his or her behalf to or from the Shareholders’ Representative act according to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from in the absolute discretion of the Shareholders’ ' Representative, including and in electronic formgeneral to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with Sections 2 and 10 of this Agreement. This power of attorney and all authority hereby and thereby conferred shall be granted subject to and coupled with the interest of the Shareholders and in consideration of the mutual covenants and agreements made herein, and shall be irrevocable and shall not be terminated by any act of any Shareholder, by operation of law, whether by such Shareholder's death or any other event.
(bc) Notwithstanding the foregoing, the Shareholders' Representative shall inform each Shareholder of all notices received, and of all actions, decisions, notices and exercises of any rights, power or authority proposed to be done, given or taken by such Shareholders' Representative, and shall act as directed by the Shareholders holding a majority interest in the Escrow Property.
(d) The Shareholders’ ' Representative shall not be liable suffer any liability or loss for any act done performed or omitted to be performed by him in his capacity as Shareholders' Representative under this Agreement in the absence of gross negligence or willful misconduct. The Shareholders' Representative may consult with legal counsel in connection with his duties hereunder as the Shareholders’ Representative while acting and shall be fully protected by any act taken, suffered, permitted, or omitted in good faith and without negligence and any act done or omitted pursuant to in accordance with the advice of counsel legal counsel.
(e) The Shareholders' Representative shall be conclusive evidence entitled to employ such legal counsel and other experts as he may deem necessary to advise him properly with respect to his rights and obligations hereunder and to evaluate claims and to pursue challenges to claims or to defend third party claims. The reasonable expenses and fees of such good faith legal counsel and, experts, and absence of negligence. The Selling Parties shall severally (and not jointly)any reasonable, according to each Selling Parties’ prodocumented out-rata interest in the shares of Everest, indemnify of-pocket expenses which the Shareholders’ ' Representative incurs under this Section 2.8 in relation to evaluating, challenging or contesting claims, shall be reimbursed solely by the Shareholders.
(f) The Shareholders shall indemnify, defend and hold it the Shareholders' Representative harmless from and against any and all loss, damage, tax, liability or and expense that may be incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and by him arising out of or in connection with the acceptance or administration of the Shareholder Representative's duties, except as caused by his duties hereunder. No provision gross negligence or willful misconduct, including the legal costs and expenses of this Agreement shall require the Shareholders’ Representative to expend defending himself against any claim or risk its own funds or otherwise incur any financial liability in the exercise or connection with his performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The as Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith' Representative.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Merger Agreement (Verticalnet Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement ▇▇▇▇▇ ▇▇▇▇▇▇ shall be constituted and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser appointed as the Shareholders’ Representative agent and attorney-in-fact (the "Shareholders Representative") for each Shareholder for and on behalf of the Selling Parties, with the authority Shareholders to (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (ii) authorize delivery to Cirrus of shares of Cirrus Common Stock from the Indemnity Fund in satisfaction of claims by Cirrus Indemnitees and object to such deliveries, (iii) authorize any and all actions on behalf of the Shareholders related to the payment or allocation of the Indemnity Fund, (iv) agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expenses, in connection withcomply with orders of courts with respect to Losses, and to (v) take all actions necessary or appropriate in the judgment of the Shareholders’ ' Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as foregoing or implementation of any provision of this Agreement for which the Shareholders’ Representative' Representative is authorized by the Shareholders, including, without limitation, to conduct, negotiate and settle any arbitration under Section 13.3 with respect to Losses. Such agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to Cirrus; provided that the Shareholders' Representative may not be removed unless holders of a majority in interest of the Indemnity Fund agree to such removal and to the identity of the substituted agent. Any vacancy in the position of the Shareholders' Representative may be filled by approval of the holders of a majority in interest of the shares Indemnity Fund, provided that if the holders of Everest a majority in interest in the Indemnity Fund are not able fill a vacancy prior to the effective date of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all resignation or removal of the Selling Parties and to Parent and PurchaserShareholders Representative, then ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall act as the Shareholders' Representative, until a successor can be appointed in accordance with this Section 11.6(a). No bond shall be required of the Shareholders’ ' Representative, and the Shareholders' Representative shall not receive compensation for his services (although he will be reimbursed for reasonable costs and expenses in accordance with Section 11.6(e) below). Notices or communications to or from the Shareholders’ ' Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ ' Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ ' Representative while acting in good faith and without negligence and any act done or omitted pursuant to in the advice exercise of counsel shall be conclusive evidence of such good faith and absence of negligencereasonable judgment. The Selling Parties Shareholders shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ ' Representative and hold it the Shareholders' Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ ' Representative and arising out of or in connection with the acceptance or administration of his the Shareholders' Representative's duties hereunder. No provision of this Agreement shall require , including the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance reasonable fees and expenses of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by legal counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith' Representative.
(c) Notwithstanding A decision, act, consent or instruction of the foregoing provisions Shareholders' Representative shall constitute a decision of all the Shareholders and shall be final, binding and conclusive upon each of them, and Cirrus, the Escrow Agent and any arbitrator handling disputes under this Article XI may rely upon any such decision, act, consent or instruction of the Shareholders' Representative as being the decision, act, consent or instruction of each Shareholder. Cirrus, the Escrow Agent and any arbitrator handling disputes under this Article XI are hereby relieved from any liability to any person for any acts done by them in this ARTICLE VIIIaccordance with such decision, act, consent or instruction of the Shareholders' Representative.
(d) No individual Shareholder may directly assert any of his, her, or its rights under this Article XI. Any rights to indemnification or defend any provision to the contrary set forth in this Agreement third party claims by a Shareholder must be asserted or the Option Agreement, conducted solely through the Shareholders’ Representative shall only have ' Representative.
(e) During the power or authority to act with respect to matters pertaining to Escrow Period (as defined in the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Escrow Agreement), Shareholders' Representative may be reimbursed up to $20,000 from the Escrow Fund for reasonable and actual expenses incurred by Shareholders' Representative in performing his duties hereunder and under the powers conferred on Escrow Agreement upon delivery of a certificate setting forth such expenses to the Escrow Agent and Cirrus. After the expiration of the Escrow Period, Shareholders’ ' Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative be reimbursed (but only after all amounts owed to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted Cirrus pursuant to this Article XI as implemented by Section 5.1 of the Escrow Agreement have been paid to Cirrus) for any additional reasonable and actual expenses for which Shareholders' Representative has not received reimbursement, prior to distribution of the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change Escrow Funds to the nature of Shareholders in accordance with the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesEscrow Agreement.
Appears in 1 contract
Sources: Merger Agreement (Cirrus Logic Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Shareholders hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative as their agent and attorney-in-fact, as their sole representative for and on behalf of the Selling PartiesShareholders and to receive and distribute cash payments, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) and otherwise in satisfaction of indemnification claims by any Indemnified Party pursuant to this Article VIII, to object to such payments, to agree to, negotiate, enter into settlements and provide amendments compromises of, and supplements demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any indemnification claim hereunder or any dispute between any Indemnified Party and any Indemnifying Party, in each case relating to and waivers in respect of this Agreement and or the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection withTransactions, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoingforegoing or (ii) specifically mandated by the terms of this Agreement. K Laser hereby accepts its appointment as the The Shareholders’ Representative. Such agency Representative may not be changed by removed other than with the holders consent of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and PurchaserShareholders. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall not receive any compensation for its services. Notices Other than in connection with any claim pursued by an Indemnified Party directly against a Shareholder, notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each the Shareholders.
(b) A decision, act, consent or instruction of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including an amendment, extension or waiver of any provision of this Agreement pursuant to Section 9.4 (Extension; Waiver) and Section 10.10 (Amendment and Modification) and shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders, and Purchaser may rely upon any such decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of the Shareholders. Purchaser is hereby relieved from any liability to any person for any acts done by it in electronic formaccordance with such decision, act, consent or instruction of the Shareholders’ Representative.
(bc) The Shareholders’ Representative shall not distribute or cause to be liable for distributed, in each case in accordance with the Distribution Schedule: (i) to each Shareholder the portion of the Adjusted Cash Consideration payable to such Shareholder in respect of such Shareholder’s Company Shares, pursuant the Distribution Schedule; and (ii) any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant other monies that may be distributed to the advice Shareholders after the Closing on account of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally their Company Shares.
(and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. d) The Shareholders’ Representative may in good faith rely conclusively and act upon any statement, report or opinion prepared by or any advice received from the informationauditors, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by professional advisors of the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, Representative. Absent fraud or any provision to the contrary set forth in this Agreement or the Option Agreementwillful misconduct, the Shareholders’ Representative shall only have not be responsible or held liable, in each case to any Shareholders for any loss or damage resulting from so relying or from acting in accordance with this Agreement as the power or authority Shareholders’ Representative. Each Shareholder agrees (i) to act with respect to matters pertaining to the Selling Parties as a group jointly and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), severally indemnify and the powers conferred on hold harmless the Shareholders’ Representative herein and its officers, directors and security holders from and against any and all losses, claims, damages, costs, expenses (including, without limitation, legal fees and expenses on a full indemnity basis) and liabilities (collectively, such losses, claims, damages, costs, expenses and liabilities being the “Indemnified Liabilities”) to which Shareholders’ Representative may become subject, insofar as such Indemnified Liabilities (or actions, suits, or proceedings, including any inquiry or investigation or claim, in the Option Agreement shall not authorize respect thereof) arise out of, in any way relate to, or empower result from its acting as Shareholders’ Representative hereunder and (ii) to reimburse the Shareholders’ Representative to do and its officers, directors and security holders upon demand for all legal or cause to be done any action (including by amendingother expenses, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results if any, incurred in connection with its acting as Shareholders’ Representative, other than in the amounts payable hereunder to any Selling Party being distributed case of fraud, gross negligence or willful misconduct, provided that the Shareholders’ Representative has acted in any manner other than as permitted pursuant to compliance with this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Share Purchase Agreement (Marrone Bio Innovations Inc)
Shareholders’ Representative. (a) The Selling PartiesPerson identified on Company Schedule 13.15(a) (such Person, by adopting the “Shareholders’ Representative”) is hereby appointed as the representative of the shareholders of the Company to act on behalf of such shareholders with respect to the matters identified in this Agreement, and the Shareholders’ Representative has accepted the appointment as the Shareholders’ Representative pursuant to the execution and delivery to Guaranty and the Company of a Consent to Appointment dated as of the date of this Agreement.
(b) By approving this Agreement and the transactions contemplated herebyhereby or by executing the Transmittal Materials, hereby irrevocably appoint each holder of Company Stock shall have irrevocably: (a) authorized and constitute K Laser as appointed the Shareholders’ Representative for and as such shareholder’s representative to act on behalf of the Selling Partiesshareholder with respect to the matters set forth in this Agreement; and (b) agreed that the Shareholders’ Representative shall not be liable, with responsible or accountable in damages or otherwise to the authority (i) Company or any shareholders of the Company for any Liabilities incurred by reason of any error in judgment or any act or failure to perform act arising out of the obligations activities of the Shareholders’ Representative set forth on behalf or in respect of the shareholders of the Company, including: (i) the failure to perform any acts he or she is not expressly obligated to perform under this Agreement and the Option Agreement, ; (ii) any acts or failures to give and receive notices and communicationsact made in good faith or on the advice of legal counsel, accountants or other consultants to the Shareholders’ Representative; or (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in matter beyond the judgment control of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from , and the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable receive compensation for his services contemplated by this Agreement. If at any act done or omitted hereunder as time the Shareholders’ Representative while acting ceases to serve in good faith and without negligence and any act done such capacity due to his resignation, death or omitted pursuant to disability, the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest resulting vacancy in the shares position of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken be filled by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesPersons (or their heirs or successors) that held immediately prior to Closing a majority of the shares of Company Stock.
Appears in 1 contract
Sources: Merger Agreement (Guaranty Bancorp)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement Mr. ▇▇▇ ▇▇▇▇ ▇▇▇▇ shall be constituted and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser appointed as the Shareholders’ Representative agent for and on behalf of the Selling Partiesall Shareholders as their attorney-in-fact and representative, with the authority (i) to perform do any and all things and to execute any and all documents or other papers, in each such Shareholder’s name, place and stead, in any way in which each such Shareholder could do if personally present, in connection with this Agreement and the obligations applicable Transaction Documents and the transactions contemplated hereby and thereby, and (ii) to amend, cancel or extend, or waive the terms of, this Agreement and any of the Transaction Documents in a manner that would not disproportionately affect such Shareholder as compared to the other Shareholders, The power of attorney granted hereby is coupled with an interest. The Shareholders shall be bound by all actions taken and documents executed by the Shareholders’ Representative set forth in this Agreement pursuant hereto, and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond Investor shall be required entitled to rely on any action or decision of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall may, by giving not be liable for any act done or omitted hereunder less than thirty (30) days written notice to the other Parties, resign as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to under this Agreement. In the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify event that the Shareholders’ Representative becomes unable or unwilling to continue in his capacity as the Shareholders’ Representative under this Agreement, the Shareholders shall (by majority-in-interest) promptly appoint a successor Shareholders’ Representative by written notice to the Investor, and the appointment of such successor Shareholders’ Representative shall become effective only upon the Investor’s receipt of such written notice. Each Shareholder hereby agrees that any successor Shareholders’ Representative so selected by such Shareholder shall be entitled to act as such under this Agreement on behalf of such Shareholder. All references herein to the Shareholders’ Representative shall include any such successor Shareholders’ Representative. Except as otherwise expressly set forth herein, each Shareholder hereby consents to the taking by the Shareholders’ Representative of any and all actions and the making of any decisions required or permitted to be taken by such Shareholders under this Agreement. The Shareholders shall be bound by all actions taken by the Shareholders’ Representative in his capacity as the Shareholders’ Representative.
(c) In performing the functions specified in this Agreement, the Shareholders’ Representative shall not be liable to any Shareholder in the absence of gross negligence or willful misconduct on the part of the Shareholders’ Representative. Each Shareholder shall severally and not jointly, indemnify and hold it harmless the Shareholders’ Representative from and against any loss, liability or expense incurred without gross negligence or bad faith willful misconduct on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur , including any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements out-of-pocket costs and opinions prepared or presented by counsel or expenses and legal fees and other professionals retained by it, and any action taken legal costs reasonably incurred by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithRepresentative.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Shareholder Agreement (China BCT Pharmacy Group, Inc.)
Shareholders’ Representative. (a) The Selling PartiesBy virtue of their approval of this Agreement, by adopting this Agreement the Shareholders will be deemed to have irrevocably constituted and appointed, effective as of the Closing, Yag Pate▇ (▇▇e "Shareholder Representative"), as their true and lawful agent and attorney-in-fact to enter into any agreement in connection with the transactions contemplated herebyby the Escrow Agreement, hereby irrevocably appoint including, without limitation, entering into the Escrow Agreement and constitute K Laser as the Shareholders’ Representative for and exercising on behalf of the Selling Parties, with the authority (i) to perform the obligations Shareholders all or any of the Shareholders’ Representative set forth in this Agreement powers, authority, rights and discretion conferred on them under or the Option Escrow Agreement, including without limitation waiving any terms and conditions of any such agreement (ii) to give other than the payment of the Escrow Fund), giving and receive receiving notices and communications, (iii) authorizing delivery to agree Parent of the Escrow Fund or other property from the Escrow Fund in satisfaction of claims by Parent, objecting to such deliveries, agreeing to, negotiatenegotiating, enter entering into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscomprises of, and incur any other reasonable expenses, in connection withdemanding arbitration and complying with orders of courts and awards of arbitrators with respect to such claims, and to take taking all actions necessary or appropriate in the judgment of the Shareholders’ Shareholder Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Shareholder Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Shareholder Representative while acting in good faith and without negligence in the exercise of reasonable judgment. This power of attorney is coupled with an interest and any act done is irrevocable. Notices or omitted pursuant communications to or from the advice Shareholder Representative shall constitute notice to or from the Shareholders. A decision, act, consent or instruction of counsel the Shareholder Representative shall be final, binding and conclusive evidence upon the Shareholders, and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of such good faith and absence the Shareholder Representative as being the decision, act, consent or instruction of negligencethe Shareholders. The Selling Parties 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.
(b) In the event that the Merger is approved by the Shareholders, effective upon such vote, and without further act of any Shareholder, the Shareholders shall agree, severally (and not jointly), according to each Selling Parties’ pro-on a pro rata interest basis based on their proportionate ownership interests in the shares of EverestCompany, indemnify the Shareholders’ Representative to indemnify, defend and hold it the Shareholder Representative harmless from and against any loss, damage, tax, liability or and expense that may be incurred without gross negligence or bad faith on by the part of the Shareholders’ Shareholder Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision the Shareholder Representative's duties, except as caused by the Shareholder Representative's gross negligence or willful misconduct, including the legal costs and expenses of this Agreement shall require the Shareholders’ defending such Shareholder Representative to expend against any claim or risk its own funds or otherwise incur any financial liability in connection with the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithShareholder Representative's duties.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Merger Agreement (Xcarenet Inc)
Shareholders’ Representative. (aA) The Selling Parties, by adopting this Agreement and Each of the transactions contemplated hereby, Shareholders hereby irrevocably appoint constitutes and constitute K Laser appoints ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III, and ▇▇. ▇▇▇▇▇▇ hereby accepts such appointment, as their agent and attorney-in-fact with full power of substitution and revocation to do any and all things and execute any and all documents on his or her behalf which may be necessary, convenient or appropriate with respect to: (i) amendments to this Agreement, provided that no amendment shall materially adversely affect the rights of any one Shareholder relative to any other Shareholders’ Representative for ; (ii) the execution of documents and on behalf certificates pursuant to this Agreement; (iii) determination of the Selling Parties, with the authority Working Capital Adjustment; (iv) receipt and forwarding of notices and communications pursuant to this Agreement; and (v) negotiation and compromise of any indemnity claims made by Buyer hereunder. The Shareholders Representative is authorized (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions which the Shareholders Representative considers necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or desirable in connection with the acceptance defense, pursuit or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance settlement of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision determinations relating to the contrary set forth in this Agreement or the Option Agreementmatters described above, the Shareholders’ Representative shall only have the power or authority including to act with respect to matters pertaining to the Selling Parties as a group ▇▇▇, defend, negotiate, settle and not matters pertaining to an individual Selling Party (compromise any such claims for example but not indemnification made by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party Buyer pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), agreements or transactions contemplated hereby; (ii) to engage and employ agents and representatives (including accoutants, legal counsel and other professionals) and to incur such other expenses as he shall deem necessary or prudent in connection with the administration of the foregoing; and (iii) to take all other actions and exercise all other rights which the Shareholders Representative (in his sole discretion) considers necessary or appropriate in connection with the foregoing. Notwithstanding anything to the contrary contained in this Agreement, the Shareholders Representative shall have no duties or responsibilities except as expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Shareholder shall otherwise exist against the Shareholders Representative.
(B) The Buyer and DBI shall be fully protected in dealing with ▇▇. ▇▇▇▇▇▇ under this Section 8.1(c)Agreement and may rely upon the authority of ▇▇. ▇▇▇▇▇▇ to act as the Shareholders Representative. The Shareholders Representative is authorized to act on the Shareholders' behalf notwithstanding any dispute or disagreement among the Shareholders. The appointment of ▇▇. ▇▇▇▇▇▇ is coupled with an interest and is irrevocable by any Shareholder in any manner or for any reason, without first obtaining unless written revocation is personally delivered to ▇▇. ▇▇▇▇▇▇ and the Buyer on or prior written approval to the time that action on behalf of the Selling PartiesShareholders is taken or payments or deliveries are made, in which case such revocation shall only apply to actions taken or proposed to be taken after receipt of such notice. This power of attorney shall not be affected by the death, disability or incapacity of any Shareholder.
(C) If at any time there is no person acting as Shareholders Representative for any reason, the Shareholders holding a majority interest in the Retained Stock shall choose a person to act as Shareholders Representative under this Agreement.
(D) Neither the Shareholders Representative nor any agent employed by him shall be liable to any Shareholder relating to the performance of his 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 Shareholders Representative constituted fraud or were taken or not taken in bad faith. The Shareholders Representative shall be indemnified and held harmless by the Shareholders against all costs, expenses and damages paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholders Representative is made a party by reason of the fact that he was acting as the Shareholders Representative pursuant to this Agreement; provided, however, that the Shareholders 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 Shareholders Representative constituted fraud or were taken or not taken in bad faith. The Shareholders Representative shall be protected in acting upon any notice, statement or certificate believed by him 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.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement Company and the transactions contemplated hereby, its shareholders party hereto hereby irrevocably constitute and appoint and constitute K Laser TC Group VI, L.P., as the Shareholders’ Representative and as the true and lawful agent and attorney-in-fact of such holders of Company Common Shares and Options with full power and authority to act, including full power of substitution, in their name and on their behalf with respect to all matters arising from or in any way relating to this Agreement and the Transactions contemplated hereby and thereby, to:
(i) represent, act for and on behalf of, and bind each of such holders of Company Common Shares and Options in the Selling Partiesperformance of all of their obligations arising from or relating to this Agreement, with including the authority (i) execution and delivery of any certificate or document required under this Agreement to perform the obligations of be delivered by the Shareholders’ Representative at the Closing;
(ii) give and receive notices and receive service of process under or pursuant to this Agreement and the other Transaction Documents;
(iii) waive any conditions to Parent and Merger Sub’s obligation to close pursuant to Section 6.3;
(iv) address claims for indemnification pursuant to Article VIII;
(v) give and receive notices and communications in respect of indemnification claims under this Agreement to be recovered against the Indemnification Escrow Funds and authorize payment to any Parent Indemnitee from the Indemnification Escrow Funds in satisfaction of any indemnification claims hereunder by any Parent Indemnitee;
(vi) amend this Agreement pursuant to Section 9.3; and
(vii) perform any and all other duties and acts contemplated to be performed by the Shareholders’ Representative as set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formTransaction Documents.
(b) The Company hereby agrees that for any action arising under this Agreement relating to the holders of Company Common Shares and Options, such holders of Company Common Shares and Options may be served legal process by registered mail to the address of the Shareholders’ Representative shall not be liable for any act done or omitted hereunder to such other address as the Shareholders’ Representative while acting may from time to time give written notice to Parent, and that service in good faith and without negligence and any act done or omitted pursuant to the advice of counsel such manner shall be conclusive evidence adequate and sufficient in all respects for any legal purpose, and that such holders of Company Common Shares or Options will raise no defense or claim in any court in any jurisdiction that service in such good faith manner was not adequate or sufficient. This appointment of agency and absence this power of negligence. The Selling Parties attorney is coupled with an interest and shall severally (be irrevocable and shall not jointly)be terminated by the holders of Company Common Shares and Options or by operation of law, according to each Selling Parties’ pro-rata interest in whether by the shares of Everestdissolution, indemnify liquidation or bankruptcy or any company, partnership or other entity or the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance occurrence of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by itevent, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to as valid as if such death, incapacity, termination, dissolution, liquidation, bankruptcy or other event had not occurred, regardless of whether or not the Shareholders’ Representative shall have been taken in good faithreceived any notice thereof. The Shareholders’ Representative hereby accepts such appointment.
(c) Notwithstanding Any decision, act, consent or instruction of the foregoing provisions Shareholders’ Representative shall constitute a decision of such holders of Company Common Shares and Options and shall be conclusive and binding upon such holders of Company Common Shares and Options, and Parent may rely upon any such decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of such holders of Company Common Shares and Options. The Shareholders’ Representative cannot be changed or substituted without the prior written consent of a majority of the holders of Company Common Shares and Options and such change or substitution of the Shareholders’ Representative shall not be effective until Parent receives written notice thereof.
(d) At Closing, pursuant to Section 2.2(b), Parent will deposit the Shareholders’ Representative Expense Amount into the Shareholders’ Representative Expense Account, as a fund for any payments or distribution to any Person (as determined in this ARTICLE VIIIthe reasonable discretion of the Shareholders’ Representative) (each, a “Payment” and collectively, the “Payments”) and the costs, fees, expenses (including legal fees and expenses) and liabilities of the Shareholders’ Representative incurred (or any provision reasonably expected to be incurred) on behalf of or for the contrary set forth benefit of the Former Holders on or after the Closing Date in connection with this Agreement or any other Transaction Document (including the Option liabilities described in this Section 9.13). The Shareholders’ Representative shall have the sole discretion to withdraw funds from the Shareholders’ Representative Expense Amount at any time (and without prior notice to any Person) to fund a Payment and/or the costs, fees and expenses (including legal fees and expenses) that it incurs on behalf of the Former Holders. In the event that the Shareholders’ Representative Expense Amount is exhausted or shall be insufficient to satisfy such Payment and/or such costs, fees and expenses of the Shareholders’ Representative, the Shareholders’ Representative shall, at its election, be entitled to either recover (on a dollar for dollar basis) any such expenses or other losses directly from the Former Holders (on a several basis (and not joint and several basis) based on such Former Holder’s Allocable Share) or be reimbursed for any such costs, fees, expenses or losses out of any amounts otherwise being distributed to the Former Holders out of the Shareholders’ Representative Expense Account in accordance with the terms of the Paying Agent Agreement. On the later to occur of (i) the date that the Shareholders’ Representative determines in its sole discretion that it will not make any Payments and/or incur any further costs, fees, expenses or losses in his capacity as Shareholders’ Representative and (ii) the second anniversary of the Effective Time, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way distribute any remaining portion of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in Expense Amount (such amount the Option Agreement shall not authorize or empower the “Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option AgreementRemainder Amount”) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesFormer Holders based on such Former Holder’s Allocable Share.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting By virtue of the adoption of this Agreement and the transactions contemplated hereby, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Company Securityholder shall be deemed to have appointed the designation of, and hereby irrevocably appoint and constitute K Laser designates, Shareholder Representative Services LLC as the Shareholders’ Representative for and on behalf of the Selling Parties, all purposes in connection with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreementagreements ancillary hereto, including, but not limited to, (iii) to give and receive notices and communicationscommunications to Purchaser for any purpose under this Agreement and the Additional Agreements, (iiiii) to agree to, negotiate, enter into settlements and provide amendments compromises of and supplements demand arbitration and comply with orders of courts and awards of arbitrators with respect to any indemnification claims (including Third-Party Claims) under Section 11.1 or, following the Closing, other disputes arising under or related to this Agreement, (iii) to enter into and waivers in respect deliver the Escrow Agreement on behalf of this Agreement and each of the Option AgreementCompany Securityholders, (iv) to retain legal counselauthorize or object to delivery to Purchaser of the Escrow Fund, accountantsor any portion thereof, consultants in satisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow Agreement, (v) to act on behalf of Company Securityholders in accordance with the provisions of the Agreement, the securities described herein and other experts, and incur any other reasonable expenses, document or instrument executed in connection with, with the Agreement and the Merger and (vi) to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the The Shareholders’ RepresentativeRepresentative may resign at any time. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Company Securityholders from time to time upon not no less than ten twenty (1020) days’ days prior written notice to all the Purchaser, provided, however, that the Shareholders’ Representative may not be removed unless holders of a majority of the Selling Parties shares of Company Capital Stock (on an as converted to Ordinary Shares and Ordinary A Shares basis) outstanding immediately prior to Parent the Effective Time agree to such removal. Any vacancy in the position of Shareholders’ Representative may be filled by approval of the holders of a majority of the shares of Company Capital Stock (on an as converted to Ordinary Shares and PurchaserOrdinary A Shares basis) outstanding immediately prior to the Effective Time. No bond shall be required of the Shareholders’ Representative. Notices The Shareholders’ Representative will incur no liability of any kind with respect to any action or communications to or from omission by the Shareholders’ Representative in connection with the Shareholders’ Representative’s services pursuant to Parent shall constitute notice to or from each of the Selling Partiesthis Agreement and any agreements ancillary hereto, except for notices related to any action for which in the Selling Parties’ consent is required under the terms event of this Agreement or applicable law. Each Selling Party agrees to receive correspondence liability directly resulting from the Shareholders’ Representative, including in electronic form.
(b) ’s gross negligence or willful misconduct. The Shareholders’ Representative shall not be liable for any act done action or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted omission pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencecounsel. The Selling Parties shall severally (Company Securityholders will indemnify, defend and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify hold harmless the Shareholders’ Representative from and hold it harmless against any lossand all losses, liability or liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense incurred without gross negligence or bad faith on the part of the Shareholders’ document location, duplication and shipment) (collectively, “Representative and Losses”) arising out of or in connection with the acceptance or administration of his duties hereunder. No provision Shareholders’ Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that Representative Losses shall require not include costs (other than third party expenses) incurred by the Shareholders’ Representative in the ordinary course of business of the Shareholders’ Representative under the engagement letter entered into by the Shareholders’ Representative, the Company, and certain of the Company Securityholders; provided, further, 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 Shareholders’ Representative, the Shareholders’ Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Company Securityholders, any such Representative Losses may be recovered by the Shareholders’ Representative from (x) the funds in the Expense Fund, and (y) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Company Securityholders; provided, that while this section allows the Shareholders’ Representative to expend be paid from the aforementioned sources of funds, this does not relieve the Company Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powersincurred, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by nor does it prevent the Shareholders’ Representative based on such reliance shall be deemed conclusively from seeking any remedies available to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, it at law or any provision to the contrary set forth in this Agreement or the Option Agreement, otherwise. In no event will the Shareholders’ Representative shall only have be required to advance its own funds on behalf of the power Company Securityholders or authority to act with respect to matters pertaining otherwise. Notwithstanding anything in this Agreement to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitationcontrary, an action any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against an individual Selling Party for hisnon-parties otherwise applicable to, her or its individual breach of a covenant the Company Securityholders set forth elsewhere in this Agreement), and Agreement are not intended to be applicable to the powers conferred on indemnities provided to the Shareholders’ Representative herein and in under this section. The foregoing indemnities will survive the Option Agreement shall not authorize Closing, the resignation or empower removal of the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision the termination of this Agreement Agreement. Upon the Closing, the Company will wire US$30,000 (the “Expense Fund”) to the Shareholders’ Representative, which will be used for the purposes of paying directly, or reimbursing the Option Agreement) that (i) results in the amounts payable hereunder to Shareholders’ Representative for, any Selling Party being distributed in any manner other than as permitted third party expenses pursuant to this Agreement and the Option Agreement, (ii) alters agreements ancillary hereto. The Company Securityholders will not receive any interest or earnings on the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change Expense Fund and irrevocably transfer and assign to the nature Shareholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Shareholders’ Representative will not be liable for any loss of principal of the indemnity obligations)Expense Fund other than as a result of its gross negligence or willful misconduct. The Shareholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in each case with respect to clauses (i), (ii) and (iii) the event of this Section 8.1(c), without first obtaining bankruptcy. As soon as practicable following the prior written approval completion of the Selling PartiesShareholders’ Representative’s responsibilities, the Shareholders’ Representative will deliver any remaining balance of the Expense Fund to the Company. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company at the time of Closing.
Appears in 1 contract
Sources: Merger Agreement (Chardan Healthcare Acquisition Corp.)
Shareholders’ Representative. (a) The Selling PartiesShareholders irrevocably nominate, by adopting this Agreement constitute and appoint ▇▇▇▇▇ ▇. ▇▇▇▇▇ as their representative (the transactions contemplated hereby"Shareholders' Representative"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇ hereby irrevocably appoint and constitute K Laser accepts his appointment as the Shareholders’ ' Representative. Purchaser shall be entitled to deal exclusively with the Shareholders' Representative for on all matters relating to this Agreement or any other Transaction Document, 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 by the Selling PartiesShareholders' Representative, with the authority (i) as fully binding upon such Shareholder; provided, that in respect of indemnification claims under this Article VIII that relate to perform the obligations one or more Shareholders, but not all of the Shareholders’ , Purchaser shall deal with the Shareholder or Shareholders subject to the indemnification claims and may not rely solely on actions taken by the Shareholders' Representative. If the Shareholders' Representative set forth in this Agreement and shall die, become disabled or otherwise be unable to fulfill his responsibilities as representative of the Option AgreementShareholders, (ii) to give and receive notices and communicationsthe Shareholders shall, (iii) to agree towithin twenty days after such death or disability, negotiateappoint a successor representative and, enter into and provide amendments and supplements to and waivers in respect promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the "Shareholders' Representative" for purposes of this Agreement and the Option Agreementother Transaction Documents. If for any reason there is no Shareholders' Representative at any time, (iv) to retain legal counsel, accountants, consultants and other experts, and incur all references herein or in any other reasonable expenses, in connection with, and Transaction Document to take all actions necessary or appropriate in the judgment of the Shareholders’ ' Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as shall be deemed to refer to the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders agree that the actions taken by the Shareholders’ ' Representative pursuant to the terms of this Section 8.10 shall be fully binding on them. The Shareholders' Representatives shall not be liable to any Shareholder or any other party for any act done action taken or omitted hereunder to be taken by him as a Shareholders' Representative except in the Shareholders’ Representative while acting in good faith and without negligence and any act done case of willful misconduct or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of gross negligence. The Selling Parties Shareholders shall severally (and not jointly), according to jointly indemnify each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ ' Representative and hold it harmless from and against any loss, liability or expense of any nature incurred without gross negligence by such Shareholders' Representative, including reasonable legal fees and other costs and expenses of defending or bad faith on the part of the Shareholders’ Representative and arising out of preparing to defend against any claim or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise premises, unless such loss, liability or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance expense shall be deemed conclusively to have been taken in good faithcaused by such Shareholders' Representative's willful misconduct or gross negligence.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. 10.6.1 Except as otherwise provided in this Agreement, any right or action that may be taken at the election of the Shareholders will be taken by a representative of the Shareholders (athe “Shareholders’ Representative”) on behalf thereof. The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the initial Shareholders’ Representative for and on behalf of the Selling Partieswill be ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇. Upon his resignation, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest voting power of the Selling Parties from Company Securities at the time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Closing may designate a successor Shareholders’ Representative. Notices or communications to or from Any change in the Shareholders’ Representative to Parent shall constitute will become effective upon notice to or in accordance with Section 10.2. The Shareholders will indemnify and hold the Purchaser Indemnified Parties and their representatives harmless from each any claim of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms Shareholder arising out of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as omission by the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance transactions contemplated by this Agreement.
10.6.2 Except as otherwise provided in this Agreement, any right or administration action that may be taken at the election of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action Shareholders will be taken by the Shareholders’ Representative based on behalf thereof. Each of the Shareholders hereby irrevocably appoints the Shareholders’ Representative, the agent and attorney‑in‑fact of each of the Shareholders for the purposes of acting in the name and stead of such reliance shall Shareholder in: (a) receiving, holding, directing the distribution and distributing the Transaction Consideration and paying any associated costs and expenses of the transactions hereunder required to be deemed conclusively to have been taken in good faith.
paid by such Shareholder; (b) giving and receiving all notices permitted or required by this Agreement and acting on Shareholders’ behalf hereunder for all purposes specified herein; (c) Notwithstanding delivering the foregoing provisions in this ARTICLE VIII, certificates or any provision instruments of transfer for the Shares endorsed or executed by Shareholders to the contrary set forth Purchaser at Closing and any and all assignments relating thereto; (d) agreeing with the Purchaser as to any final changes to this Agreement from the version that the Shareholders received and any amendments to this Agreement which the Shareholders’ Representative may deem necessary or advisable, including the extension of time in which to consummate the transactions contemplated by this Agreement, and the waiver of any closing conditions; (e) employing legal counsel; (f) paying any legal and any other fees and expenses incurred by the Shareholders’ Representative in consummating the transactions contemplated by this Agreement; (g) defending or settling claims arising under this Agreement or the Option Escrow Agreement; and (h) making, executing, acknowledging, and delivering all such contracts, orders, receipts, notices, requests, instructions, certificates, letters, and other writings, and in general doing all things and taking all actions which the Shareholders’ Representative, in its sole discretion, may consider necessary or proper in connection with or to carry out the terms of this Agreement, as fully as if such Shareholders were personally present and acting. This power of attorney and all authority conferred hereby is granted and conferred subject to the interests of the other Parties to this Agreement, and in consideration of those interests and for the purpose of completing the transactions contemplated hereby, this power of attorney and all authority conferred hereby shall be irrevocable and shall not be terminated by Shareholders or by operation of Law, whether by the termination of the Shareholders’ Representative shall only have or by the power occurrence of any other event. If any Shareholder should die or authority become incompetent or incapacitated, or any other event should occur before the delivery of certificates or other instruments of transfer representing the Shares pursuant to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), such certificates and instruments shall be delivered by or on behalf of such Shareholder in accordance with the terms and conditions of this Agreement, and the powers conferred on all actions taken by the Shareholders’ Representative herein and in the Option pursuant to this Agreement shall be as valid as if such death, incompetence, or incapacity or other event had not authorize occurred, regardless of whether the Purchaser or empower the Shareholders’ Representative, or any of them, shall have received notice of such death, incompetence, incapacity, or other event. The Shareholders’ Representative will be promptly reimbursed by the Shareholders for all reasonable expenses, disbursements and advances incurred by the Shareholders’ Representative in such capacity upon demand. The Shareholders jointly and severally agree to do or cause to be done indemnify and hold harmless Shareholders’ Representatives for and from any action (including by amendingloss, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreementliability, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreementexpense, or (iii) adds to or results in an increase of any Selling Party’s indemnity charge, damages, claims or other obligations it may incur as a result of its duties hereunder or liabilities under this Agreement (includingany of its actions or inactions as such, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesexcept as may result from its willful misconduct or gross negligence.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement Shareholders' Representative shall be constituted and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser appointed as the Shareholders’ Representative agent for and on behalf of the Selling Parties, with the authority (i) Target shareholders to perform the obligations of take any and all actions required or permitted to be taken by the Shareholders’ ' Representative set forth in with respect to any claims made by an Acquiror Indemnified Party pursuant to this Agreement and the Option AgreementSection 8, (ii) including to give and receive notices and communications, (iii) to authorize delivery to Acquiror of the Acquiror Common Stock or other property from the Escrow Fund in satisfaction of claims by Acquiror, to object to such deliveries, to make claims on behalf of the Target shareholders, to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expenses, in connection withdemand arbitration and comply with orders of courts and 50 awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholders’ ' Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Escrow Fund from time to time upon not less than ten (10) 10 days’ ' prior written notice to all of the Selling Parties and to Parent and PurchaserAcquiror. No bond shall be required of the Shareholders’ ' Representative, and the Shareholders' Representative shall receive no compensation for his services. Notices or communications to or from the Shareholders’ ' Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formTarget shareholders.
(b) The Shareholders’ ' Representative shall provide written notice to the Target shareholders of any material action taken on behalf of them by the Shareholders' Representative pursuant to the authority delegated to the Shareholders' Representative under this Section 8. The Shareholders' Representative shall not be liable to any person for any act done error of judgment, or any action taken, suffered or omitted hereunder to be taken under this Agreement (including Section 5.13) or the Escrow Agreement, except in the case of its gross negligence, bad faith or willful misconduct. The Shareholders' Representative may consult with legal counsel, independent public accountants and other experts selected by it. The Shareholders' Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the Escrow Agreement. As to any matters not expressly provided for in this Agreement or the Escrow Agreement, the Shareholders’ ' Representative while acting in good faith shall not exercise any discretion or take any action. Each Target shareholder shall indemnify and without negligence hold harmless and reimburse the Stockholders' Representative from and against such Target shareholders' ratable share of any act done and all liabilities, losses, damages, claims, costs or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify expenses suffered or incurred by the Shareholders’ ' Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and resulting from any action taken or omitted to be taken by the Shareholders’ ' Representative based on under this Agreement (including Section 5.13) or the Escrow Agreement, other than such reliance shall be deemed conclusively to have been taken in good faithliabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Shareholders' Representative's gross negligence, bad faith or willful misconduct.
(c) Notwithstanding The Shareholders' Representative shall have reasonable access to information about Target and the foregoing provisions in this ARTICLE VIIIreasonable assistance of Target's officers and employees for purposes of performing his duties and exercising his rights hereunder, or any provision to the contrary set forth in this Agreement or the Option Agreement, provided that the Shareholders’ ' Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group treat confidentially and not matters pertaining disclose any nonpublic information from or about Target to an individual Selling Party anyone (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of except on a covenant in this Agreementneed to know basis to individuals who agree to treat such information confidentially), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesEffective upon the execution of this Agreement, by adopting this Agreement and the transactions contemplated hereby, ▇▇▇ ▇▇▇▇▇▇ is hereby irrevocably appoint and constitute K Laser appointed as the agent and attorney-in-fact (the “Shareholders’ Representative”) for each Shareholder. The Shareholders’ Representative shall be authorized, for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of all the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into settlements and provide amendments compromises of, and supplements demand arbitration and comply with orders of courts and awards of arbitrators with respect to and waivers in respect of claims for indemnification under this Agreement and the Option Agreement, (iv) to retain legal counselauthorize payment to or from the claims of Ducommun with regard to the Purchase Price Adjustment and/or any claims for indemnification under this Agreement, accountants, consultants and other experts, and incur any other reasonable expenses, in connection withincluding but not limited to the authorization to reduce the amount due under the Promissory Note, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of to accomplish the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall not receive compensation for his services. All of the expenses of the Shareholders’ Representative shall be borne by the Shareholders on a pro rata basis. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related Shareholders. The Shareholders’ Representative may be changed to any action for which another Principal Shareholder by the Selling Partiesvote of a majority of the members of the Board of Directors of Miltec as of the day prior to the Closing Date whereupon the new Shareholders’ consent is required under Representative shall give at least ten (10) days prior notice to Ducommun of his or her becoming the terms new Shareholders’ Representative and the removal of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the old Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder in its capacity as the Shareholders’ Representative while acting in good faith and without negligence and any act done in the exercise of reasonable judgment or omitted pursuant to upon the advice of counsel shall be conclusive evidence of such good faith and absence of negligencelegal counsel. The Selling Parties Shareholders shall jointly and severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative harmless against any losses incurred by the Shareholders’ Representative (including reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative) arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend Representative’s duties hereunder unless such losses directly result from the gross negligence, willful misconduct or risk its own funds or otherwise incur any financial liability in the exercise or performance bad faith of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithRepresentative.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIIIAny decision, act, consent or any provision to the contrary set forth in this Agreement or the Option Agreement, instruction of the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as constitute a group and not matters pertaining to an individual Selling Party (for example but not by way decision of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)all Shareholders, and the powers conferred on shall be final, binding and conclusive upon each of such Shareholder, and Ducommun may rely upon any such decision, act, consent or instruction of the Shareholders’ Representative herein as being the decision, act, consent or instruction of each and every such Shareholder. Ducommun is hereby relieved from any Liability to any person for any acts done by it in the Option Agreement shall not authorize accordance with such decision, act, consent or empower instruction of the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesRepresentative.
Appears in 1 contract
Sources: Merger Agreement (Ducommun Inc /De/)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Shareholders hereby irrevocably appoint and constitute K Laser ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., a Shareholder, to serve as the Shareholders’ Representative for and on behalf representative of all of the Selling Parties, with Shareholders from and after the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect date of this Agreement and (the Option Agreement"Shareholders' Representative"). EACH SHAREHOLDER HEREBY AUTHORIZES THE SHAREHOLDERS' REPRESENTATIVE TO ACT AS ATTORNEY- IN-FACT ON BEHALF OF SUCH SHAREHOLDER WITH RESPECT TO ANY ACT REQUIRED OR PERMITTED TO BE TAKEN BY SUCH SHAREHOLDER HEREUNDER (INCLUDING, (iv) WITHOUT LIMITATION, TO SPECIFY THE MANNER OF MAKING PAYMENT TO SUCH SHAREHOLDER HEREUNDER OR TO RECEIVE ANY FUNDS TO BE PAID BY OR ON BEHALF OF BUYER TO SUCH SHAREHOLDERS HEREUNDER). WITH RESPECT TO ANY DISPUTE THAT MAY ARISE HEREUNDER OR UNDER ANY RELATED AGREEMENT, EACH SHAREHOLDER AGREES THAT HE OR SHE MAY ACT ONLY THROUGH THE SHAREHOLDERS' REPRESENTATIVE. Any Party hereto shall be entitled to retain legal counsel, accountants, consultants and other expertsrely, and incur any other reasonable expensesshall be fully protected in relying, in connection with, and to take upon all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ ' Representative. The Shareholders' Representative may not be changed without the consent of Purchaser, except as provided in the next sentence. In the event of the death of the Shareholder' Representative, the Shareholders shall promptly irrevocably appoint by a majority vote of the Shareholders (based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision stock ownership immediately prior to the contrary set forth in this Agreement Closing) one of the remaining Shareholders (or the Option Agreement, beneficial owners of Shareholders that are entities) who is a natural person to act as the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties' Representative.
Appears in 1 contract
Sources: Stock Purchase Agreement (Gulf Island Fabrication Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting Company Shareholders hereby designate ▇▇▇▇▇ ▇▇▇▇▇ to serve as the Shareholders’ Representative as provided herein. By signing this Agreement and in the transactions contemplated herebycapacity of Shareholders’ Representative, the Shareholders’ Representative hereby irrevocably appoint and constitute K Laser accepts the appointment as the Shareholders’ Representative for purposes of this Agreement.
(b) Each Company Shareholder, by the execution of this Agreement, hereby irrevocably appoints the Shareholders’ Representative as the representative, proxy and on behalf attorney-in-fact (with full power of substitution) for such Company Shareholder for the Selling Parties, with limited purposes of carrying out the authority (i) to perform the obligations express duties of the Shareholders’ Representative set forth in under this Agreement. Within the scope of that limited purpose, each Company Shareholder grants the Shareholders’ Representative the full and exclusive power and authority to represent and bind such Company Shareholder with respect to all matters related to, arising under or pursuant to the express duties of the Shareholders’ Representative under this Agreement (including the taking by the Shareholders’ Representative of any and all actions and the Option Agreementmaking of any decisions required or permitted to be taken on such Company Shareholder’s behalf), including without limitation: (i) to terminate this Agreement in accordance with the provisions of Article X; (ii) to give and receive notices and communicationsbring, defend and/or resolve any claim made or threatened pursuant to Article IX; (iii) to agree to, negotiate, enter into settle, adjust or compromise any such claims, bring suit or seek arbitration with respect to any such claims, and provide amendments comply with orders of courts and supplements awards of arbitrators with respect to and waivers in respect of this Agreement and the Option Agreement, any such claims; (iv) to retain legal counselact on behalf of such Company Shareholder in any dispute, accountantsclaim, consultants litigation or arbitration that in the judgment of the Shareholders’ Representative may result in a claim pursuant to Article IX hereof; (v) to agree to the defense of any Third Party Claim by the Company Shareholders pursuant to Article IX hereof; and other experts, and incur any other reasonable expenses, in connection with, and (vi) to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment ofof the foregoing. A decision, act, consent or instruction of the Shareholders’ Representative as to any of the foregoing matters shall constitute a decision of all of Company Shareholders and shall be final, binding and conclusive on each Company Shareholder. Parent may rely upon such decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of every Company Shareholder. The Shareholders’ Representative, in its sole and absolute discretion, may, by written notice to Parent and the applicable Company Shareholders, decline to exercise the power and authority granted herein to act on behalf of and in the name of any Company Shareholder or all of the foregoingCompany Shareholders with respect to any or all matters specified in such written notice, without incurring any liability to any party to this Agreement in connection with or as a result of such declination. K Laser hereby accepts its appointment as EACH COMPANY SHAREHOLDER AGREES THAT SUCH AGENCY AND PROXY ARE COUPLED WITH AN INTEREST, ARE THEREFORE IRREVOCABLE WITHOUT THE CONSENT OF THE SHAREHOLDERS’ REPRESENTATIVE AND SHALL SURVIVE THE DEATH, INCAPACITY, OR BANKRUPTCY OF ANY COMPANY SHAREHOLDERS.
(c) Neither the Shareholders’ Representative. Such agency may Representative nor any agent employed by it shall incur any liability to any Company Shareholders relating to the performance of its duties hereunder for any error of judgment, or any action taken, suffered or omitted to be changed by the holders of a majority in interest taken on behalf of the shares Company Shareholders (or any of Everest them), except in the case of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required actual gross negligence or fraud of the Shareholders’ Representative. Notices The Shareholders’ Representative may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken or communications to or from suffered by the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to in accordance with the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall counsel.
(d) Each Company Shareholder hereby irrevocably agrees, severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the bear such Company Shareholders’ Representative and hold it harmless against Pro Rata Portion of any loss, liability or expense expense, including reasonable attorneys’ fees and expenses, incurred without gross negligence or bad faith fraud on the part of the Shareholders’ Representative and arising out of or Representative, in connection with the acceptance performance of its duties, or administration arising out of, or in connection with, any action or decision taken or made on behalf of his duties hereunder. No provision of this Agreement shall require any Company Shareholder by the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in within the exercise or performance scope of any of its powers, rights, the Shareholders’ Representative’s duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by itSection 1.10, and any action to be bound by all actions taken by the Shareholders’ Representative based on in its capacity as such reliance within the scope of the Shareholders’ Representative’s duties under this Section 1.10. The Company Shareholders hereby acknowledge and agree that loss, liability or expense, including reasonable attorneys’ fees and expenses, incurred by the Shareholders’ Representative, if any, (i) shall be deemed conclusively reimbursed from the Shareholders’ Representative Expense Amount, and (ii) from and after the time the Shareholders’ Representative Expense Amount has been reduced to have been taken zero, shall be reimbursed by each of the Company Shareholders in good faith.
(c) Notwithstanding accordance with the foregoing provisions in this ARTICLE VIIIrespective Pro Rata Portion attributable to such Company Shareholder’s shares of Company Capital Stock; provided, or any provision to the contrary set forth in this Agreement or the Option Agreementhowever, that the Shareholders’ Representative shall only have be entitled to withhold from any amounts released from the power or authority to act with respect to matters pertaining Escrow Assets to the Selling Parties as a group and Company Shareholders any amounts that are not matters pertaining to an individual Selling Party so reimbursed by Company Shareholders.
(for example but not by way e) Upon the death, disqualification or resignation of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Representative, a successor Shareholders’ Representative to do or cause to shall be done any action (including appointed by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature mutual written agreement of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesCompany Shareholders.
Appears in 1 contract
Sources: Stock Purchase Agreement (FusionStorm Global, Inc.)
Shareholders’ Representative. (a) The Selling Parties, rights of the Escrow Participants to receive disbursements from the Escrow Fund pursuant to the Escrow Agreement shall be subject to the right of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the “Shareholders’ Representative”) to take any and all actions and make any and all decisions required or permitted to be taken or made by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf under this Agreement or the Escrow Agreement, including the exercise of the Selling Parties, with the authority right to: (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, communications under Article 8 or the Escrow Agreement; (ii) authorize delivery to Parent of Parent Common Stock from the Escrow Fund in satisfaction of claims for indemnification made by Parent under Article 8; (iii) object to claims for indemnification made by Parent under Article 8; (iv) agree to, negotiate, enter into settlements and provide amendments compromises of and supplements comply with court orders with respect to and waivers in respect claims for indemnification made by Parent under Article 8; (v) undertake any defense of this Third-Party Claims; (vi) amend or waive the Escrow Agreement and the Option Agreement, (ivvii) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the good faith judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as The identity of the Shareholders’ Representative may be changed, and a successor Shareholders’ Representative may be appointed, from time to time (including in the event of the resignation or the death, disability or other incapacity of the Shareholders’ Representative. Such agency may be changed ) by ▇▇▇▇▇▇ Participants whose aggregate Escrow Participation Percentages exceed sixty percent (60%), and any such successor shall succeed the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) daysShareholders’ prior written notice to all of the Selling Parties and to Parent and PurchaserRepresentative as Shareholders’ Representative hereunder. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall be reimbursed for costs and expenses (including overhead expenses) incurred in such capacity from the Representative Reimbursement Amount. Notices From and after the Effective Time, a decision, act, consent or communications instruction of the Shareholders’ Representative shall be final, binding and conclusive upon each Escrow Participant.
(b) At the Closing, Parent shall make a cash payment to the Shareholders’ Representative, by wire transfer of immediately available funds to an account designated by the Shareholders’ Representative prior to the Closing Date, in the amount of $500,000 (the “Representative Reimbursement Amount”). The Representative Reimbursement Amount shall be held by the Shareholders’ Representative for reimbursement payable to the Shareholders’ Representative under this Section 9.1 (the “Representative Reimbursement Fund”). Parent and Merger Sub shall have no further obligation or from liability with respect to the Representative Reimbursement Amount other than payment of the same to the Shareholders’ Representative pursuant to this Section 9.1(b). Any portion of the Representative Reimbursement Fund that has not been utilized by the Shareholders’ Representative pursuant to the terms of this Agreement on or prior to the date specified by the Shareholders’ Representative on or after the Expiration Date, shall be paid by the Shareholders’ Representative to Parent shall constitute notice the Escrow Agent for distribution to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including Escrow Participants pro rata in electronic formaccordance with their respective Escrow Participation Percentages.
(bc) The Shareholders’ Representative shall not be liable for any act done liability, loss, damage, penalty, fine, cost or omitted hereunder as expense incurred without gross negligence by the Shareholders’ Representative while acting in good faith and without negligence in the exercise of its good faith judgment and arising out of or in connection with the acceptance or administration of its duties or the exercise of its rights hereunder (it being understood that any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith faith).
(d) The Shareholders’ Representative shall be entitled to deduct and absence of negligence. The Selling Parties shall severally (recover from any amounts payable to the Escrow Participants pursuant to this Agreement or the Escrow Agreement any costs and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify expenses reasonably incurred by the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action actions taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision pursuant to the contrary set forth in terms of this Agreement or the Option AgreementEscrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs), after the Representative Reimbursement Fund has been exhausted.
(e) From and after the Effective Time, Parent and the Surviving Corporation shall promptly afford to the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining reasonable access to the Selling Parties as a group books, records (including accountants’ work papers) and not matters pertaining to an individual Selling Party (for example but not by way employees of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), Parent and the powers conferred on Surviving Corporation to the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower extent reasonably determined by the Shareholders’ Representative to do be necessary to permit it to investigate or cause determine any matter relating to be done any action (including by amending, modifying i) its rights or waiving any provision obligations or the rights or obligations of the Escrow Participants under this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Escrow Agreement, or (iiiii) adds to the rights or results in an increase of obligations (under any Selling Party’s indemnity law or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature otherwise) of the indemnity obligations), in each case Escrow Participants with respect to clauses (i), (ii) and (iii) any period ending on or before the date of this Section 8.1(c)Agreement. Unless otherwise consented to in writing by the Shareholders’ Representative, neither Parent nor the Surviving Corporation shall, for a period of four years after the date of this Agreement, destroy, alter or otherwise dispose of any of the books and records of the Surviving Corporation relating in whole or in part to any period prior to the date of this Agreement without first obtaining offering to surrender to the prior Shareholders’ Representative such books and records or any portion thereof which Parent or the Surviving Corporation may intend to destroy, alter or otherwise dispose of.
(f) Parent may rely and shall be protected in acting, or refraining from acting, upon any written approval notice, instruction or request furnished to it hereunder or under the Escrow Agreement and reasonably believed by Parent to be genuine and to have been signed or presented by the Shareholders’ Representative as if such written notice, instruction or request had been furnished to it by all the Escrow Participants.
(g) Parent hereby consents to the retention by the Shareholders’ Representative of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP as counsel following the Selling PartiesClosing, notwithstanding that ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP has represented Company in connection with the transactions contemplated by this Agreement, including the negotiation of this Agreement, and waives any right Parent or the Surviving Corporation may have to object to such representation.
Appears in 1 contract
Sources: Merger Agreement
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and In order to administer efficiently the transactions contemplated hereby, including (i) the waiver of any condition to the obligations of the Shareholders to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims that may be made by Purchaser following the Closing against the Indemnification Escrow Fund, the Shareholders hereby designate ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as their representative (the “Shareholders’ Representative”), in accordance with the terms of the Power of Attorney (as defined in Section 7.3(i)).
(b) Each Shareholder irrevocably appoint and constitute K Laser as agrees that such Shareholder grants the Shareholders’ Representative full power and authority to act as agent and attorney-in-fact for each Shareholder, for and on behalf of the Selling PartiesShareholders, with the authority (i) to perform take all action necessary in connection with the waiver of any condition to the obligations of the Shareholders’ Representative set forth in this Agreement and Shareholders to consummate the Option Agreementtransactions contemplated hereby, or the defense and/or settlement of any claims that may be made by Purchaser following the Closing against the Indemnification Escrow Fund, (ii) to give and receive all notices and communicationsrequired to be given or received by the Shareholders under this Agreement or the Escrow Agreement, (iii) to authorize delivery to Purchaser of Indemnification Escrow Consideration in satisfaction of claims by Purchaser, to object to such deliveries, to agree to, to negotiate, enter into settlements and provide amendments compromises of, and supplements demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants take any and other experts, and incur any other reasonable expenses, in connection with, and to take all actions additional action necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment foregoing or as is contemplated to be taken by or on behalf of the Shareholders by the terms of this Agreement and the Escrow Agreement.
(c) The agency of the Shareholders’ Representative. Such agency Representative may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Shareholders from time to time upon not less than ten (10) 30 days’ prior written notice to Purchaser. In the event that the Shareholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Founders shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Shareholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto. The Shareholders’ Representative shall not receive compensation for his or her services. No provision of this Agreement shall restrict in any way the ability or right of the Shareholders’ Representative to voluntarily resign from such position at any time, and any such resignation shall be done without any liability to the Shareholders’ Representative.
(d) All decisions and actions by the Shareholders’ Representative, including without limitation any agreement between the Shareholders’ Representative and Purchaser relating to the defense and/or settlement of any claims that may be made by Purchaser following the Closing against the Indemnification Escrow Consideration held in the Indemnification Escrow Fund, shall be binding upon all of the Selling Parties Shareholders and no Shareholder shall have the right to Parent and Purchaser. No bond object, dissent, protest or otherwise contest the same.
(e) By such Shareholder’s execution of this Agreement, each Shareholder agrees that:
(i) Purchaser shall be able to rely conclusively on the instructions and decisions of the Shareholders’ Representative as to the settlement of any claims for indemnification of Purchaser pursuant to the Escrow Agreement or Article VIII below or any other actions required or permitted to be taken by the Shareholders’ Representative hereunder, and no party hereunder shall have any cause of action against Purchaser to the extent that Purchaser has relied upon the instructions or decisions of the Shareholders’ Representative. Notices ;
(ii) all actions, decisions and instructions of the Shareholders’ Representative shall be conclusive and binding upon all of the Shareholders and no Shareholder shall have any cause of action against the Shareholders’ Representative for any action taken, decision made or instruction given by the Shareholders’ Representative under this Agreement, except for fraud or willful breach of this Agreement by the Shareholders’ Representative;
(iii) notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except Shareholders for notices related to any action for which the Selling Parties’ consent is required under the terms purposes of this Agreement and the Escrow Agreement;
(iv) the provisions of this Section 1.7 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or applicable law. Each Selling Party agrees to receive correspondence from remedies that any Shareholder may have in connection with the transactions contemplated by this Agreement;
(v) as between such Shareholder and the other Shareholders, the Shareholders’ RepresentativeRepresentative shall have full power to determine all questions and doubts arising in relation to any of the provisions of this Agreement and every such determination made in good faith shall be conclusive and binding on the Shareholders and the Shareholders’ Representative may act on the opinion or advice of or information obtained from any solicitor, including in electronic form.attorney, banker, broker, accountant or other expert and shall not be responsible for any loss occasioned by so acting;
(bvi) The such Shareholder shall, together with all of the other Shareholders, jointly and severally indemnify the Shareholders’ Representative from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Shareholders’ Representative by Purchaser, the Company, other Shareholders, or any other person in connection with this Agreement and in suing for and recovering any sum due to the Shareholders or any of them under this Agreement;
(vii) in performing the functions specified in this Agreement and the Escrow Agreement, the Shareholders’ Representative shall not be liable for to any act done or omitted hereunder as Shareholder in the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith willful misconduct on the part of the Shareholders’ Representative; and
(viii) the provisions of this Section 1.7 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Shareholder, and any references in this Agreement to a Shareholder or the Shareholders shall mean and include the successors to the Shareholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) All fees and expenses incurred by the Shareholders’ Representative and arising shall be paid out of or amounts remaining in connection with the acceptance or administration Indemnification Escrow Fund after satisfaction of his duties hereunderall claims of Purchaser against such fund. No provision of this Agreement shall require Upon application by the Shareholders’ Representative to expend or risk the Escrow Agent and Purchaser prior to the satisfaction of all claims of Purchaser against the Indemnification Escrow Fund, Purchaser may in its own funds or otherwise incur any financial liability in sole and absolute discretion authorize the exercise or performance Escrow Agent to release a portion of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The the Indemnification Escrow Fund to the Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements reimbursement of fees and opinions prepared or presented by counsel or other professionals retained by it, and any action taken expenses incurred by the Shareholders’ Representative based on prior to such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions time. Nothing in this ARTICLE VIII, or any provision to Section 1.7(f) shall limit the contrary set forth in obligations of the Shareholders under Section 1.7(e)(vi). In carrying out his functions under this Agreement or the Option Agreement, the Shareholders’ Representative shall only have be permitted, in his discretion, to solicit from each of the power Shareholders an advancement of funds in an amount sufficient to cover the anticipated expense associated with any necessary or authority to appropriate act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)hereunder, and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amendingeach Shareholder, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted consistent with such Shareholder’s obligations pursuant to this Agreement and the Option AgreementSection 1.7(e)(vi) above, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case shall comply with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiessuch request.
Appears in 1 contract
Sources: Share Purchase Agreement (Sirf Technology Holdings Inc)
Shareholders’ Representative. a. In order to efficiently administer this transaction and the defense and/or settlement of any indemnification claims for which the Shareholders may be required to indemnify an indemnified party hereunder, the Shareholders hereby designate Jeffrey R. Esposito as the Sh▇▇▇▇▇▇▇▇▇▇' ▇▇▇▇▇▇▇ntative.
b. The Shareholders hereby authorize the Shareholders' Representative (ai) The Selling Partiesto make all decisions relating to the determination of the consideration for the Shares, by adopting this Agreement and (ii) to take all action necessary in connection with the waiver of any condition to the obligations of the Shareholders to consummate the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as or the Shareholders’ Representative defense and/or settlement of any claims for and on behalf of which the Selling Parties, with the authority (i) Shareholders may be required to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreementindemnify any indemnified party hereunder, (iiiii) to give and receive all notices and communications, (iii) required to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of be given under this Agreement and the Option Agreement, and (iv) to retain legal counsel, accountants, consultants take any and other experts, and incur any other reasonable expenses, in connection with, and all additional action as is contemplated to take all actions necessary be taken by or appropriate in the judgment on behalf of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed Shareholders by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from Agreement.
c. In the event that the Shareholders’ ' Representative becomes unable to perform his or her responsibilities hereunder, whether due to death or disability, or resigns from such position, Shareholders holding, prior to the Closing, a majority of the Shares as set forth on Schedule A attached hereto shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Shareholders' Representative for the purposes of this Agreement authorized to act for the Shareholders in accordance with Subsection 1.01(b) hereof.
d. All decisions and actions by the Shareholders' Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for including, without limitation, any act done or omitted hereunder as agreement between the Shareholders’ ' Representative while acting in good faith and without negligence and the Agent or any act done or omitted pursuant Transferee relating to the advice consideration or the defense or settlement of counsel any claims for which the Shareholders may be required to indemnify any party hereunder, shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part binding upon all of the Shareholders’ Representative , and arising out of no Shareholder shall have the right to object, dissent, protest or in connection with otherwise contest the acceptance or administration of his duties hereunder. No provision same.
e. By their execution of this Agreement Agreement, the Shareholders agree that the Agent and Transferees shall require be able to rely conclusively on the instructions and decisions of the Shareholders’ ' Representative as to expend the consideration or risk its own funds or otherwise incur any financial liability in the exercise or performance settlement of any of its powers, rights, duties claims for indemnification hereunder or privileges under this Agreement on behalf of any Selling Parties. The other actions required to be taken by the Shareholders’ ' Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by ithereunder, and no party hereunder shall have any cause of action against the Agent or Transferees for any action taken by either or both of them in reliance upon the instructions or decisions of the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith' Representative.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the f. Shareholders’ ' Representative shall only have the power charge no fees or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (request reimbursement of expenses for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant his service in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiescapacity.
Appears in 1 contract
Sources: Stock Purchase Agreement (Kma Global Soulutions International Inc)
Shareholders’ Representative. (a) The Selling PartiesIn order to administer efficiently (A) the implementation of the Agreement by the Seller and Shareholders, by adopting this Agreement and (B) the waiver of any condition to the obligations of the Seller or the Shareholders to consummate the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser (C) the settlement of any dispute with respect to the Agreement, by execution of the Shareholder Consent, Shareholders have designated Seller as their representative (the "Shareholders' Representative").
(b) By execution of the Shareholder Consent, the Shareholders authorize the Shareholders’ ' Representative for and (A) to take all action necessary in connection with the implementation of the Agreement on behalf of the Selling PartiesShareholders, with the authority (i) waiver of any condition to perform the obligations of the Shareholders’ Representative set forth in this Agreement and Shareholders to consummate the Option Agreementtransactions contemplated hereby, or the settlement of any dispute, (iiB) to give and receive all notices and communicationsrequired to be given under the Agreement, (iiiC) to agree totake any and all additional action as is contemplated to be taken by or on behalf of the Shareholders by the terms of this Agreement, negotiateand (D) to receive for Seller, enter into Shareholders and provide amendments Company Optionholders, if any, the Purchase Price, including, without limitation, that portion of the Purchase Price paid at the Closing and supplements any portion of the Standard Escrow Sum, the Additional Escrow Sum and any interest accruing thereon disbursed under the terms of the Escrow Agreement for the benefit of Seller, Shareholders and the Company Optionholders (if any). The Shareholders' Representative shall have no duty to invest any portion of the Purchase Price received by the Shareholders' Representative or to accrue any interest thereon, and waivers may deposit the Purchase Price, pending its disbursement, in respect a non-interest bearing account or accounts.
(c) In the event that the Shareholders' Representative dies, becomes legally incapacitated or resigns from such position, a person appointed by Shareholders' Representative (in the event of his resignation) or Seller's personal representative (in the event of his death or incapacity) shall fill such vacancy and shall be deemed to be the Shareholders' Representative for all purposes of this Agreement; however, no change in the Shareholders' Representative shall be effective until Global is given notice of it by the Seller and Shareholders.
(d) All decisions and actions by the Shareholders' Representative shall be binding upon all of the Shareholders, and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same, in the absence of fraud, gross negligence or willful misconduct of the Shareholders' Representative.
(e) By their execution of this Agreement and the Option Shareholder Consent, the Seller and Shareholders have agreed that:
(i) Global shall be able to rely conclusively on the instructions and decisions of the Shareholders' Representative as to any actions required or permitted to be taken by the Shareholders or the Shareholders' Representative hereunder, and no party hereunder shall have any cause of action against Global for action taken by Global in reliance upon the instructions or decisions of the Shareholders' Representative;
(ii) all actions, decisions and instructions of the Shareholders' Representative shall be conclusive and binding upon all of the Shareholders; no Shareholder shall have any cause of action against Global or the Company for any action taken or omitted to be taken, decision made or omitted to be made or any instruction given or omitted to be given by the Shareholders' Representative; and no Shareholder shall have any cause of action against the Shareholders' Representative for any action taken, decision made or instruction given by the Shareholders' Representative under this Agreement, except for fraud, gross negligence or willful breach of this Agreement by the Shareholders' Representative;
(iii) the Shareholders' Representative shall be deemed to fulfill any fiduciary obligation to the Shareholders or Company Optionholders (if any) so long as no Shareholder is adversely affected by any action or failure to act of the Shareholders' Representative in a disproportionate measure compared to any other Shareholder;
(iv) to retain legal counsel, accountants, consultants and other experts, and incur remedies available at law for any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment breach of the Shareholders’ Representative for provisions of this Section 2.16 are inadequate; therefore, Global shall be entitled to temporary and permanent injunctive relief without the accomplishment ofnecessity of proving damages if Global brings an action to enforce the provisions of this Section 2.16; and
(v) the provisions of this Section 2.16 are independent and severable, any or all shall constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by the foregoing. K Laser hereby accepts its appointment as Shareholders to the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties ' Representative and to Parent and Purchaser. No bond shall be required binding upon the executors, heirs, legal representatives and successors of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formShareholder.
(bvi) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith All fees and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense expenses incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ ' Representative shall be paid by the Seller, Shareholders and Company Optionholders (if any) based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature their aggregate Allocable Portions of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesPurchase Price.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement Daqing Mao is hereby appointed as agent and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as attorney-in-fact for each of the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform enter into and deliver the obligations Escrow Agreement on behalf of each of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give authorize or object to delivery to the Purchaser of the Escrow Fund, or any portion thereof, in satisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow Agreement, and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest each of the shares of Everest of the Selling Parties Shareholders from time to time upon not no less than ten twenty (1020) days’ days prior written notice to the Purchaser Parties and, if after the Closing, the Purchaser, provided, however, that the Shareholders’ Representative may not be removed unless holders of at least 51% of all of the Selling Parties and Company Ordinary Shares on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement agree to such removal. Any vacancy in the position of Shareholders’ Representative may be filled by approval of the holders of at least 51% of all of the Company Ordinary Shares on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement. Any removal or change of the Shareholders’ Representative shall not be effective until written notice is delivered to the Parent and or Purchaser, as applicable. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall not receive any compensation for his services. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) . The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares exercise of Everestreasonable business judgment. A decision, indemnify the Shareholders’ Representative and hold it harmless against any lossact, liability consent or expense incurred without gross negligence or bad faith on the part instruction of the Shareholders’ Representative shall, for all purposes hereunder, constitute a decision, act, consent or instruction of all of the stockholders of the Company Group and arising out shall be final, binding and conclusive upon each of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesBy the execution and delivery of this Agreement, by adopting this Agreement subject to the terms of Section 8.16(b), each Shareholder irrevocably appoints, authorizes and directs Lemna Hunter (the transactions contemplated hereby“Shareholders’ Representative”) to act as such Shareholder’s agent, hereby irrevocably appoint representative, proxy and constitute K Laser attorney-in-fact (in his capacity as the Shareholders’ Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement, and exercising, on behalf of all the Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders’ Representative shall have full power and authority, for and on behalf of the Selling PartiesShareholders, to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority (i) as are incidental thereto, to perform represent any Shareholder from and after the obligations Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article VII, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders’ Representative set forth in this Agreement is irrevocable, and the Option Agreement, (ii) shall be deemed to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect be coupled with an interest. Execution of this Agreement and by the Option Agreement, (iv) Shareholders shall constitute agreement to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all be bound by the actions necessary or appropriate in the judgment of the Shareholders’ Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement after the Closing Date, the Shareholders’ Representative shall act for and on behalf of the accomplishment ofShareholders, and to the extent the Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Shareholders appoint the Shareholders’ Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders’ Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders’ Representative shall be conclusive and binding upon the Shareholders. The Shareholders’ Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 8.16, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the foregoingShareholders based upon each Shareholder’s Pro Rata Portion. K Laser hereby accepts its appointment as Under this Section 8.16(a), however, the Shareholders’ RepresentativeRepresentative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving Individual Shareholder Breaches.
(b) Subject to the provisions of this Section 8.16(b), the Shareholders’ Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. Such agency The Shareholders’ Representative may be changed replaced or terminated at any time by the holders of those Shareholders holding a majority in interest of the Company’s shares of Everest of immediately prior to the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of Closing. If the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from Person who is acting as the Shareholders’ Representative is terminated or replaced by the Shareholders or is unable or unwilling to Parent shall constitute notice continue to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from serve as the Shareholders’ Representative, including or otherwise ceases to be the Shareholders’ Representative, his successor shall promptly be appointed by the Shareholders holding a majority in electronic forminterest of the Company’s shares immediately prior to the Closing; provided, however, that the Shareholders’ Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders’ Representative (reasonably satisfactory to Parent). Any successor to a Shareholders’ Representative shall for purposes of this Agreement be the Shareholders’ Representative and from and after such time, the term “Shareholders’ Representative” as used herein shall refer to any successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement.
(bc) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as allowed further access to and permitted to review the Shareholders’ Representative while acting in good faith Company’s books and without negligence records during normal business hours and any act done or omitted pursuant make copies reasonably required of (i) the working papers of Buyer and the Company relating to the advice of counsel Earn-Out Amount or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn-Out Amount or any Claims.
(d) The provisions set forth in this Section 8.16 shall not impose any liability or obligation on Buyer or the Company other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Buyer or the Company to the contrary, Buyer shall be conclusive evidence of such good faith fully protected in relying upon and absence of negligence. The Selling Parties shall severally be entitled (i) to rely upon actions, decisions and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part determinations of the Shareholders’ Representative and arising out (ii) to assume that all actions, decisions and determinations of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively are fully authorized and binding upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, and the Shareholders’ Representative shall only . The parties hereto have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in caused this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Stock Purchase Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than executed as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations)date first written above. NTS TECHNICAL SYSTEMS By: /s/ Raffy Lorentzian Name: Raffy Lorentzian Title: CFO NATIONAL TECHNICAL SYSTEMS, in each case with respect to clauses (i)INC. By: /s/ Raffy Lorentzian Name: Raffy Lorentzian Title: CFO MECHTRONIC SOLUTIONS, (ii) and (iii) of this Section 8.1(c)INC. By: /s/ ▇▇▇▇ Spruce Name: ▇▇▇▇ Spruce Title: President, without first obtaining the prior written approval of the Selling Parties.CEO LA ▇▇▇ ASCENSIONS, LLC By: /s/ ▇▇▇▇ Spruce Managing Member NEW TECH I, LP By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Title: General Partner QUATRO VENTURES, LLC By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Title: Managing Member /s/ Lemna Hunter Lemna Hunter /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Appears in 1 contract
Sources: Stock Purchase Agreement (National Technical Systems Inc /Ca/)
Shareholders’ Representative. A committee consisting of a representative of U.S. Trust, a representative of Fidelity Investments, and ▇▇▇▇ ▇▇▇▇▇▇ (a) The Selling Partiesthe "Shareholders' Representative"), by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser shall act as the Shareholders’ Representative for representative of the Company Holders, and shall be authorized to act on behalf of the Selling PartiesCompany Holders and to take any and all actions required or permitted to be taken by the Shareholders' Representative under this Agreement or the Escrow Agreement, with respect to any claims (including the authority (isettlement thereof) made by Parent or the Company Holders for indemnification pursuant to perform the obligations this Article IX of the Agreement and with respect to any actions to be taken by the Shareholders’ ' Representative pursuant to the terms of the Escrow Agreement. Any notice of any Third Party Claim for which Parent is an Indemnified Party shall be deemed to have been delivered by Parent to the Company Holders pursuant to Section 9.04(b) if validly delivered to the Shareholders' Representative. The Company Holders shall be bound by all actions taken by the Shareholders' Representative in its capacity thereof, except for any action that conflicts with the limitation set forth in the final sentence of this Section 9.06. The Shareholders' Representative shall promptly, and in any event within ten business days, provide written notice to the Company Holders of any action taken on their behalf by the Shareholders' Representative pursuant to the authority delegated to the Shareholders' Representative under this Section 9.06. The Shareholders' Representative shall at all times act in his or her capacity as Shareholders' Representative in a manner that the Shareholders' Representative believes in good faith to be in the best interest of the Company Holders. Neither the Shareholders' 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 and or the Option Escrow Agreement, (ii) to give and receive notices and communicationsexcept in the case of its gross negligence, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain bad faith or willful misconduct. The Shareholders' Representative may consult with legal counsel, accountants, consultants independent public accountants and other experts, experts selected by it and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done action taken or omitted hereunder as the Shareholders’ Representative while acting to be taken in good faith and without negligence and any act done or omitted pursuant to by it in accordance with the advice of counsel shall be conclusive evidence of such good faith and absence of negligencecounsel, accountants or experts. The Selling Parties Shareholders' Representative shall severally (and not jointly), according have any duty to each Selling Parties’ pro-rata interest in ascertain or to inquire as to the shares performance or observance of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of terms, covenants or in connection with the acceptance or administration of his duties hereunder. No provision conditions of this Agreement shall require or the Shareholders’ Representative Escrow Agreement. As to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth matters not expressly provided for in this Agreement or the Option Escrow Agreement, the Shareholders’ ' Representative shall only have the power not be required to exercise any discretion or authority to act with respect to matters pertaining to the Selling Parties as a group take any action. Each Company Holder severally shall indemnify and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), hold harmless and the powers conferred on shall reimburse the Shareholders’ ' Representative herein from and in the Option Agreement shall not authorize against such Company Holder's ratable share of any and all liabilities, losses, damages, claims, costs or empower expenses suffered or incurred by the Shareholders’ ' Representative to do arising out of or cause resulting from any action taken or omitted to be done any action (including taken by amending, modifying or waiving any provision of the Shareholders' Representative under this Agreement or the Option Escrow Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner , other than as permitted such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Shareholders' Representative's gross negligence, bad faith or willful misconduct (the "Shareholders' Representative Expenses"). Notwithstanding the foregoing, the Shareholders' Representative shall be entitled to reimbursement of the Shareholders' Representative Expenses from the Escrow Amount pursuant to the terms of the Escrow Agreement. In all matters relating to this Agreement Article IX, the Shareholders' Representative shall be the only party entitled to assert the rights of the Company Holders, and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature Shareholders' Representative shall perform all of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval obligations of the Selling PartiesCompany Holders hereunder. Parent shall be entitled to rely on all statements, representations and decisions of the Shareholders' Representative.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Company hereby irrevocably appoint and constitute K Laser as appoints the Shareholders’ Representative for and on behalf as the representative of the Selling PartiesShareholders for the purposes set forth herein and for purposes of enforcing all obligations of Parent that are for the benefit of the Shareholders after the Effective Time. If the Shareholders’ Representative should dissolve, with disappear, liquidate, merge out of existence, enter into bankruptcy proceedings, or otherwise experience a similar event (or, in the authority case Shareholders’ Representative is an individual, die or become incapacitated) (ieach such event, a “Terminating Event”), its successor shall be appointed within fifteen (15) calendar days of such event by Persons holding a majority of the Shares of Common Stock as of immediately prior to perform the obligations Effective Time, and any such successor shall be a Shareholder, an officer of a Shareholder or an Affiliate of a Shareholder and shall agree in writing to accept such appointment. The choice of a successor Shareholders’ Representative appointed in any manner permitted above shall be final and binding upon all of the Shareholders. The decisions and actions of any successor Shareholders’ Representative shall be, for all purposes, those of the Shareholders’ Representative set forth in this Agreement as if originally named herein.
(b) A Terminating Event of any Shareholder shall not terminate the authority and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(bc) The Shareholders’ Representative shall not be liable for have no liability (i) to any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or Shareholder in connection with the acceptance or administration of his duties performing its obligations hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision except to the contrary set forth in this Agreement or the Option Agreement, extent the Shareholders’ Representative shall only have acted maliciously in connection with the power or authority to act with respect to matters pertaining performance of its duties hereunder, and (ii) under this Agreement prior to the Selling Parties as a group and not matters pertaining Effective Time.
(d) By their acceptance of any payments pursuant to an individual Selling Party (for example but not by way Article II of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on Shareholders shall be deemed to have authorized the Shareholders’ Representative herein Representative, on their behalf and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amendingtheir name, modifying or waiving any provision of this Agreement or the Option Agreement) that to:
(i) results receive all notices or documents given or to be given to the Shareholders pursuant hereto or in the amounts payable hereunder connection herewith and to receive and accept service of legal process in connection with any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement suit or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities proceeding arising under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.Agreement;
Appears in 1 contract
Sources: Merger Agreement (Envestnet, Inc.)
Shareholders’ Representative. (a) The Selling Parties, Shareholders hereby authorize the Shareholders' Representative to take all actions and to execute and deliver all documents contemplated by adopting this Agreement and the transactions contemplated herebyto be taken, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and executed or delivered by him or by or on behalf of the Selling PartiesShareholders, with including, without limitation, authorization to employ accountants, counsel and other agents as the authority (i) Shareholders' Representative deems advisable, in his discretion, and to perform pay reasonable compensation for their services. The Shareholders hereby irrevocably appoint ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ to act as the obligations initial Shareholders' Representative. In the event the Shareholders' Representative shall at any time resign, the resigning Shareholders' Representative shall appoint a successor Shareholders' Representative, either from among the Shareholders or who shall otherwise be acceptable to Purchaser, and who shall be recognized and entitled to act in such capacity hereunder upon his assumption in writing of the duties and responsibilities of the Shareholders’ ' Representative set forth under this Agreement; PROVIDED that the resigning Shareholders' Representative's resignation shall not be effective until such a successor shall exist. In the event the Shareholders' Representative shall at any time be unable to act as such hereunder as a result of his death or disability, a majority of the remaining Shareholders shall, as soon as reasonably practical under the then existing circumstances, appoint a substitute Shareholders' Representative either from among the Shareholders or who shall otherwise be acceptable to Purchaser and who shall be recognized and be entitled to act in such capacity hereunder upon his assumption in writing of the duties and responsibilities of the Shareholders' Representative under this Agreement. The choice of a successor Shareholders' Representative appointed in any manner permitted above shall be final and binding upon all of the Shareholders. Each Shareholder has made, constituted and appointed and by the execution of this Agreement hereby irrevocably makes, constitutes and appoints the Shareholders' Representative as such person's true and lawful attorney in fact and agent, for such person and in such person's name,
(a) to receive all notices of Claims pursuant to Section 8.5 hereof and all other notices and communications directed to such Shareholder under this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action (or to determine to take no action) with respect thereto as he may deem appropriate as effectively as such Shareholder could act for which the Selling Parties’ consent is required under the terms of this Agreement himself or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representativeherself, including in electronic form.without limitation, the settlement or compromise of any dispute or controversy, and
(b) The to execute and deliver all instruments and documents of every kind incident to the foregoing, for all intents and purposes and with the same effect as such Shareholder could do personally, and each such Shareholder hereby ratifies and confirms as his or her own act, all that the Shareholders’ ' Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party provisions hereof. All notices of Claims pursuant to this Agreement or the Option Agreement, or (iii) adds Section 8.5 hereof and all other notices and communications directed to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities Shareholders under this Agreement (including, for the avoidance of doubt, any change shall be given to the nature Shareholders' Representative. Purchaser and the Surviving Corporation shall be entitled to rely upon and protected in their reliance upon the decisions, actions and omissions to act by the Shareholders' Representative as the authorized representative of all of the indemnity obligations), in each case with respect to clauses (i), (ii) Shareholders. The death or incapacity of any Shareholder shall not terminate the authority and (iii) of this Section 8.1(c), without first obtaining the prior written approval agency of the Selling PartiesShareholders' Representative.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesEach Shareholder agrees that Paul ▇. ▇▇▇▇▇▇▇ ▇▇ hereby appointed the "Shareholders' Representative" and in such capacity shall have full power and authority to participate in and represent the Shareholders and their successors and assigns with respect to all matters arising under this Agreement, by adopting this the Indemnity Escrow Agreement and the transactions contemplated herebyRegistration Rights Agreement, hereby irrevocably appoint including but not limited to (i) defend, compromise and constitute K Laser as the Shareholders’ Representative for and settle, in his absolute discretion, on behalf of the Selling PartiesShareholders all claims for indemnification made by BindView, with its Related Persons, officers, directors, employees, agents, shareholders and controlling Persons and their respective successors and permitted assigns under Article XI to the authority (i) to perform extent such indemnification is for a claim for which the obligations of the Shareholders’ Representative set forth in this Agreement and the Option AgreementShareholders are obligated, (ii) to give execute any and receive notices all documents, certificates, instruments and communicationsagreements for and in the name of such Shareholder in connection with the Contemplated Transactions, (iii) take any and all actions on behalf of the Shareholders as may be necessary to agree toassert or defend the Shareholders' rights under such Agreements, negotiateand (iv) interpret all of the terms and provisions of this Agreement, enter into the Indemnity Escrow Agreement and provide amendments the Registration Rights Agreement. Each Shareholder agrees to be bound by the actions of the Shareholders' Representative taken pursuant to the powers and supplements to and waivers in respect authority granted herein. Execution of this Agreement by the Shareholders constitutes an irrevocable appointment of Paul ▇. ▇▇▇▇▇▇▇ ▇▇ the Shareholders' Representative.
(i) The Shareholders' Representative shall not incur any liability with respect to any action taken, not taken or suffered by him in reliance upon any note, direction, instruction, consent, statement or other document believed by him to be genuinely and duly authorized, nor for other action or inaction as the Option Shareholders' Representative, excepting only his own proven willful misconduct or gross negligence. The Shareholders' Representative may, in all questions arising hereunder or under the Indemnity Escrow Agreement or the Registration Rights Agreement, rely on the advice of counsel and for anything done, omitted or suffered in good faith by the Shareholders' Representative based on such advice, the Shareholders' Representative shall not be liable to anyone.
(ivii) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary In the event of the death or appropriate in the judgment permanent disability of the Shareholders’ Representative for the accomplishment of' Representative, any or all of the foregoing. K Laser hereby accepts its appointment his resignation as the Shareholders’ ' Representative, a successor Shareholders' Representative shall be elected by a majority vote of the Shareholders, with each Shareholder to be given a vote equal to his proportionate percentage pursuant to a procedure to be mutually agreed upon among the Shareholders. Such agency may The Shareholders shall cause to be changed delivered to BindView prompt written notice of such election of a successor Shareholders' Representative, signed by the holders of a majority in interest of the Shareholders. The Shareholders holding a majority of the issued and outstanding shares of Everest of BindView Common Stock originally issued as Consideration shall act as the Selling Parties from time interim Shareholders' Representative until such election. Each interim and successor Shareholders' Representative shall have all the power, authority, rights, protections, and privileges conferred by this Agreement upon the original Shareholders' Representative, and the term "Shareholders' Representative" as used herein shall be deemed to time upon not less than ten include any interim or successor Shareholders' Representative. BindView shall be entitled to treat the Shareholders' Representative (10or any successor) days’ prior written notice to all of as the Selling Parties Shareholders' Representative and to Parent and Purchaser. No bond shall be required rely on any action he may take until notified otherwise by a written document signed by a majority in interest of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(biii) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as Should the Shareholders’ ' Representative while acting be in good faith and without negligence and any act done or omitted pursuant doubt as to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according what action to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges take under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon Agreement, the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Indemnity Escrow Agreement or the Option Registration Rights Agreement, the Shareholders’ ' Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example right, but not by way of limitationthe obligation, an action against an individual Selling Party either to (1) withhold any action, payment or distribution until his doubt is resolved or (2) institute a petition for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed interpleader in any manner other than as permitted pursuant court of competent jurisdiction to this Agreement determine his rights and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Share Purchase Agreement (Bindview Development Corp)
Shareholders’ Representative. (a) The Selling PartiesBy execution hereof, by adopting this Agreement the Seller and each Shareholder hereby designates and appoints ▇▇▇▇▇▇▇▇ (the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the “Shareholders’ Representative Representative”), as agent for and on behalf of the Selling PartiesSeller and each Shareholder, and the true and lawful attorney in fact of the Seller and each Shareholder, with the full power and authority (i) to perform the obligations in each of the Seller’s and Shareholders’ Representative set forth in this Agreement and the Option Agreementnames, (ii) to give and receive notices and communications, (iii) to agree to, negotiatenegotiate and enter into, enter into on behalf of the Seller and provide amendments and supplements to each such Shareholder, amendments, consents and waivers in respect of under this Agreement pursuant to the terms set forth herein, to make and receive payments on behalf of the Option Seller and each Shareholder pursuant to the terms set forth herein, to take such other actions as authorized by this Agreement, (iv) including the defense and/or settlement of any indemnification claims of any HealthStream Indemnified Person pursuant to retain legal counselArticle VIII, accountantsto take all actions authorized by the Escrow Agreement, consultants including defending or settling any claims thereunder and other expertsreleasing and transferring any of the Escrowed Cash to HealthStream in accordance with the terms set forth therein, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as All such actions of the Shareholders’ RepresentativeRepresentative shall be deemed to be facts ascertainable outside this Agreement and shall be binding on the Seller and the Shareholders. Such agency may be changed by a vote or written consent by the holders of a majority in interest of the shares of Everest capital stock of the Selling Parties Company immediately prior to the consummation of the Restructuring, voting in the same manner as would have been voted in accordance with the organizational documents of the Company as in effect immediately prior to the Restructuring (the “Majority Holders”), from time to time upon not less than ten (10) days’ prior written notice to all HealthStream. If at any time the Shareholders’ Representative resigns, dies or becomes incapable of acting, the Majority Holders shall choose another Person to act as the Shareholders’ Representative under this Agreement. Neither the Seller nor the Shareholders may make a claim for indemnity against HealthStream pursuant to this Agreement except through the Shareholders’ Representative, who shall make such a claim only upon the written direction of the Selling Parties Majority Holders.
(b) Once the Shareholders’ Representative has initiated a claim for indemnity, all acts and to Parent decisions of the Shareholders’ Representative in connection with such matter shall be binding on the Seller and Purchaserall the Shareholders. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall receive no compensation for services provided hereunder. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling PartiesShareholders.
(c) The Shareholders’ Representative will be entitled to engage such counsel, except experts and other agents as the Shareholders’ Representative deems necessary or proper in connection with performing the Shareholders’ Representative’s obligations hereunder, and will be promptly reimbursed by the Seller and the Shareholders for notices related to any action for which all reasonable expenses, disbursements and advances incurred by the Selling PartiesShareholders’ consent is required under the terms of this Agreement or applicable lawRepresentative in such capacity upon demand. Each Selling Party agrees to receive correspondence from The Shareholders shall severally indemnify and hold harmless the Shareholders’ Representative, including based on the percentage of the total number of shares of the Seller held by each such Shareholder as set forth in electronic form.
(bSection 2.4(a) of the Company Disclosure Schedule, of any and all Damages that are incurred by the Shareholders’ Representative as a result of actions taken, or actions not taken, by the Shareholders’ Representative herein, except to the extent that such Damages arise from the gross negligence or willful misconduct of the Shareholders’ Representative. The Shareholders’ Representative shall not be liable to the Seller or the Shareholders for any act done or omitted hereunder as Shareholders’ Representative, excluding acts which constitute gross negligence or willful misconduct.
(d) All amounts received by the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to on behalf of the advice of counsel shall Seller under this Agreement will be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify promptly paid by the Shareholders’ Representative to the Seller; provided, however, that the Shareholders’ Representative will be entitled to set off any amounts payable to the Shareholders’ Representative under this Section 10.12(d) against amounts otherwise payable to the Seller pursuant to this Section 10.12(d) or released Escrowed Cash for the benefit of the Seller.
(e) This appointment and hold it harmless against grant of power and authority is coupled with an interest and is in consideration of the mutual covenants made herein and is irrevocable and shall not be terminated by any lossact of the Seller or the Shareholders (except as otherwise provided herein) or by operation of law, liability whether by the death or expense incurred without gross negligence incapacity of any Shareholder or bad faith on by the part occurrence of any other event. A decision, act, consent or instruction of the Shareholders’ Representative and arising out in respect of or in connection with the acceptance or administration of his duties hereunder. No provision of any action under this Agreement or the Escrow Agreement shall require constitute a decision of the Seller and all of the Shareholders and shall be final, binding and conclusive upon the Sellers, the Shareholders, and HealthStream may rely upon any decision, act, consent or instruction of the Shareholders’ Representative hereunder as being the decision, act, consent or instruction of the Seller and each and every such Shareholder. HealthStream shall be able to rely conclusively on the proper distribution of such amounts by the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively Seller upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken receipt by the Shareholders’ Representative based on of such reliance shall be deemed conclusively amounts. HealthStream is hereby relieved from any liability to have been taken in good faith.
any Person (c) Notwithstanding including the foregoing provisions in this ARTICLE VIIISeller, any Shareholders or any provision other Shareholder Indemnified Person) for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholders’ Representative, to the contrary set forth in this Agreement or the Option Agreement, extent delegated to the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party hereunder.
(for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreementf) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) The provisions of this Section 8.1(c)10.12 are independent and severable, without first obtaining are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Person may have in connection with the prior written approval of the Selling Partiestransactions contemplated by this Agreement.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Healthstream Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting By virtue of approval of this Agreement by the Shareholders, the consummation of the Merger, the execution of the Voting and Support Agreement, Support Agreement or Option Cancellation Agreement, the Equity Holders’ participation and receipt of the Merger Consideration and the Carve-out Plan Participants’ participation in the Carve-out Plan and receipt of the Carve-out Plan Amount, each Company Indemnifying Party approves the designation of and designates Shareholder Representative Services LLC as the Shareholders’ Representative, as its, his or her true and lawful attorney-in-fact and agent, each with full power of substitution or resubstitution, to act solely and exclusively on behalf of such Company Indemnifying Party with respect to the transactions contemplated by this Agreement, including the Merger, and to act on behalf of such Company Indemnifying Party in any litigation or arbitration involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated hereby, including, but not limited to, the power:
(i) to act for such Company Indemnifying Party with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of such Shareholder;
(ii) to act for such Company Indemnifying Party with regard to matters pertaining to litigation;
(iii) to execute and deliver all documents in connection with the transactions contemplated hereby irrevocably appoint and constitute K Laser as or amendments thereto that the Shareholders’ Representative deems necessary or appropriate;
(iv) to receive funds, make payments of funds, and give receipts for and funds on behalf of any Company Indemnifying Party;
(v) to receive funds for the Selling Parties, payment of expenses of such Company Indemnifying Party and apply such funds in payment for such expenses;
(vi) to cause the distribution of any unused portion of the Expense Fund Amount to the Equity Holders in accordance with the authority terms of this Agreement;
(ivii) to perform do or refrain from doing any further act or deed on behalf of such Company Indemnifying Party that the obligations Shareholders’ Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as fully and completely as such Company Indemnifying Party could do if personally present; and
(viii) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholders’ Representative may resign at any time by providing Buyer a minimum of twenty (20) days’ advance written notice and a successor Shareholders’ Representative, reasonably acceptable to Buyer, shall be appointed by a majority in interest of the Equity Holders. The appointment of the Shareholders’ Representative set forth in this Agreement shall be deemed coupled with an interest and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertsshall be irrevocable, and incur Buyer, the Merger Subs and any other reasonable expensesPerson may conclusively and absolutely rely, without inquiry, upon any action of the Shareholders’ Representative in connection with, and all matters referred to take all actions necessary herein. All notices required to be made or appropriate in delivered by Buyer or the judgment of Merger Subs to the Company after the Closing described above shall be made to the Shareholders’ Representative for the accomplishment ofbenefit of such Company Indemnifying Party and shall discharge in full all notice requirements of Buyer, any Buyer Indemnitee or the Merger Subs as applicable, to such Company Indemnifying Party with respect thereto. The Shareholders’ Representative shall act for the Company Indemnifying Parties on all of the foregoingmatters set forth in this Agreement in the manner the Shareholders’ Representative reasonably believes to be in the best interest of the Company Indemnifying Parties and consistent with the obligations of the Company Indemnifying Parties under this Agreement, but none of the Shareholders’ Representative, Buyer, the Merger Subs, the Surviving Corporation or the Buyer Indemnitees shall be responsible to any Company Indemnifying Party for any damages which the Company Indemnifying Parties may suffer by the performance of the Shareholders’ Representative’s duties under this Agreement, except that the Shareholders’ Representative shall be solely responsible for all damages arising from willful misconduct or gross negligence in the performance of its duties under this Agreement. K Laser hereby accepts its appointment as The Shareholders’ Representative shall not have any duties or responsibilities except those expressly set forth in the Transaction Documents, and no implied covenants, functions, responsibilities, duties or liabilities shall be read into this Agreement or shall otherwise exist against the Shareholders’ Representative. Such agency may be changed By virtue of approval of this Agreement by the holders of a majority in interest Shareholders, the consummation of the shares of Everest Merger, the Equity Holders’ participation and receipt of the Selling Merger Consideration, each Company Indemnifying Party agrees to reimburse the Shareholders’ Representative for all out-of-pocket costs and expenses incurred by the Shareholders’ Representative under this Agreement, including fees for any attorneys or other representative it may employ.
(c) The Shareholders’ Representative shall be entitled to rely, and shall be fully protected in relying, upon any statements furnished to it by the Company, any Company Indemnifying Party, Buyer, the Merger Subs or any other evidence deemed by the Shareholders’ Representative to be reliable, and the Shareholders’ Representative shall be entitled to act on the advice of counsel selected by it.
(d) The Company Indemnifying Parties from time hereby agree to time upon not less than ten severally (10based on each such Company Indemnifying Party’s respective Indemnification Pro-Rata Portion) daysindemnify and defend the Shareholders’ prior written notice to all of the Selling Parties Representative against, and to Parent hold the Shareholders’ Representative harmless from, any and Purchaser. No bond shall be required all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Shareholders’ Representative Expenses”) arising out of or in connection with the Shareholders’ Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Shareholders’ Representative Expense is suffered or incurred; provided, that in the event that any such Shareholders’ Representative Expense is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Shareholders’ Representative, the Shareholders’ Representative will reimburse the Company Indemnifying Parties the amount of such indemnified Shareholders’ Representative Expenses to the extent attributable to such gross negligence or willful misconduct. Notices or communications If not paid directly to or the Shareholders’ Representative by the Company Indemnifying Parties, any such Shareholders’ Representative Expenses may be recovered by the Shareholders’ Representative from (i) the funds in the Expense Fund and (ii) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Company Indemnifying Parties; provided, that while this section allows the Shareholders’ Representative to Parent shall constitute notice be paid from the aforementioned sources of funds, this does not relieve the Company Indemnifying Parties from their obligation to promptly pay such Shareholders’ Representative Expenses as they are suffered or incurred, nor does it prevent the Shareholders’ Representative from each seeking any remedies available to it at law or otherwise. In no event will the Shareholders’ Representative be required to advance its own funds on behalf of the Selling Parties, except for notices related Company Indemnifying Parties or otherwise. The Company Indemnifying Parties acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Shareholders’ Representative or the termination of this Agreement. The Shareholders’ Representative will incur no liability of any kind with respect to any action for which or omission by the Selling PartiesShareholders’ consent is required under Representative in connection with the terms of Shareholders’ Representative’s services pursuant to this Agreement or applicable law. Each Selling Party agrees to receive correspondence and any agreements ancillary hereto, except in the event of liability directly resulting from the Shareholders’ Representative, including in electronic form.
(b) ’s gross negligence or willful misconduct. The Shareholders’ Representative shall not be liable for any act done action or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted omission pursuant to the advice of counsel counsel.
(e) Subject to the terms and conditions of this Agreement, upon the Closing, Buyer shall wire to the Shareholders’ Representative the Expense Fund Amount pursuant to wire instructions provided to Buyer, which shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify held by the Shareholders’ Representative and hold it harmless against any lossshall be used for the purposes of paying directly, liability or expense incurred without gross negligence or bad faith on the part of reimbursing the Shareholders’ Representative and arising out of for, any third party expenses incurred pursuant to this Agreement, the Escrow Agreement, Paying Agent Agreement or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the any Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in letter agreement (the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties“Expense Fund”). The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel will hold these funds separate from its corporate funds. The Company Indemnifying Parties shall not receive interest or other professionals retained by it, earnings on amounts in the Expense Fund and any action taken by the Company Indemnifying Parties irrevocably transfer and assign to the Shareholders’ Representative based any ownership right that the Company Indemnifying Parties may have in any interest or other earnings that may accrue on such reliance amounts in the Expense Fund. The Company Indemnifying Parties acknowledge that the Shareholders’ Representative is not providing any investment supervision, recommendations or advice and shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding no responsibility or liability for any loss of principal of the foregoing provisions in this ARTICLE VIII, Expense Fund other than as a result of its gross negligence or any provision to willful misconduct. Contemporaneous with or as soon as practicable following the contrary set forth in this Agreement or completion of the Option AgreementShareholders’ Representative’s duties, the Shareholders’ Representative will deliver the balance of the Expense Fund (if any) to the Escrow Agent for further distribution to the Equity Holders in accordance with the terms of the Escrow Agreement. For Tax purposes, the Expense Fund shall only have be treated as having been received and voluntarily set aside by the power or authority to act Equity Holders, other than the Vested Option Holders, at the time of Closing. The portion of the Expense Fund with respect to matters pertaining the Vested Company Options described in Section 2.4 of this Agreement is subject to substantial limitations or restrictions and is subject to the Selling Parties claims of the Company’s creditors such that such portion of the consideration is not constructively received by the holders for Tax purposes at the time of Closing and is not intended to be compensation or wages, or subject to withholding as a group and not matters pertaining to an individual Selling Party such, until the distribution of such portion of the Expense Fund (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on if any).The parties agree that the Shareholders’ Representative herein and in the Option Agreement shall is not authorize acting as a withholding agent or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement similar capacity in connection with the Expense Fund and the Option Agreement, (ii) alters the consideration payable to shall have no liability for any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case tax reporting with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval final distribution of the Selling PartiesExpense Fund to the Equity Holders by the Escrow Agent.
Appears in 1 contract
Sources: Merger Agreement (MeetMe, Inc.)
Shareholders’ Representative. (a) The Selling PartiesBoard of Directors of the Company, by adopting this Agreement and shall appoint ▇▇▇▇▇▇ ▇. ▇▇▇▇ (the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser “Shareholders’ Representative”) as the Shareholders’ Representative agent and attorney-in-fact for and on behalf of the Selling Parties, with the authority each Previous Equityholder to:
(i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to organize or assume the defense of claims, agree to, negotiate, or enter into settlements and provide amendments compromises of, and supplements demand arbitration and comply with orders of courts and awards of arbitrators with respect to and waivers any claim; and
(ii) take all other actions specified in respect of this Agreement and to be taken by the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, Shareholders’ Representative and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment By accepting any consideration under this Agreement, each Previous Equityholder shall be deemed to irrevocably appoint and authorize the Shareholders’ Representative to act as his or her agent hereunder with such powers as are delegated hereunder to the Shareholders’ Representative and to take such other actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing. The Shareholders’ Representative shall act in the best interest of the Previous Equityholders as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and PurchaserRepresentative shall determine. No bond shall be required of the Shareholders’ RepresentativeRepresentative and the Shareholders’ Representative shall receive no compensation for services rendered from any of the Company, the Surviving Corporation, Merger Sub or Parent, it being understood that any expenses of Shareholders’ Representative shall be reimbursed by the Previous Equityholders Pro Rata (first from the Shareholders’ Representative Account as below provided). Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from any applicable Previous Equityholder. Any decision, act, consent or instruction of the Shareholders’ Representative shall constitute a decision of all Previous Equityholders and shall be final, binding and conclusive upon each of the Selling PartiesPrevious Equityholders and Parent may rely upon any written decision, except for notices related to any action for which the Selling Parties’ act, consent is required under the terms or instruction of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative. Parent is hereby relieved from any liability to any Person for any acts done by it in accordance with such written decision, including in electronic form.
(b) act, consent or instruction of the Shareholders’ Representative. The Shareholders’ Representative shall not be held liable for any act acts done by it in good faith. In the event that the Shareholders’ Representative dies, is disabled or omitted hereunder otherwise becomes unable to serve in such capacity pursuant to this Agreement, the Previous Equityholders shall elect a Previous Equityholder to serve as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant by majority vote of the Previous Equityholders. Each Previous Equityholder shall have one (1) vote for each Company Share owned immediately prior to the advice Effective Date.
(i) At the Closing, Parent shall deposit Two Hundred Thousand Dollars ($200,000) of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally the Closing Cash Consideration (and not jointly), according to each Selling Partiesthe “Shareholders’ proRepresentative Account Fund”) into an interest-rata interest bearing account in the shares name of Everest, indemnify the Shareholders’ Representative for the benefit of the Previous Equityholders (the “Shareholders’ Representative Account”). Subject to Section 6.9(b)(ii) the Shareholders’ Representative Account Fund shall remain in the Shareholders’ Representative Account up to the later of the Final Release Date or the date that any dispute (if any) between the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part Parent pursuant to this Agreement has been resolved (“Shareholders’ Representative Fund Release Date”). Payment of the Shareholders’ Representative and arising out of or in connection with Account Fund on the acceptance or administration of his duties hereunder. No Shareholders’ Representative Fund Release Date shall be made on a Pro Rata basis to the Previous Equityholders.
(ii) Notwithstanding any other provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreementotherwise, the Shareholders’ Representative shall only have the power or authority is authorized to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on draw upon the Shareholders’ Representative herein and Account to pay expenses as he deems, in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause good faith, to be done any action (including by amendingnecessary or appropriate in connection with the defense of Company Indemnity Claims, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in enforcement on behalf of the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to Previous Equityholders of their rights under this Agreement and the Option Agreement, (ii) alters and such other costs and expenses incurred in connection with the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase consummation of any Selling Party’s indemnity or other obligations or liabilities under transaction contemplated by this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesAgreement.
Appears in 1 contract
Sources: Merger Agreement (Kratos Defense & Security Solutions, Inc.)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement In order to efficiently administer the waiver of any condition or right of the Shareholders and the transactions contemplated herebysettlement of any dispute arising under the Agreement, the Shareholders hereby irrevocably appoint and constitute K Laser designate ▇▇▇▇▇▇ ▇. ▇▇▇▇ as their representative (the "Shareholders' Representative").
(b) The Shareholders hereby authorize the Shareholders’ ' Representative for and on behalf of the Selling Parties, with the authority (i) to perform take all action necessary in connection with the waiver of any condition to the obligations of the Shareholders’ Representative set forth in Shareholders under this Agreement and Agreement, the Option Agreementwaiver of any right of the Shareholders hereunder, or the settlement of any dispute arising hereunder, (ii) to give and receive all notices required to be given under this Agreement and communications, (iii) to agree to, negotiate, enter into take any and provide amendments and supplements all additional action as is contemplated to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary be taken by or appropriate in the judgment on behalf of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed Shareholders by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithAgreement.
(c) Notwithstanding In the foregoing provisions event that the Shareholders' Representative dies, becomes legally incapacitated or resigns from such position, ▇▇▇▇ ▇. Gain shall fill such vacancy and shall be deemed to be the Shareholders' Representative for all purposes of this Agreement; however, no change in the Shareholders' Representative shall be effective until Buyer is given notice of it by the Shareholders.
(d) All decisions and actions by the Shareholders' Representative shall be binding upon all of the Shareholders, and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders agree that:
(i) Buyer shall be able to rely conclusively on the instructions and decisions of the Shareholders’ ' Representative as to any actions required or permitted to be taken by the Shareholders or the Shareholders' Representative hereunder, and no party hereunder shall have any cause of action against Buyer for any action taken by Buyer in reliance upon the instructions or decisions of the Shareholders' Representative;
(ii) all actions, decisions and instructions of the Shareholders' Representative shall only be conclusive and binding upon all of the Shareholders and no Stockholder shall have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way any cause of limitation, an action against an individual Selling Party the Shareholders' Representative for hisany action taken, her decision made or its individual breach of a covenant in instruction given by the Shareholders' Representative under this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize except for fraud or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision willful breach of this Agreement or by the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or Shareholders' Representative;
(iii) adds to or results in an increase of remedies available at law for any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature breach of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) provisions of this Section 8.1(c)1.6 are inadequate; therefore, Buyer and Seller shall be entitled to temporary and permanent injunctive relief without first obtaining the prior written approval necessity of proving damages if either Buyer or Seller brings an action to enforce the Selling Partiesprovisions of this Section 1.6; and
(iv) the provisions of this Section 1.6 are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by the Shareholders to the Shareholders' Representative and shall be binding upon the executors, heirs, legal representatives and successors of each Stockholder.
(f) All fees and expenses incurred by the Shareholders' Representative shall be paid by the Shareholders.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement Arjun ▇▇▇▇▇▇ (such person and any successor or successors being the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser "Shareholders' Representative") shall act as the Shareholders’ Representative for representative of the Holders, and shall be authorized to act on behalf of the Selling PartiesHolders, and to take any and all actions required or permitted to be taken by the Shareholders' Representative under this Agreement, including, without limitation, with respect to any claims (including the authority settlement thereof) made by a Parent Indemnified Party for indemnification pursuant to this ARTICLE IX and with respect to any actions to be taken by the Shareholders' Representative pursuant to the terms of the Escrow Agreement (including, without limitation, the exercise of the power to (i) authorize the delivery of certain amounts in the Escrow Fund to perform the obligations a Parent Indemnified Party in satisfaction of the Shareholders’ Representative set forth in this Agreement and the Option Agreementclaims by a Parent Indemnified Party, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur comply with orders of courts with respect to any other reasonable expenses, in connection with, claims for indemnification and to (iii) take all actions necessary or appropriate in the judgment of the Shareholders’ ' Representative for the accomplishment ofof the foregoing). In all matters relating to this ARTICLE IX, any or the Shareholders' Representative shall be the only party entitled to assert the rights of the Holders, and the Shareholders' Representative shall perform all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest obligations of the shares of Everest of the Selling Holders hereunder. The Parent Indemnified Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required entitled to rely on all statements, representations and decisions of the Shareholders’ ' Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel Holders shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented bound by counsel or other professionals retained by it, and any action all actions taken by the Shareholders’ ' Representative based in his, her or its capacity thereof, except for any action that conflicts with the limitations set forth in subsection (d) below. The Shareholders' Representative shall promptly, and in any event within five business days, provide written notice to the Holders of any action taken on such reliance behalf of them by the Shareholders' Representative pursuant to the authority delegated to the Shareholders' Representative under this SECTION 9.05. The Shareholders' Representative shall at all times act in his or her capacity as Shareholders' Representative in a manner that the Shareholders' Representative believes to be in the best interest of the Holders. Neither the Shareholders' Representative nor any of its directors, officers, agents or employees, if any, shall be deemed conclusively liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement or the Escrow Agreement, except in the case of its gross negligence, bad faith or willful misconduct. The Shareholders' Representative may consult with legal counsel, independent public accountants and other experts selected by it. The Shareholders' Representative shall not have been taken any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the Escrow Agreement. As to any matters not expressly provided for in good faiththis Agreement or the Escrow Agreement, the Shareholders' Representative shall not exercise any discretion or take any action.
(c) Notwithstanding Each of the foregoing provisions in this ARTICLE VIIIHolders shall indemnify and hold harmless and reimburse the Shareholders' Representative from and against such Holder's ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholders' Representative arising out of or resulting from any provision action taken or omitted to be taken by the contrary set forth in Shareholders' Representative under this Agreement or the Option Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Shareholders' Representative's gross negligence, bad faith or willful misconduct.
(d) Notwithstanding anything to the contrary herein (other than as set forth in SECTION 2.05(e)(i) and (ii)) or in the Escrow Agreement, the Shareholders’ ' Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and is not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)authorized to, and the powers conferred shall not, accept on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative behalf of any Holder any Transaction Consideration to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to which such Holder is entitled under this Agreement and the Option Agreement, (ii) alters the consideration payable to Shareholders' Representative shall not in any Selling Party pursuant to this Agreement or the Option Agreementmanner exercise, or (iii) adds seek to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubtexercise, any change to the nature of the indemnity obligations), in each case voting power whatsoever with respect to clauses (i), (ii) and (iii) shares of this Section 8.1(c), without first obtaining the prior written approval capital stock of the Selling PartiesCompany or Parent now or hereafter owned of record or beneficially by any Holder unless the Shareholders' Representative is expressly authorized to do so in a writing signed by such Holder.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesCompany Shareholders hereby irrevocably constitute and appoint Mr. ▇▇▇▇▇ ▇▇▇▇▇ (the “Shareholders’ Representative”) as the true and lawful agent and attorney-in-fact of the Company Shareholders, with full powers of substitution to act individually in the name, place and stead of the Company Shareholders with respect to the transactions contemplated by adopting this Agreement and the other Transaction Documents, as the same may be from time to time amended, and to individually do or refrain from doing all such further acts and things, and to execute all such documents, as he shall deem necessary or appropriate in connection with any of the transactions contemplated hereby. Without limiting the generality of the foregoing, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative shall have the full and exclusive authority to (i) agree with Buyer with respect to any matter or thing required or deemed necessary by the Shareholders’ Representative in connection with the provisions of this Agreement calling for the agreement of the Company Shareholders, give and receive notices on behalf of the Selling PartiesCompany Shareholders, and act on behalf of the Company Shareholders in connection with any matter as to which the authority (i) to perform Company Shareholders or Principal Shareholders are or may be obligated under this Agreement or any of the obligations other Transaction Documents, all in the absolute discretion of the Shareholders’ Representative set forth in this Agreement and the Option AgreementRepresentative, (ii) to give and receive notices and communicationsexecute the Escrow Agreement on behalf of the Company Shareholders, (iii) to agree toin general, negotiatedo all things and perform all acts, enter into including executing and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreementdelivering all agreements, (iv) to retain legal counselcertificates, accountantsreceipts, consultants consents, elections, instructions, and other expertsinstruments or documents contemplated by, and incur any other reasonable expenses, or deemed by the Shareholders’ Representative to be necessary or advisable in connection with, this Agreement or any Transaction Document, including any amendments hereto or thereto and to (iv) take all actions necessary or appropriate desirable in connection with the judgment defense or settlement of any indemnification claims pursuant to Article VIII (including the selection of counsel) and performance of obligations of the Shareholders’ Representative for the accomplishment of, any Company Shareholders or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including to withhold funds for satisfaction of expenses or other liabilities or obligations or to withhold funds for potential indemnification claims made hereunder. All decisions by the Shareholders’ Representative shall be binding upon all the Company Shareholders, and no Company Shareholder shall have the right to object, dissent, protest or otherwise contest the same. The Shareholders’ Representative may communicate with any Company Shareholder or any other Person concerning his responsibilities hereunder, but is not required to do so. The Shareholders’ Representative has a duty to serve in electronic formgood faith the interests of the Company Shareholders as appropriate, and to perform his designated role under this Agreement, but, except as specifically provided herein, the Shareholders’ Representative shall have no financial liability whatsoever to any other Company Shareholder relating to his service hereunder (including any action taken or omitted to be taken), except that he shall be liable for harm which he directly causes by an act of willful misconduct. Buyer shall be entitled to rely exclusively upon any communication given by the Shareholders’ Representative and shall not be liable in any manner whatsoever for any action taken or not taken in reliance upon the Shareholders’ Representative. Any payments made, at the Shareholders’ Representative’s request and instruction, by Buyer to the Shareholders’ Representative pursuant to the terms of this Agreement shall fully discharge Buyer from any liability to the Company Shareholders in connection with such payment, as fully and completely as if such payment had been made directly to the Company Shareholders. Buyer hereby agrees to accept and rely on the actions of the Shareholders’ Representative as if it were the action of a Company Shareholder or the Company Shareholders.
(b) The Shareholders’ Representative shall will not be liable for entitled to receive any act done compensation from Buyer or omitted hereunder the Company Shareholders in connection with performing his functions as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling PartiesAgreement. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements Any out-of-pocket costs and opinions prepared or presented by counsel or other professionals retained by it, and any action taken expenses reasonably incurred by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been in connection with actions taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision pursuant to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision terms of this Agreement or will be paid by the Option Agreement) that (i) results in the amounts payable hereunder Company Shareholders as agreed to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesby them.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesIn order to administer efficiently the rights and obligations of the Shareholders under this Agreement, by adopting this Agreement the Shareholders hereby designate and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser ▇▇▇▇▇▇ ▇▇▇▇▇ as the Shareholders’ Representative (the “Shareholders’ Representative”) to serve as the Shareholders’ agent and attorney-in-fact for and on behalf the limited purposes set forth in this Agreement.
(b) Each of the Selling PartiesShareholders hereby appoints the Shareholders’ Representative as such Shareholder’s agent, proxy and attorney-in-fact, with full power of substitution, for all purposes set forth in this Agreement, including, without limitation, the full power and authority on such Shareholder’s behalf (i) to perform consummate the obligations of the Shareholders’ Representative set forth in transactions contemplated by this Agreement and the Option Agreement, ; (ii) to give and receive notices and communications, disburse any funds received hereunder to the Shareholders; (iii) to agree to, negotiate, enter into execute and provide amendments and supplements to and waivers in respect deliver on behalf of each Shareholder any amendment of or waiver under this Agreement and the Option Agreement, and to agree to resolution of all Claims hereunder; (iv) to retain legal counsel, accountants, consultants counsel and other expertsprofessional services, and incur any other reasonable expensesat the expense of the Shareholders, in connection with, and to take all actions necessary or appropriate in with the judgment of performance by the Shareholders’ Representative for the accomplishment of, any or of this Agreement including without limitation all actions taken on behalf of the foregoing. K Laser hereby accepts its appointment Shareholders as an Indemnifying Party pursuant to Section 10.3; and (v) to do each and every act and exercise any and all rights which such Shareholder or Shareholders are permitted or required to do or exercise under this Agreement and the other agreements, documents and certificates executed in connection herewith (including without limitation initialing on the Shareholders’ Representativebehalf acceptance of WCI’s disclaimers of warranty in Section 4.7). Such agency may be changed by the holders of a majority in interest Each of the shares of Everest of Shareholders agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of shall survive the death, bankruptcy or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance other incapacity of any Shareholder.
(c) Each of its powers, rights, duties the Shareholders hereby agrees that any amendment or privileges waiver under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by itAgreement, and any action taken on behalf of the Shareholders to enforce the rights of the Shareholders under this Agreement, and any action taken with respect to any Claim (including any action taken to object to, defend, compromise or agree to the payment of such Claim), shall be effective if approved in writing by the Shareholders’ Representative based on such reliance Representative, and that STOCK PURCHASE AGREEMENT HLE each and every action so taken shall be deemed conclusively to have been taken in good faithbinding and conclusive on every Shareholder, whether or not such Shareholder had notice of, or approved, such amendment or waiver.
(cd) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, ▇▇▇▇▇▇ ▇▇▇▇▇ shall serve as the Shareholders’ Representative until he resigns or is otherwise unable or unwilling to serve. In the event that a Shareholders’ Representative resigns from such position or is otherwise unable or unwilling to serve, the remaining Shareholders shall only have select, by the power or authority to act with respect to matters pertaining vote of the holders of a majority of the Corporation’s Stock immediately prior to the Selling Parties as Closing, a group successor representative to fill such vacancy, shall provide prompt written notice to WCI of such change and not matters pertaining such substituted representative shall then be deemed to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on be the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision for all purposes of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Stock Purchase Agreement (Waste Connections Inc/De)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Each Shareholder hereby irrevocably appoint appoints the Shareholders Representative as agent and constitute K Laser as the Shareholders’ Representative attorney-in-fact for each such Shareholder, for and on behalf of the Selling Partieseach such Shareholder, with the full power and authority (i) to perform the obligations of the Shareholders’ Representative set forth in represent each Shareholder and such Shareholder’s successors and assigns with respect to all matters arising under this Agreement and the Option Escrow Agreement, (ii) and all actions taken by the Shareholders Representative under this Agreement or the Escrow Agreement will be binding upon each such Shareholder and such Shareholder’s successors and assigns as if expressly ratified and confirmed in writing by each of them. Without limiting the generality of the foregoing, the Shareholders Representative has full power and authority, on behalf of each Shareholder and such Shareholder’s successors and assigns, to give interpret the terms and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect provisions of this Agreement, to dispute or fail to dispute any Liability Claim under this Agreement or the Escrow Agreement, to negotiate and compromise any dispute that may arise under this Agreement or the Escrow Agreement and to sign any releases or other documents with respect to such dispute. A Shareholder will be deemed a party or a signatory to any agreement, document, instrument or certificate for which the Option AgreementShareholders Representative signs on behalf of such Shareholder. All decisions, (iv) actions and instructions by the Shareholders Representative, including the defense or settlement of any claims for which the Shareholders may be required to retain legal counselindemnify the Buyer Indemnitees pursuant to ARTICLE IX, accountantswill be conclusive and binding on each Shareholder and no Shareholder has the right to object, consultants dissent, protest or otherwise contest the same. The Shareholders jointly and other experts, and incur any other reasonable expenses, in connection withseverally agree to pay, and to take all actions necessary or appropriate in hold harmless the judgment of the Shareholders’ Representative for the accomplishment ofBuyer Indemnitees from and against, any Liabilities or all of losses that the foregoing. K Laser hereby accepts its appointment Buyer Indemnitees may suffer or sustain as the Shareholders’ Representative. Such agency may be changed result of any claim by any Person that an action taken by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Shareholders Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of the Shareholders is not binding on, or enforceable against, the Shareholders. Buyer has the right to rely conclusively on the instructions and decisions of the Shareholders Representative as to the settlement of any Selling Partiesclaims for indemnification by Buyer pursuant to ARTICLE IX, or any other actions required or permitted to be taken by the Shareholders Representative hereunder, and no party hereto will have any cause of action against Buyer for any action taken by Buyer in reliance upon the instructions or decisions of the Shareholders Representative. The Shareholders’ appointment of the Shareholders Representative may in good faith rely conclusively upon the information, reports, statements is an agency coupled with an interest and opinions prepared or presented by counsel or other professionals retained by it, is irrevocable and any action taken by the Shareholders’ Shareholders Representative based on such reliance shall be deemed conclusively pursuant to have been taken in good faith.
(c) Notwithstanding the foregoing provisions authority granted in this ARTICLE VIIISection 11.2 is binding upon the executors, or heirs, legal representatives and successors of each Shareholder, and any provision to the contrary set forth references in this Agreement to a Shareholder or the Option Agreement, Shareholders means and includes the successors to the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitationrights hereunder, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted whether pursuant to this Agreement testamentary disposition, the laws of descent and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement distribution or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesotherwise.
Appears in 1 contract
Shareholders’ Representative. (a) The Each of the Shareholders hereby appoints and constitutes ▇▇▇ ▇▇▇▇▇▇▇▇ (the “Shareholders’ Representative”) as its true and lawful agent and attorney-in-fact, with full power of substitution and resubstitution, to act for and on behalf of such Shareholder for the purpose of taking any and all actions by such Selling PartiesParty specified in or contemplated by this Agreement, by adopting including as agent and attorney-in-fact for such Shareholder (i) in connection with any amendment or waiver of any provision of this Agreement pursuant to Section 10.6; (ii) in connection with the receipt of all agreements, certificates and other documents to be delivered by Purchaser at the transactions contemplated herebyClosing pursuant to Section 2.2(b); (iii) for the purpose of giving and receiving notices on behalf of such Shareholder under this Agreement; and (iv) for the purpose of defending, compromising or settling all indemnity claims pursuant to Article 9, and conducting negotiations with Purchaser under this Agreement. The Shareholders’ Representative hereby irrevocably appoint and constitute K Laser accepts his appointment as the Shareholders’ Representative hereunder and agrees that he will not be entitled to any fee or other compensation for and on behalf the performance of the Selling PartiesShareholders’ Representative’s services hereunder.
(b) Any decision, with the authority (i) to perform the obligations act, consent or instruction of the Shareholders’ Representative set forth in under this Agreement will constitute a decision of each Shareholder and the Option Agreementwill be final, (ii) to give binding and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertsconclusive upon each Shareholder, and incur Purchaser will be entitled to rely upon any other reasonable expensessuch decision, in connection withact, and to take all actions necessary consent or appropriate in the judgment instruction of the Shareholders’ Representative for as being the accomplishment ofdecision, act, consent or instruction of each Shareholder.
(c) The limited power of attorney granted hereby is coupled with an interest and will (i) survive and not be affected by the subsequent death, incapacity, disability, dissolution, termination or bankruptcy, as applicable, of any or all Shareholder, and (ii) extend to the successors, assigns, heirs, executors, administrators, legal representatives and beneficiaries, as applicable, of the foregoing. K Laser each Shareholder.
(d) Each Shareholder hereby accepts its appointment as agrees to indemnify, defend and hold harmless the Shareholders’ Representative. Such agency may be changed by Representative from and against any and all loss, liability or expense (including the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties reasonable fees and to Parent and Purchaser. No bond shall be required expenses of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b’s attorneys) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance any act or administration failure to act of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative hereunder, except to expend the extent that such loss, liability or risk its own funds expense is finally adjudicated to have been primarily caused by the gross negligence or otherwise incur any financial liability in the exercise or performance willful misconduct of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithRepresentative.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesShareholders’ Representative shall act as the representative of the Shareholders and shall be authorized to act on behalf of such holders, and to take any and all actions required or permitted to be taken by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of under this Agreement or the Selling PartiesEscrow Agreement, including, without limitation, with respect to any claims (including the authority (isettlement thereof) made by a Buyer Indemnified Party for indemnification pursuant to perform the obligations of this Article 8 and with respect to any actions to be taken by the Shareholders’ Representative set forth in this pursuant to the terms of the Escrow Agreement and (including, without limitation, the Option Agreement, exercise of the power to: (iii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into settlements and provide amendments compromises of, and supplements comply with orders of courts with respect to any settlement of the Final Work Capital Amount; (ii) authorize the delivery of certain amounts in the Escrow Funds to a Buyer Indemnified Party in satisfaction of claims by a Buyer Indemnified Party; (iii) agree to, negotiate, enter into settlements and waivers in compromises of, and comply with orders of courts with respect of this Agreement and the Option Agreement, to any claims for indemnification; (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing); (v) incur and be reimbursed for any Representative Expenses, which amounts shall be payable from the Indemnity Escrow Fund in accordance with Section 8.3(c) below; (vi) reserve from the Indemnity Escrow Amount to be dispersed to the former shareholders of the Company a reasonable estimate of the expenses necessary to resolve any amounts that are the subject of or could become the subject of a dispute; (vii) amend this Agreement or execute any amendment to this Agreement pursuant to Section 7.3 hereof; and (viii) waive or extend any term of this Agreement pursuant to Section 7.4 hereof. K Laser hereby accepts its appointment as In all matters relating to this Article 8, the Shareholders’ Representative shall be the only party entitled to assert the rights of the Shareholders. The Buyer Indemnified Parties shall be entitled to rely on all statements, representations and decisions of the Shareholders’ Representative. Such agency .
(b) The individual serving as Shareholders’ Representative may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties replaced from time to time by Shareholders representing at least a majority of the Indemnity Escrow Amount calculated on the basis of such Shareholders’ Pro Rata Share of the Indemnity Escrow Amount upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaserthe Indemnity Escrow Agent. No bond shall be required of the Shareholders’ Representative, and Shareholders’ Representative shall receive no compensation for his services, except as may be paid by the Company (from its own funds) on or before the Effective Time or otherwise accounted for as a Company Transaction Expense. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(bc) The In performing the functions specified in this Agreement, Shareholders’ Representative shall not be liable for to any act done Shareholder in the absence of gross negligence or omitted hereunder as willful misconduct on the part of Shareholders’ Representative. Each Shareholder shall severally (based on each such Shareholder’s Pro Rata Share of the Indemnity Escrow Amount), and not jointly, indemnify and hold harmless Shareholders’ Representative while acting in good faith from and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith willful misconduct on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by Shareholders’ Representative. No provision Any out of this Agreement shall require the pocket costs and expenses reasonably incurred by Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The connection with actions taken by Shareholders’ Representative may in good faith rely conclusively upon pursuant to the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by terms of this Section 8.3 (the “Representative Expenses”) will be paid to Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
from the Indemnity Escrow Amount at the time of the distribution of any remaining portion of the Indemnity Escrow Amount and the final determination of any claims for indemnity, provided that (ci) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority deliver to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), Buyer and the powers conferred on the Shareholders’ Indemnity Escrow Agent a written request for payment of such Representative herein Expenses prior to such payment (which written request shall include reasonable documentation in reasonable detail supporting such Representative Expenses) and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to there is any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature remaining amount of the Indemnity Escrow Amount following full payment of all indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesclaims hereunder.
Appears in 1 contract
Sources: Arrangement Agreement (ORBCOMM Inc.)
Shareholders’ Representative. (a) In order to administer efficiently the defense and/or settlement of any claims for which the Shareholders may be required to indemnify Metz▇▇▇ ▇▇ the Surviving Corporation pursuant to Section 5.3 hereof, the Shareholders hereby designate Lloy▇ ▇. ▇▇▇▇▇▇▇ ▇▇ their representative (the "SHAREHOLDERS' REPRESENTATIVE").
(b) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Shareholders hereby irrevocably appoint and constitute K Laser as authorize the Shareholders’ ' Representative for and on behalf of the Selling Parties, with the authority (i) to perform upon the obligations receipt of instructions of the Shareholders’ Representative set forth Shareholders representing a majority of Pro Rata Percentages, to take all action necessary in this Agreement and connection with the Option Agreementdefense and/or settlement of any claims for which the Shareholders may be required to indemnify Metz▇▇▇ ▇▇▇/or the Surviving Corporation pursuant to Section 5.3 hereof, (ii) to give and receive all notices required to be given and communicationstake all action required or permitted to be taken under this Agreement and the other agreements contemplated hereby to which all the Shareholders are parties, including the Escrow Agreement ("OTHER AGREEMENTS"), and (iii) to agree to, negotiate, enter into take any and provide amendments and supplements all additional action as is contemplated to and waivers in respect be taken by or on behalf of the Shareholders by the terms of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithOther Agreements.
(c) Notwithstanding Upon receiving notice of the foregoing provisions death or incapacity of the Shareholders' Representative, the Shareholders (who shall be deemed to include any successor in this ARTICLE VIIIinterest to any Shareholder, including a successor in interest to the stock holdings of the Shareholders' Representative) shall by majority vote (based on their Pro Rata Percentages) appoint a successor to fill the vacancy. The Shareholders may by such majority vote remove the Shareholders' Representative with or without cause and appoint a successor, provided that notice thereof is given by the new Shareholders' Representative to each of the other Parties hereto (including Metz▇▇▇) ▇▇d to the Escrow Agent. The Shareholders' Representative may resign if, and only if, he is simultaneously replaced with a substitute Shareholders' Representative, or upon the termination of the Escrow Agreement pursuant to its terms. (d) By their execution of this Agreement, the Shareholders agree that:
(i) Notwithstanding any other provision herein to the contrary set forth contrary, Metz▇▇▇ ▇▇▇ll be able to rely conclusively on the instructions and decisions of the Shareholders' Representative as to the settlement of any claims for indemnification by Metz▇▇▇ ▇▇ the Surviving Corporation pursuant to Section 5.3 hereof or any other actions required to be taken by the Shareholders' Representative hereunder, and no Party hereunder shall have any cause of action against Metz▇▇▇ ▇▇ the Surviving Corporation for any action taken by Metz▇▇▇ ▇▇ the Surviving Corporation in reliance upon the instructions or decisions of the Shareholders' Representative.
(ii) all actions, decisions and instructions of the Shareholders' Representative, including the defense or settlement of any claims for which the Shareholders may be required to indemnify Metz▇▇▇ and/or the Surviving Corporation pursuant to Section 5.3 hereof, shall be conclusive and binding upon all of the Shareholders, and no Shareholder shall have any right to object, dissent, protest or otherwise contest the same or have any cause of action against the Shareholders' Representative for any action taken, decision made or instruction given by the Shareholders' Representative under this Agreement, except for willful misconduct (which shall include fraud), gross negligence or breach by the Shareholders' Representative of his obligations as such Representative; (iii) the provisions of this Subsection 2.12 are independent and severable, are irrevocable and shall be enforceable notwithstanding any rights or remedies that any Shareholder may have in connection with the transactions contemplated by this Agreement; (iv) remedies available at law for any breach of the provisions of this Subsection 2.12 are inadequate; therefore, Metz▇▇▇, the Surviving Corporation and the Shareholders' Representative shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either Metz▇▇▇, ▇▇e Surviving Corporation or the Shareholders' Representative brings an action to enforce the provisions of this Subsection 2.12; and (v) the provisions of this Subsection 2.12 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Shareholder, and any references in this Agreement to a Shareholder or the Option AgreementShareholders shall mean and include the successors to the Shareholders' rights hereunder, whether pursuant to assignment, testamentary disposition, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way laws of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)descent, and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize distribution or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesotherwise.
Appears in 1 contract
Sources: Merger Agreement (Metzler Group Inc)
Shareholders’ Representative. (a) The Selling Parties, 12.1 Each Shareholder by adopting virtue of the approval and adoption of this Agreement and the transactions contemplated hereby, hereby irrevocably or by accepting any consideration payable hereunder shall be deemed to have agreed to appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling PartiesShareholders to do or refrain from doing all further acts and things, with the authority (i) and to perform the obligations of execute all such documents, as the Shareholders’ Representative set forth in shall deem necessary or appropriate. Upon and subject to the terms of this Agreement, the Shareholders’ Representative shall have the power and authority to:
12.1.1 act for the Shareholders with regard to all matters pertaining to this Agreement or any of the other Transaction Documents to which the Company, any of its Subsidiaries or a Shareholder (in such capacity) is a party;
12.1.2 act for the Shareholders to transact matters of litigation, disputes or proceedings pertaining to this Agreement or any of the other Transaction Documents to which the Company, any of its Subsidiaries or a Shareholder (in such capacity) is a party;
12.1.3 execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Option AgreementShareholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement or any of the other Transaction Documents to which the Company, any of its Subsidiaries or a Shareholder (iiin such capacity) is a party;
12.1.4 receive funds, make payments of funds, and give receipts for funds;
12.1.5 do or refrain from doing, on behalf of the Shareholders, any further act or deed that the Shareholders’ Representative deems necessary or appropriate in the Shareholders’ Representative’s discretion relating to the subject matter of this Agreement or any of the other Transaction Documents to which the Company, any of its Subsidiaries or a Shareholder (in such capacity) is a party, in each case as fully and completely as the Shareholders could do in such circumstance;
12.1.6 give and receive all notices and communicationsrequired to be given or received by the Shareholders under this Agreement or any of the other Transaction Documents to which the Company, any of its Subsidiaries or a Shareholder (iiiin such capacity) is a party;
12.1.7 give any written direction that can be given by any Shareholder under the terms of this Agreement or any of the other Transaction Documents to which the Company, any of its Subsidiaries or a Shareholder (in such capacity) is a party;
12.1.8 agree to, negotiate, enter into settlements and provide amendments compromises and/or comply with arbitration awards and supplements court orders with respect to and waivers claims for indemnification made by an Acquiror Company Indemnified Person under Section X; and
12.1.9 receive service of process in respect of connection with any claims under this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur and/or any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for other Transaction Documents to which the accomplishment ofCompany, any of its Subsidiaries or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representativea Shareholder (in such capacity) is a party. Such agency may be changed by the holders Shareholders from time-to-time with the consent of the Shareholders holding a majority of the Acquiror Company Shares then outstanding. Notwithstanding the foregoing, the Shareholders’ Representative may resign at any time by providing written notice of intent to resign to the Shareholders, which resignation shall be effective upon thirty (30) calendar days following delivery of such written notice or the appointment of a successor by the Shareholders holding a majority in interest of the shares of Everest Acquiror Company Shares then outstanding. If the Shareholders’ Representative shall be removed, resign or otherwise be unable to fulfill its responsibilities hereunder, the Shareholders holding a majority of the Selling Parties from time Acquiror Company Shares then outstanding shall appoint a successor to time upon not less than ten (10) daysthe Shareholders’ prior written notice to all Representative, and shall promptly thereafter notify Acquiror Company of the Selling Parties and to Parent and Purchaseridentity of such successor. Any such successor shall succeed the former Shareholders’ Representative as the Shareholders’ Representative hereunder. No bond shall be required of the Shareholders’ Representative. Notices A decision, act, consent or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each instruction of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The an amendment, extension or waiver of this Agreement pursuant to its authority hereunder, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders, and the Shareholders shall be deemed to have waived all defenses which may otherwise be available to the Shareholders to contest, negate or disaffirm the action of the Shareholders’ Representative taken in good faith under this Agreement.
12.2 By executing this Agreement under the heading “Shareholders’ Representative,” the Shareholders’ Representative hereby (i) accepts its appointment and authorization to act as Shareholders’ Representative as attorney-in-fact and agent on behalf of the Shareholders in accordance with the terms of this Agreement and (ii) agrees to perform its obligations under, and otherwise comply with, this Section XII.
12.3 Neither the Shareholders’ Representative nor its members, managers, directors, officers, contractors, agents and employees (collectively, the “Shareholders’ Representative Group”) shall not be liable to any former Shareholder for any act done or omitted hereunder as the Shareholders’ Representative while acting in good without gross negligence or willful misconduct or bad faith and without negligence (and any act done or omitted pursuant to the bona fide good faith advice of counsel counsel, accountants and other professionals and experts retained by the Shareholders’ Representative shall be conclusive evidence of such good faith and absence of negligencefaith). The Selling Parties To the fullest extent permitted by applicable Laws, the Shareholders shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative Group and defend and hold it harmless against any loss, liability liability, claim, damage, fee, fine, cost, judgment, amount paid in settlement or expense incurred without gross negligence negligence, willful misconduct or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his its duties hereunder. No provision of this Agreement shall require , including any out-of-pocket costs and expenses and legal fees and other legal and skilled professionals’ costs reasonably incurred by the Shareholders’ Representative and in connection with seeking recovery from insurers. The Shareholders acknowledge that the Shareholders’ Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under or administration of its duties. Furthermore, the Shareholders’ Representative shall not be required to take any action unless the Shareholders’ Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Shareholders’ Representative against the costs, expenses and liabilities which may be incurred by the Shareholders’ Representative in performing such actions. The Shareholders’ Representative shall only have the duties expressly stated in this Agreement on behalf of any Selling Partiesand shall have no other duty, express or implied. The Shareholders’ 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 Shareholders’ Representative may deem necessary or desirable. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by itsuch professionals, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding 12.4 All of the foregoing provisions in this ARTICLE VIII, or any provision immunities granted to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative under this Agreement shall only have survive his resignation or removal and the power or Closing and/or any termination of this Agreement. The grant of authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (provided for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)Section XII, and the powers conferred on and immunities granted to the Shareholders’ Representative herein hereunder are coupled with an interest and in shall be irrevocable and survive the Option Agreement shall not authorize death, incompetence, bankruptcy or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature liquidation of the indemnity obligations), in each case with respect to clauses (i), (ii) respective Shareholder and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesshall be binding on any successor thereto.
Appears in 1 contract
Sources: Share Exchange Agreement (Inspyr Therapeutics, Inc.)
Shareholders’ Representative. (a) The Selling PartiesEach Employee Shareholder does hereby appoint ▇▇▇▇▇▇ as such Employee Shareholder’s true and lawful attorney-in-fact and agent (the “Shareholders’ Representative”), by adopting to act on behalf of such Employee Shareholder in any litigation, arbitration or other matter involving this Agreement Agreement, to do or refrain from doing all such further acts and the transactions contemplated herebythings, hereby irrevocably appoint and constitute K Laser to execute all such Contracts, certificates and other documents as the Shareholders’ Representative for and on behalf of the Selling Parties, shall deem necessary or appropriate in connection with the authority transactions contemplated by this Agreement, including, the power:
(i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, ;
(ii) to receive funds and give receipts therefor;
(iii) to receive service of process with respect to any claim under this Agreement;
(iv) to agree to, negotiate, execute and deliver Contracts, documents and instruments;
(v) to assert, negotiate, enter into settlements and provide amendments compromises of, and supplements to demand arbitration and waivers in comply with orders of courts and awards of arbitrators with respect of this Agreement to, any other claim by any Buyer Indemnified Party against any Employee Shareholder or by any such Employee Shareholder against the Buyer or any dispute between any Buyer Indemnified Party and the Option Agreement, any such Employee Shareholder; and
(ivvi) to retain legal counsel, accountants, consultants and take or refrain from taking all other expertsaction, and incur any other reasonable expensesexecute and deliver all additional Contracts, in connection withdocuments, certificates and to take all actions instruments, as the Shareholders’ Representative may deem necessary or appropriate in connection with the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representativetransactions contemplated by this Agreement. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Employee Shareholders from time to time upon not less than ten (10) days’ 10 days prior written notice to all the Buyer; provided, however, that the Shareholders’ Representative may not be removed unless a majority in interest (based on the aggregate number of Shares held by the Employee Shareholders at the Closing) of the Selling Parties Employee Shareholders agree to such removal and to Parent and Purchaserthe identity of the substituted agent. A vacancy in the position of the Shareholders’ Representative may be filled by the affirmative vote of a majority in interest (based on the aggregate number of Shares held by the Employee Shareholders at the Closing) of the Employee Shareholders. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall not receive any compensation for his services. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Employee Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable to the Employee Shareholders for any lawful and proper act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to in the advice of counsel shall be conclusive evidence of such good faith and absence of negligencefraud, gross negligence or willful misconduct. The Selling Parties Employee Shareholders shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it the Shareholders’ Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his the Shareholders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative. No provision A decision, act, consent or instruction of the Shareholders’ Representative, including to an amendment, extension or waiver of this Agreement pursuant to Section 7.02, shall require constitute a decision of the Employee Shareholders and shall be final, binding and conclusive upon the Employee Shareholders; and the Buyer may conclusively and absolutely, rely, without any inquiry, upon any such decision, act, consent or instruction of the Shareholders’ Representative to expend as being the decision, act, consent or risk its own funds or otherwise incur any financial liability in instruction of the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling PartiesEmployee Shareholders. The Shareholders’ Representative may Buyer and the Company are hereby relieved from any liability to any Person, including any Employee Shareholder, for any acts done by them in good faith rely conclusively upon the informationaccordance with or reliance on such decision, reportsact, statements and opinions prepared consent or presented by counsel or other professionals retained by it, and any action taken by instruction of the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithRepresentative.
(c) Notwithstanding The authority granted hereunder is deemed to be coupled with an interest.
(d) All notices or other communications required to made or delivered by the foregoing provisions in this ARTICLE VIII, or any provision Buyer to the contrary set forth in this Agreement or the Option Agreement, Employee Shareholders shall be made to the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature benefit of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesEmployee Shareholders.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting Each of the Sellers hereby appoints the Shareholders’ Representative as its representative in respect of all matters arising under this Agreement or the Transactions, and the transactions contemplated herebyShareholders’ Representative is and shall be authorized by each Seller to act, hereby irrevocably appoint and constitute K Laser or refrain from acting, with respect to any actions to be taken by or on behalf of any Seller or the Shareholders’ Representative, including to enforce any rights granted to any Seller hereunder, in each case as the Shareholders’ Representative believes is necessary or appropriate under this Agreement and the Ancillary Agreements, for and on behalf of the Selling PartiesSellers. The Sellers shall be bound by all such actions taken by the Shareholders’ Representative and no Seller shall be permitted to take any such actions. The Shareholders’ Representative shall not be liable to the Sellers for any error of judgment, or any action taken, suffered or omitted to be taken, in connection with the authority (i) to perform performance by the obligations Shareholders’ Representative of the Shareholders’ Representative’s duties or the exercise by the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for Representative’s rights and remedies under this Agreement or any Transaction Agreement, except in the accomplishment of, any case of its bad faith or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaserwillful misconduct. No bond shall be required of the Shareholders’ Representative. Notices The Shareholders’ 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 communications omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or from experts. The Shareholders’ Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or any Ancillary Agreement. Without limiting the generality of the foregoing, the Shareholders’ Representative shall have the full power and authority to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under interpret all the terms and provisions of this Agreement and the Ancillary Agreements, and to consent to any waiver or applicable law. Each Selling Party agrees amendment hereof or thereof on behalf of all Sellers and their respective successors, unless such waiver or amendment will be disproportionately adverse to receive correspondence from a Seller relative to another Seller, in which case any such waiver or amendment shall require the consent of such Seller; provided that, the Shareholders’ RepresentativeRepresentative shall not have the authority to consent to any waiver or amendment on behalf of Highlander with respect to Section 7.02(e). Purchaser shall be entitled to rely on all statements, including in electronic formrepresentations, decisions of, and actions taken or omitted to be taken by, the Shareholders’ Representative relating to this Agreement or any Ancillary Agreement.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as Sellers will indemnify and hold harmless the Shareholders’ Representative while acting in good faith from and without negligence against any and any act done all costs or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith expenses (including reasonable legal fees and absence of negligence. The Selling Parties shall severally (and not jointlydisbursements), according to each Selling Parties’ pro-rata interest in the shares of Everestjudgments, indemnify the Shareholders’ Representative and hold it harmless against any lossfines, liability losses, damages, taxes or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and liabilities (“Losses”) arising out of or in connection with the acceptance or administration of his duties hereunder. No provision Shareholders’ Representative’s execution and performance of this Agreement shall require and the Ancillary Agreements, in each case as such Loss is suffered or incurred; provided that in the event that any such Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Shareholders’ Representative, the Shareholders’ Representative will reimburse the Sellers the amount of such indemnified Loss to expend the extent attributable to such gross negligence or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Partieswillful misconduct. The Shareholders’ Representative may in good faith rely conclusively upon shall be entitled to reimbursement by the informationSellers on a pro rata basis for all reasonable expenses, reportsdisbursements and advances (including fees and disbursements of its counsel, statements experts and opinions prepared or presented by counsel or other professionals retained by it, agents and any action taken consultants) incurred by the Shareholders’ Representative based on in such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, capacity. In no event will the Shareholders’ Representative shall only have be required to advance its own funds on behalf of the power Sellers or authority to act with respect to matters pertaining to otherwise. The Sellers acknowledge and agree that the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way foregoing indemnities will survive the resignation or removal of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in or the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision termination of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Business Combination Agreement (Magnum Opus Acquisition LTD)
Shareholders’ Representative. (a) The Selling PartiesBy virtue of the adoption of this Agreement by the Shareholders, by adopting and without further action of any Shareholder, each Shareholder shall be deemed to have acknowledged and agreed that the Shareholders’ Representative shall have full power and authority to take all actions under this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) Escrow Agreement that are to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed taken by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including retaining counsel, accountants and other agents, representatives and experts, incurring fees and expenses, asserting or pursuing any claim against Buyer, defending any claims by Buyer or any Third Party Claim, consenting to, compromising or settling any such claims, conducting negotiations with Buyer and its representatives regarding such claims, it being understood that the Shareholders’ 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. All decisions and actions by the Shareholders’ Representative (to the extent authorized by this Agreement) shall be binding upon all the Shareholders, and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same; provided, however, that the Shareholders’ Representative shall not take any such action where (i) any single Shareholder would be held solely liable for any actual losses, out-of-pocket costs or expenses, liabilities or other damages (without such Shareholder’s prior written consent) or (ii) such action materially and adversely affects the substantive rights or obligations of one Shareholder, or group of Shareholders, without a similar proportionate effect upon the substantive rights or obligations of all the Shareholders, unless each such disproportionately affected Shareholder consents in electronic formwriting thereto.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part By virtue of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision adoption of this Agreement shall require by the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance , and without further action of any of its powersShareholder, rights, duties or privileges under this Agreement each Shareholder agrees that Buyer shall be entitled to rely on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken or omission to act by the Shareholders’ Representative based Representative, on behalf of such reliance Shareholder, pursuant to Section 11.2(a), and that such action or omission shall be deemed conclusively to have been binding on each Shareholder as fully as if such Shareholder had taken in good faithsuch action or omission.
(c) Notwithstanding All of the foregoing provisions in this ARTICLE VIIIindemnities, or any provision immunities and powers granted to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative under this Agreement shall only survive the Closing Date.
(d) A majority of ▇▇. ▇▇▇▇ and the Beneficiaries shall have the power right at any time to remove the then-acting Shareholders’ Representative and to appoint a successor Shareholders’ Representative; provided, however, that neither such removal of the then acting Shareholders’ Representative nor such appointment of a successor Shareholders’ Representative shall be effective until the delivery to the Escrow Agent and Buyer of executed counterparts of a writing signed by each such Shareholder or authority to act Beneficiary with respect to matters pertaining to such removal and appointment, together with an acknowledgement signed by the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the successor Shareholders’ Representative herein and appointed in such writing that he, she or it accepts the Option Agreement shall not authorize or empower the responsibility of successor Shareholders’ Representative and agrees to do or cause to perform and be done any action (including bound by amending, modifying or waiving any provision all of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to provisions of this Agreement and the Option Escrow Agreement. Each successor Shareholders’ Representative shall have all of the power, (ii) alters the consideration payable to any Selling Party pursuant to authority, rights and privileges conferred by this Agreement upon the original Shareholders’ Representative, and the term “Shareholders’ Representative” shall be deemed to include any interim or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiessuccessor Shareholders’ Representative.
Appears in 1 contract
Sources: Share and Membership Interest Purchase Agreement (Nacco Industries Inc)
Shareholders’ Representative. (a) The Selling Each Indemnifying Party by virtue of the approval and adoption of this Agreement or by accepting any consideration payable or issuable hereunder shall be deemed to have constituted, appointed and empowered the Shareholders’ Representative, for the benefit of the Indemnifying Parties, by adopting this Agreement as the exclusive agent and attorney-in-fact to act for and on behalf of each Indemnifying Party, in connection with and to facilitate the consummation of the transactions contemplated hereby, which shall include the power and authority: (i) to execute and deliver such waivers, consents and amendments (with respect to any and all matters or issues, including those which may have a negative impact on an Indemnifying Party) under this Agreement and the other agreements, documents and instruments executed in connection herewith and the consummation of the transactions contemplated hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; (ii) as the Shareholders’ Representative, to enforce and protect the rights and interests of the Indemnifying Parties and to enforce and protect the rights and interests of such Persons arising out of or under or in any manner relating to this Agreement, the Exchange Agent Agreement, and the other agreements, documents and instruments executed in connection herewith and the transactions provided for herein and therein, and to take any and all actions which the Shareholders’ Representative believes are necessary or appropriate under this Agreement and the other agreements, documents and instruments executed in connection herewith for and on behalf of the Selling Indemnifying Parties, including consenting to, compromising or settling any such claims, conducting negotiations with CHC, the authority Company and their respective Representatives regarding such claims, and, in connection therewith, to (iA) assert any claim or institute any action, proceeding or investigation; (B) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by CHC, the Company or any other Person, or by any Governmental Entity against the Shareholders’ Representative and/or any of the Indemnifying Parties, and receive process on behalf of any or all Indemnifying Parties in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Shareholders’ Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such claim, action, proceeding or investigation; (C) file any proofs of debt, claims and petitions as the Shareholders’ Representative may deem advisable or necessary; (D) settle or compromise any claims asserted under this Agreement; and (E) file and prosecute appeals from any decision, judgment or award rendered in any such action, proceeding or investigation, it being understood that the Shareholders’ 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; (iii) to perform refrain from enforcing any right of the obligations Indemnifying Parties arising out of or under or in any manner relating to this Agreement and the other agreements, documents and instruments executed in connection herewith; provided, however, that no such failure to act on the part of the Shareholders’ Representative, except as otherwise provided in this Agreement, shall be deemed a waiver of any such right or interest by the Shareholders’ Representative set forth or by the Indemnifying Parties unless such waiver is in a writing signed by the waiving Party or by the Shareholders’ Representative; (iv) 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 Shareholders’ Representative, in its sole and absolute discretion, may consider necessary, proper or convenient in connection with or to carry out the transactions contemplated by this Agreement and the Option Agreementother agreements, documents and instruments executed in connection herewith; (iiv) to give engage special counsel, accountants and receive notices other advisors and communicationsincur such other expenses on behalf of the Indemnifying Parties in connection with any matter arising under this Agreement and the other agreements, documents and instruments executed in connection herewith; and (iiivi) to agree tocollect, negotiatehold and disburse any amounts, enter into and provide amendments and supplements including any portion of the Escrow Shares received by Shareholders’ Representative pursuant to and waivers the terms hereof in respect accordance with the terms of this Agreement and the Option Agreementother agreements, (iv) to retain legal counsel, accountants, consultants documents and other experts, and incur any other reasonable expenses, instruments executed in connection withherewith. Notwithstanding the foregoing, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for may resign at any time by providing written notice of intent to resign to the accomplishment ofIndemnifying Parties, any which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or all (B) the appointment of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed a successor by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and PurchaserIndemnifying Parties. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from By executing this Agreement, the Shareholders’ Representative hereby (x) accepts its appointment and authorization to Parent shall constitute notice to or from each act as Shareholders’ Representative as attorney-in-fact and agent on behalf of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under Indemnifying Parties in accordance with the terms of this Agreement or applicable law. Each Selling Party and (y) agrees to receive correspondence from the Shareholders’ Representativeperform its obligations under, including in electronic formand otherwise comply with, this Section 10.6.
(b) The Shareholders’ Representative shall not be liable entitled to receive reimbursement from, and be indemnified by, the Indemnifying Parties for certain expenses, charges and liabilities as provided below. In connection with this Agreement, and in exercising or failing to exercise all or any act done or omitted hereunder as of the powers conferred upon the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally hereunder, (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify i) the Shareholders’ Representative shall incur no responsibility whatsoever to any Indemnifying Parties by reason of any error in judgment or other act or omission performed or omitted hereunder, excepting only responsibility for any act or failure to act which represents willful misconduct and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith (ii) the Shareholders’ Representative shall be entitled to rely on the part advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Shareholders’ Representative pursuant to such advice shall in no event subject the Shareholders’ Representative to liability to any Indemnifying Parties. Each Indemnifying Party shall indemnify, severally in proportion to its Pro Rata Share and not jointly, the Shareholders’ Representative against all Losses, including reasonable attorneys’, accountants’ and other experts’ fees and the amount of any judgment against them, of any nature whatsoever (including, but not limited to, any and all expense whatsoever reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened or any claims whatsoever), arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acceptance acts or administration omissions of his duties the Shareholders’ Representative hereunder. No provision The foregoing indemnification shall not apply in the event of this Agreement shall require any action or proceeding which finally adjudicates the liability of the Shareholders’ Representative hereunder for its willful misconduct. In the event of any indemnification hereunder, upon written notice from the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance Indemnifying Parties as to the existence of a deficiency toward the payment of any such indemnification amount, each Indemnifying Party shall promptly deliver to the Shareholders’ Representative full payment of its powers, rights, such Indemnifying Party’s share of the amount of such deficiency in proportion to such Indemnifying Party’s Pro Rata Share. The Shareholders’ Representative shall only have the duties or privileges under expressly stated in this Agreement on behalf of any Selling Partiesand shall have no other duty, express or implied. The Shareholders’ Representative may in good faith engage attorneys, accountants and other professionals and experts at the cost and expense of the Indemnifying Parties.
(c) All of the indemnities, immunities and powers granted to the Shareholders’ Representative under this Agreement shall survive the Closing Date and/or any termination of this Agreement.
(d) CHC and the Company shall have the right to rely conclusively upon all actions taken or omitted to be taken by the Shareholders’ Representative pursuant to this Agreement, all of which actions or omissions shall be legally binding upon the informationIndemnifying Parties.
(e) The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the death, reportsincompetency, statements bankruptcy or liquidation of any Indemnifying Party and opinions prepared or presented by counsel or other professionals retained by it(ii) shall survive the consummation of the Share Purchase, and any action taken by the Shareholders’ Representative based on such reliance pursuant to the authority granted in this Agreement shall be deemed conclusively to have been taken in good faitheffective and absolutely binding on each Indemnifying Party notwithstanding any contrary action of or direction from such Indemnifying Party, except for actions or omissions of the Shareholders’ Representative constituting willful misconduct.
(cf) Notwithstanding Each of SKS and CHC acknowledges and agrees that the foregoing provisions in this ARTICLE VIII, or any provision Shareholders’ Representative is a party to the contrary set forth in this Agreement or solely to perform certain administrative functions in connection with the Option Agreementconsummation of the transactions contemplated hereby. Accordingly, each of SKS and CHC acknowledges and agrees that, other than in the Shareholders’ Representative’s role as a Shareholder (if applicable), the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)no liability to, and the powers conferred on shall not be liable for any Losses of, any of SKS or CHC or to any Person in connection with any obligations of the Shareholders’ Representative herein and under this Agreement or otherwise in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision respect of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreementtransactions contemplated hereby, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change except to the nature extent such Losses shall be proven to be the direct result of fraud by the indemnity obligations), Shareholders’ Representative in each case connection with respect to clauses (i), (ii) and (iii) the performance by the Shareholders’ Representative of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.its obligations hereunder
Appears in 1 contract
Sources: Share Purchase Agreement (ComSovereign Holding Corp.)
Shareholders’ Representative. ▇▇▇▇ ▇▇▇▇▇, (asuch Person ---------------------------- and any successor or successors being the "Shareholders' Representative") The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser shall act as the representative of the Shareholders’ Representative for , and shall be authorized to act on behalf of the Selling PartiesShareholders and to take any and all actions required or permitted to be taken by the Shareholders' Representative under this Agreement or the Escrow Agreement, with respect to any claims (including the settlement thereof) made by Parent or the Shareholders for indemnification pursuant to this Article IX of the Agreement and with respect to any actions to be taken by the Shareholders' Representative pursuant to the terms of the Escrow Agreement. The Shareholders shall be bound by all actions taken by the Shareholders' Representative in its capacity thereof, except for any action that conflicts with the limitation set forth in the final sentence of this Section 9.04. The Shareholders' Representative shall promptly, and in any event within five business days, provide written notice to the Shareholders of any action taken on their behalf by the Shareholders' Representative pursuant to the authority (i) delegated to perform the obligations Shareholders' Representative under this Section 9.04. The Shareholders' Representative shall at all times act in his or her capacity as Shareholders' Representative in a manner that the Shareholders' Representative believes to be in the best interest of the Shareholders’ . Neither the Shareholders' Representative set forth in 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 and or the Option Escrow Agreement, (ii) to give and receive notices and communicationsexcept in the case of the Shareholders' Representative's gross negligence, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain bad faith or willful misconduct. The Shareholders' Representative may consult with legal counsel, accountants, consultants independent public accountants and other experts, experts selected by it and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done action taken or omitted hereunder as the Shareholders’ Representative while acting to be taken in good faith and without negligence and any act done or omitted pursuant to by it in accordance with the advice of counsel shall be conclusive evidence of such good faith and absence of negligencecounsel, accountants or experts. The Selling Parties Shareholders' Representative shall severally (and not jointly), according have any duty to each Selling Parties’ pro-rata interest in ascertain or to inquire as to the shares performance or observance of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of terms, covenants or in connection with the acceptance or administration of his duties hereunder. No provision conditions of this Agreement shall require or the Shareholders’ Representative Escrow Agreement. As to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth matters not expressly provided for in this Agreement or the Option Escrow Agreement, the Shareholders’ ' Representative shall only have the power not be required to exercise any discretion or authority to act with respect to matters pertaining to the Selling Parties as a group take any action. Each Shareholder severally shall indemnify and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), hold harmless and the powers conferred on reimburse the Shareholders’ ' Representative herein from and in the Option Agreement shall not authorize against such Shareholder's ratable share of any and all liabilities, losses, damages, claims, costs or empower expenses suffered or incurred by the Shareholders’ ' Representative to do arising out of or cause resulting from any action taken or omitted to be done any action (including taken by amending, modifying or waiving any provision of the Shareholders' Representative under this Agreement or the Option Escrow Agreement) that (i) results , other than such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Shareholders' Representative's gross negligence, bad faith or willful misconduct. Notwithstanding anything to the contrary herein or in the amounts payable hereunder Escrow Agreement, (a) the Shareholders' Representative is not authorized to, and shall not, accept on behalf of any Shareholder any merger consideration to any Selling Party being distributed which such Shareholder is entitled under this Agreement and (b) the Shareholders' Representative shall not in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreementexercise, or (iii) adds seek to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubtexercise, any change to the nature of the indemnity obligations), in each case voting power whatsoever with respect to clauses (i), (ii) and (iii) shares of this Section 8.1(c), without first obtaining the prior written approval capital stock of the Selling PartiesCompany or Parent now or hereafter owned of record or beneficially by any Shareholder unless the Shareholders' Representative is expressly authorized to do so in a writing signed by such Shareholder. In all matters relating to this Article IX, the Shareholders' Representative shall be the only party entitled to assert the rights of the Shareholders, and the Shareholders' Representative shall perform all of the obligations of the Shareholders hereunder. Parent shall be entitled to rely on all statements, representations and decisions of the Shareholders' Representative.
Appears in 1 contract
Sources: Merger Agreement (Sonicwall Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and In order to efficiently administer the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority including (i) the determination of the Closing Working Capital Adjustment and the Adjusted Merger Consideration, (ii) the waiver of any condition to perform the obligations of the Company and the Company Shareholders to consummate the transactions contemplated hereby, and (iii) the defense and/or settlement of any claims for which the Company Shareholders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, the Company Shareholders’ , by the approval and adoption of this Agreement, shall designate RH Investments 2001 LLC as their representative (the "Shareholders' Representative"). The parties acknowledge that the Company and the Shareholders' Representative shall, prior to the Closing, direct by joint written notice(s) to the Buyer and the Exchange Agent that, on the Closing Date (i) a portion of the Preliminary Merger Consideration, not to exceed an amount to be disclosed in the Information Statement (as defined in Section 4.3) (the "Shareholders' Representative Fund"), shall be withheld and paid directly by the Buyer to an account designated in such notice, as a fund for the fees and expenses of the Shareholders' Representative incurred in connection with this Agreement, with any balance of the Shareholders' Representative Fund not incurred for such purposes to be returned to the Company Shareholders in proportion to their interests in the Escrow Fund, and in such manner that the Shareholders' Representative and the Company may prior to the Closing agree in writing, and (ii) a portion of the Preliminary Merger Consideration, in excess of the $300,000 of such expenses to be borne by the Buyer under Section 4.8, but not to exceed an amount to be disclosed in the Information Statement, shall be paid directly by the Buyer to certain financial and professional advisors and legal counsel to the Company in amounts to be set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior such joint written notice to all of (such amounts, after deducting such $300,000 sum, the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form"Expenses").
(b) The Company Shareholders by the approval and adoption of this Agreement authorize the Shareholders’ ' Representative (i) to make all decisions relating to the determination of the Closing Working Capital Adjustment and the Adjusted Merger Consideration, (ii) to take all action necessary in connection with the waiver of any condition to the obligations of the Company Shareholders to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims for which the Company Shareholders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, (iii) to give and receive all notices required to be given under the Agreement, and (iv) to take any and all additional action as is contemplated to be taken by or on behalf of the Company Shareholders by the terms of this Agreement.
(c) In the event that the Shareholders' Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Shareholders holding, prior to the Closing, a majority of the Outstanding Company Shares (on an as-converted basis) are authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Shareholders' Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(d) All decisions and actions by the Shareholders' Representative, including without limitation any agreement between the Shareholders' Representative and the Buyer relating to the determination of the Closing Working Capital Adjustment and/or the Adjusted Merger Consideration, or the defense or settlement of any claims for which the Company Shareholders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, shall be binding upon all of the Company Shareholders, and no Company Shareholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) The Shareholders' Representative shall not be liable have any liability to any of the Parties or the Company Shareholders for any act done or omitted hereunder as the Shareholders’ ' Representative while acting in good faith and without negligence in the exercise of reasonable judgment, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencefaith. The Selling Parties Company Shareholders shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ ' Representative and hold it him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ ' Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision .
(f) By his, her or its approval of the Merger, this Agreement, the Escrow Agreement and the Special Escrow Agreement, each Company Shareholder agrees, in addition to the foregoing, that:
(i) the Buyer shall require be entitled to rely conclusively on the instructions and decisions of the Shareholders’ ' Representative as to expend the determination of the Closing Working Capital Adjustment and/or the Adjusted Merger Consideration, or risk its own funds or otherwise incur any financial liability in the exercise or performance settlement of any of its powersclaims for indemnification by the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The other actions required or permitted to be taken by the Shareholders’ ' Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by ithereunder, and no party hereunder shall have any cause of action against the Buyer for any action taken by the Buyer in reliance upon the instructions or decisions of the Shareholders’ ' Representative;
(ii) all actions, decisions and instructions of the Shareholders' Representative based on such reliance shall be deemed conclusively to conclusive and binding upon all of the Company Shareholders and no Company Shareholder shall have been taken any cause of action against the Shareholders' Representative for any action taken, decision made or instruction given by the Shareholders' Representative under this Agreement, except for Fraud (as defined in good faith.Section 6.4) or willful misconduct by the Shareholders' Representative in connection with the matters described in this Section 1.10;
(ciii) Notwithstanding the foregoing provisions of this Section 1.10 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 transactions contemplated by this ARTICLE VIIIAgreement;
(iv) remedies available at law for any breach of the provisions of this Section 1.10 are inadequate; therefore, or the Buyer and the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either the Buyer and/or the Surviving Corporation brings an action to enforce the provisions of this Section 1.10; and
(v) the provisions of this Section 1.10 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Shareholder, and any provision to the contrary set forth references in this Agreement to a Company Shareholder or the Option AgreementCompany Shareholders shall mean and include the successors to the Company Shareholder's rights hereunder, whether pursuant to testamentary disposition, the Shareholders’ Representative shall only have the power laws of descent and distribution or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesotherwise.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Rsa Security Inc/De/)