Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver of any condition to the obligations of the Sellers and the Owners to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative and attorney-in-fact (the "REPRESENTATIVE"). (b) The Sellers and the Owners hereby authorize the Representative (i) to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Sellers and the Owners by the terms of this Agreement. (c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement. (d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same. (e) By their execution of this Agreement, each of the Sellers and the Owners agree that: (i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative; (ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative; (iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and (iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Shareholders’ Representative. (a) In order Each Shareholder, by signing this Agreement, designates ▇▇▇▇▇▇ ▇▇▇▇▇▇ to efficiently administer be the “Shareholders’ Representative” for all purposes of this Agreement and the Attendant Documents, and ▇▇▇▇▇▇ ▇▇▇▇▇▇ hereby accepts such designation. Any and all actions of the Shareholders following the Closing shall be taken by the Shareholders’ Representative on behalf of all the Shareholders and all Shareholders shall be bound by any and all actions taken by the Shareholders’ Representative on their behalf.
(ib) Purchaser shall be entitled to deal exclusively with the waiver Shareholders’ Representative on all matters relating to this Agreement and the Attendant Documents and the transactions provided for hereunder and thereunder. Without limiting the generality of the foregoing, Purchaser shall be entitled to rely upon any condition communication or writings given or executed by the Shareholders’ Representative as the communication or writing of all Shareholders. All communications or writings to be sent to the obligations Shareholders pursuant to this Agreement and the Attendant Documents shall be addressed to the Shareholders’ Representative, and any communication or writing so sent shall be deemed notice to all Shareholders. Each Shareholder hereby consents and agrees that the Shareholders’ Representative is authorized to make and accept deliveries, including any notice or consent, on behalf of such Shareholder and including acceptance, on behalf of all Shareholders, of service of process from Purchaser or its representatives with respect to any claim brought by or on behalf of Purchaser hereunder or under the Attendant Documents.
(c) The Shareholders’ Representative is hereby appointed and constituted the true and lawful attorney in fact of each Shareholder, with full power of substitution and resubstitution in his, her or its name and on his, her or its behalf to act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Sellers and the Owners to consummate the transactions contemplated herebyShareholders’ 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 or the defense and/or settlement Attendant Documents, amending on behalf of the Shareholders this Agreement or the Attendant Documents, waiving any or all rights of the Shareholders under this Agreement or the Attendant Documents, settling any and all claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties indemnification pursuant to Article 8 hereof9 of this Agreement, each and settling all disputes relating to the Purchase Price pursuant to Article 3 of this Agreement. This power of attorney and all authority hereby conferred is granted in consideration of the Sellers mutual covenants and agreements made herein, and shall be irrevocable and coupled with an interest and shall not be terminated by any act of any Shareholder, by operation of law, whether by death or any other event.
(d) In the event of the death of ▇▇▇▇▇▇ ▇▇▇▇▇▇ or the resignation of ▇▇▇▇▇▇ ▇▇▇▇▇▇ as the Representative, then each Owner hereby irrevocably appoints and Shareholder, by signing this Agreement, designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as his, her or its representative and attorney-in-fact (the "REPRESENTATIVE").
(b) The Sellers and the Owners hereby authorize the Representative (i) to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Sellers and the Owners by the terms of this Agreement.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Shareholders’ Representative for all purposes of this Agreement.
(d) All decisions , and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwisehereby accepts such designation.
Appears in 1 contract
Shareholders’ Representative. (a) In order to efficiently administer (i) Effective upon and by virtue of the waiver vote of the holders of Company Stock approving and adopting this Agreement and the Merger, and without any further act of any condition to the obligations of the Sellers and the Owners to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each holders of the Sellers Company Stock, the Shareholders’ Representative shall be hereby appointed as the representative of the holders of Company Stock and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative and the attorney-in-fact and agent for and on behalf of each holder of Company Stock solely with respect to (i) any claims by any Parent Indemnified Party against the "REPRESENTATIVE")Escrow Fund under Articles 2 and 10 of this Agreement and (ii) any amendments to the Escrow Agreement; provided, however, that any amendment of the Escrow Agreement that shall adversely affect the rights or obligations of any shareholder under the Escrow Agreement (other than any change affecting all holders of Company Stock similarly) shall require the prior written consent of such adversely affected shareholder. The Shareholders’ Representative hereby accepts such appointment. The Shareholders’ Representative shall have the authority to take any and all actions and make any decisions required or permitted to be taken by the Shareholders’ Representative under the Escrow Agreement and this Agreement, including the exercise of the power to (i) agree to, negotiate, enter into settlements and compromises of, commence any suit, action or proceeding, and comply with orders of courts with respect to, claims by any Parent Indemnified Party against the Escrow Fund under Articles 2 and 10 of this Agreement, (ii) litigate, resolve, settle or compromise any dispute that may arise pursuant to Section 5 of the Escrow Agreement, and (iii) take all actions necessary in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing. The Shareholders’ Representative will have sole authority and power to act on behalf of each former shareholder of the Company with respect to the disposition, settlement or other handling of all claims against the Escrow Fund under this Agreement and all related rights or obligations of the former shareholders of the Company arising under this Agreement. The Shareholders’ Representative will also have sole authority and power to act on behalf of each former shareholder of the Company with respect to any amendments to the Escrow Agreement. The Shareholders’ Representative shall use commercially reasonable efforts, based on contact information available to the Shareholders’ Representative, to keep the former shareholders of the Company reasonably informed with respect to actions of the Shareholders’ Representative pursuant to the authority granted the Shareholders’ Representative under this Agreement. Each former shareholder of the Company shall promptly provide written notice to the Shareholders’ Representative of any change of address of such shareholder.
(b) The Sellers In all matters relating to the disposition, settlement or other handling of claims against the Escrow Fund under this Agreement or any amendments to the Escrow Agreement, the Shareholders’ Representative (or his or her successor) shall be the only party entitled to assert the rights of the former shareholders of the Company. A decision, act, consent or instruction of the Shareholders’ Representative hereunder shall constitute a decision, act, consent or instruction of all former holders of Company Stock and shall be final, binding and conclusive upon each of such shareholders, and the Owners hereby authorize the Representative (i) to take all action necessary in connection with (aa) the waiver of Escrow Agent and Parent may rely upon any condition to the obligations of any Seller such decision, act, consent or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf instruction of the Sellers Shareholders’ Representative as being the decision, act, consent or instruction of each and every such holder of Company Stock. The Escrow Agent and Parent shall be relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Owners by the terms of this AgreementShareholders’ Representative.
(c) The Shareholders’ Representative shall have the right to recover from the Escrow Fund, prior to any distribution to the holders of Company Stock (but after any disbursement from the Escrow Fund to the Escrow Agent pursuant to terms and conditions of the Escrow Agreement), the Shareholders’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity (the “Shareholders’ Representative’s Expenses”). In the event the Escrow Property is insufficient to satisfy the Shareholders’ Representative’s Expenses, then each holder of Company Stock will be obligated to pay a percentage of the Shareholders’ Representative’s Expenses in excess of the Escrow Fund proportionate to that holder’s Escrow Holdback.
(d) The Shareholders’ Representative will incur no liability with respect to any action taken or suffered by any party in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Shareholders’ Representative to be genuine and to have been signed by the proper person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except his own gross negligence, bad faith or willful misconduct. In all questions arising under this Agreement or the Escrow Agreement, the Shareholders’ Representative may rely on the advice of outside counsel, and the Shareholders’ Representative will not be liable to anyone for anything done, omitted or suffered in good faith by the Shareholders’ Representative based on such advice.
(e) The holders of Company Stock shall severally but not jointly indemnify the Shareholders’ Representative and hold the Shareholders’ Representative harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct, to the extent permitted by applicable law, on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of the Shareholders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative.
(f) At any time during the term of the Escrow Agreement, a majority-in-interest of holders of any amounts then held in the Escrow Fund may, by written consent, appoint a new representative as the Shareholders’ Representative. Notice together with a copy of the written consent appointing such new representative and bearing the signatures of holders of a majority-in-interest of those holders must be delivered to Parent and the Escrow Agent not less than ten (10) calendar days prior to such appointment. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Parent and the Escrow Agent.
(g) In the event that the Shareholders’ Representative dies, becomes unable or unwilling to perform continue in his responsibilities hereunder or its capacity as Shareholders’ Representative, or if the Shareholders’ Representative resigns from such positionas a Shareholders’ Representative, a majority majority-in-interest of the Owners will select another holders of any amounts then held in the Escrow Fund may, by written consent, appoint a new representative as the Shareholders’ Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of the holders of a majority-in-interest of such holders must be delivered to fill each such vacancy Parent and such substituted representative the Escrow Agent. Such appointment will be irrevocably appointed and designated effective upon the Representative for all purposes later of this Agreement.
(d) All decisions and actions the date indicated in the consent or the date such consent is received by the Representative, including, without limitation, (i) any agreement between the Representative Parent and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the sameEscrow Agent.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Sources: Merger Agreement (Affymetrix Inc)
Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver of any condition addition to the obligations other rights and authority granted to the Shareholders’ Representative elsewhere in this Agreement and except as expressly provided herein, by participating in the execution and delivery of this Agreement and receiving the Sellers and benefits thereof, including the Owners right to consummate receive the consideration payable in connection with the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereofby this Agreement, each Company Shareholder (which, for the purpose of the Sellers and this Section 12.11, shall also mean each Owner MKD BVI Shareholder) hereby irrevocably authorizes and appoints and designates M▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ as hisagent, her or its representative and attorney-in-fact (the "REPRESENTATIVE").
(b) The Sellers and the Owners hereby authorize the Representative (i) representative to take all action necessary in connection with (aa) the waiver act for and on behalf of such Company Shareholder regarding any condition matter under this Agreement or relating to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) with full power of substitution to act in the defense and/or settlement name, place and stead of any claims for which any Seller or Owner may be required such Company Shareholder and to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or act on behalf of the Sellers and the Owners by the terms of this Agreement.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating Company Shareholder with respect to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction transactions contemplated hereby, including in any amendment of or (ii) the defense dispute, litigation or settlement of any claims for which the Sellers arbitration involving this Agreement and to do or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers refrain from doing all such further acts and all of the Ownersthings, and no Seller or Owner will have to execute all such documents, as the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Shareholders’ Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required shall determine to be taken by the Representative hereunder, and no party hereunder will have necessary or appropriate in conjunction with any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
. This power of attorney and all authority hereby conferred is coupled with an interest and is irrevocable and shall not terminate or otherwise be affected by the death, disability, incompetence, bankruptcy or insolvency of any Company Shareholder. Except as expressly provided herein, no Company Shareholder shall directly have the right to exercise any right hereunder, it being understood and agreed that all such rights shall only be permitted to be exercised by the Shareholders’ Representative on behalf of the Company Shareholders. Without limiting the generality of the foregoing, the Shareholders’ Representative has full power and authority, on behalf of each Company Shareholder and such Company Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Company Shareholders in connection herewith, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement, (iii) receive service of process in connection with any claims under this Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the provisions defense of Third-Party Claims, prosecute and defend claims for indemnification under ARTICLE XI and comply with orders of courts with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (viii) assert the attorney-client privilege on behalf of the Company Shareholders with respect to any communications that relate in any way to the transactions contemplated hereby, (ix) deliver to SPAC any and all Ancillary Agreements executed by the Company Shareholders and deposited with the Shareholders’ Representative, upon the Shareholders’ Representative’s determination that the conditions to Closing have been satisfied or waived and (x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative on behalf of the Company Shareholders in connection with this Agreement.
(b) Service by the Shareholders’ Representative shall be without compensation except for the reimbursement by the Company Shareholders of out-of-pocket expenses and indemnification specifically provided herein.
(c) Notwithstanding Section 12.11(a), if the Shareholders’ Representative believes that he or she requires further authorization or advice from any Company Shareholder on any matters concerning this Agreement or any other agreement contemplated hereby, the Shareholders’ Representative will be entitled, but not obligated, to seek such further authorization solely from such Company Shareholder.
(d) From and after the date hereof, but except as expressly provided herein, each of SPAC and the Company is entitled to deal exclusively with the Shareholders’ Representative on all matters relating to this Agreement and the transactions contemplated hereby. A decision, act, consent or instruction of the Shareholders’ Representative constitutes a decision of all the Company Shareholders in respect of this Agreement and the transactions contemplated hereby. Such decision, act, consent or instruction is final, binding and conclusive upon each Company Shareholder, and each of SPAC and the Company 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 Company Shareholder by the Shareholders’ Representative, and on any other decision, act, consent or instruction taken or purported to be taken on behalf of any Company Shareholder by the Shareholders’ Representative, as being fully binding upon such Person. Notices or communications to or from the Shareholders’ Representative will constitute notice to or from each Company Shareholder.
(e) The Shareholders’ Representative may resign at any time, and may appoint a new Shareholders’ Representative to act in his or her stead, and may be removed for any reason or no reason by the vote or written consent of the Company Shareholders holding a majority of the Company Ordinary Shares as of the date hereof; provided, however, in no event shall the Shareholders’ Representative be removed without the Company Shareholders holding a majority of the Company Ordinary Shares having first appointed a new Shareholders’ Representative who shall assume such duties immediately upon the removal of the Shareholders’ Representative. In the event of the death, incapacity, or removal of the Shareholders’ Representative, a new Shareholders’ Representative shall be appointed by the vote or written consent of the Company Shareholders holding a majority of the Company Ordinary Shares as of the date hereof and a copy of the written consent or minutes appointing such new Shareholders’ Representative shall be sent to SPAC, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by SPAC; provided that until such notice is received, SPAC and the Company shall be entitled to rely on the decisions and actions of the prior Shareholders’ Representative as described in this Section 9.13 12.11.
(f) The Shareholders’ Representative shall hold and be entitled to use the Shareholders’ Representative Fund, defined below, for the purposes of paying for, or reimbursing the Shareholders’ Representative for, any and all costs and expenses (including counsel and legal fees and expenses) incurred by the Shareholders’ Representative in connection with the protection, defense, enforcement or other exercise or fulfillment of any rights or obligations under this Agreement (collectively, the “Shareholders’ Representative Expenses”). The Shareholders’ Representative shall hold the Shareholders’ Representative Fund in a segregated bank account and shall not comingle it with any other funds (the “Representative Fund”. At such time as the Shareholders’ Representative deems appropriate, the Shareholders’ Representative shall distribute to the Company Shareholders (in accordance with their respective Pro Rata Portion) the remaining Shareholders’ Representative Fund. The Shareholders’ Representative will be binding promptly reimbursed by the Company Shareholders (based on their respective Pro Rata Portion) for Shareholders’ Representative Expenses not covered by the Shareholders’ Representative Fund upon demand.
(g) The Company Shareholders, severally and not jointly (based on their Pro Rata Portion), agree to indemnify and hold harmless the executorsShareholders’ Representative (in his or her capacity as such) for and from any Loss or Liability he or she may incur or be subject to as a result of his duties hereunder or any of his actions or inactions as such, heirs, legal representatives and successors of each Seller and each Ownerexcept as may result from the Shareholders’ Representative’s actions that would constitute fraud or willful misconduct.
(h) The Shareholders’ Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any references in Company Shareholder shall otherwise exist against the Shareholders’ Representative. The Shareholders’ Representative shall not be liable to any Company Shareholder relating to the performance of the Shareholders’ Representative’s duties or exercise of any rights under this Agreement to a Seller for any errors in judgment, negligence, oversight, breach of duty or an Owner will mean and include the successors otherwise except to the rights 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 actual fraud or were taken or not taken in bad faith. The Shareholders’ Representative shall be indemnified and held harmless by the Company Shareholders 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 Sellers and fact that the Owners hereunder, whether Shareholders’ Representative was acting as the Shareholders’ Representative pursuant to testamentary dispositionthis 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 actual 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 the Shareholders’ Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter. The Shareholders’ Representative, solely in his capacity as such, shall not be liable to SPAC or any Affiliate of SPAC by reason of this Agreement or the performance of the Shareholders’ Representative’s duties hereunder or otherwise. The foregoing indemnities will survive the Closing, the laws resignation or removal of descent and distribution the Shareholders’ Representative or otherwisethe termination of this Agreement.
Appears in 1 contract
Sources: Business Combination Agreement (Cetus Capital Acquisition Corp.)
Shareholders’ Representative. (a) In order The Shareholders, by executing this Agreement, hereby irrevocably appoint the Shareholders’ Representative as their agent and attorney-in-fact for purposes of Section 9 and the Escrow Agreement, and consent to efficiently administer the taking by the Shareholders’ Representative of any and all actions and the making of any decisions required or permitted to be taken by it under the Escrow Agreement (iincluding, without limitation, the exercise of the power to authorize delivery to Parent of the Indemnity Escrow Amount and the Special Taxes Escrow Amount in satisfaction of claims by Parent, agree to, negotiate, enter into settlements and compromises of and demand arbitration, and comply with orders of courts and awards of arbitrators with respect to such claims, resolve any claim made pursuant to Section 9); and take all actions necessary in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing. ▇▇▇▇ ▇▇▇▇▇ & Associates Ltd. hereby accepts its appointment as the Shareholders’ Representative for purposes of Section 9 and the Escrow Agreement. Parent shall be entitled to deal exclusively with the Shareholders’ Representative on all matters relating to Section 9 and the Escrow Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Shareholder by the Shareholders’ Representative, and on any other action taken or purported to be taken on behalf of any Shareholder by the Shareholders’ Representative, as fully binding upon such Shareholder. Without limiting the generality of the foregoing, any decision, act, consent or instruction of the Shareholders’ Representative, including an amendment, extension or waiver of any condition to the obligations provision of this Agreement, shall constitute a decision of the Sellers Shareholders and shall be final, binding and conclusive upon the Owners Shareholders. Each of Parent and Purchaser is hereby relieved from any liability to consummate the transactions contemplated herebyany person for any acts done by it in accordance with such decision, and (ii) the defense and/or settlement of any claims for which the Sellers act, consent or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each instruction of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇Shareholders’ Representative.
(b) If the Shareholders’ Representative shall be unable to fulfill its responsibilities as agent of the Shareholders, then ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as hisshall, her or its within 10 days after such determination, appoint a successor representative reasonably satisfactory to Parent. Any such successor shall become the “Shareholders’ Representative” for purposes of Section 9, the Escrow Agreement and attorney-in-fact (the "REPRESENTATIVE").
(b) The Sellers and the Owners hereby authorize the Representative (i) to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Sellers and the Owners by the terms of this AgreementSection 10.1.
(c) In The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as Shareholders’ Representative while acting in good faith and in the event that exercise of reasonable judgment. The Shareholders shall severally indemnify each Shareholders’ Representative and hold each Shareholders’ Representative harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of such Shareholders’ Representative diesand arising out of or in connection with the acceptance or administration of such Shareholders’ Representative’s duties hereunder, becomes unable to perform his responsibilities hereunder or resigns from including the reasonable fees and expenses of any legal counsel retained by such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this AgreementShareholders’ Representative.
(d) All decisions and actions by The Shareholders’ Representative shall be entitled to rely upon any order, judgment, certificate, demand, notice, instrument or other writing delivered to it hereunder without being required to investigate the Representativevalidity, includingaccuracy or content thereof, without limitation, (i) any agreement between the Representative and the Purchaser Shareholders’ Representative shall not be responsible for the validity or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution sufficiency of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims . In all questions arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except the Shareholders’ Representative may rely on the advice of counsel, and for fraud anything done, omitted or willful misconduct suffered in good faith by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary dispositionShareholders’ Representative based on such advice, the laws of descent and distribution or otherwiseShareholders’ Representative shall not be liable to anyone.
Appears in 1 contract
Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver of any condition to the obligations Each SNL Indemnifying Party by virtue of the Sellers 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 Owners to consummate Shareholders’ Representative, for the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each benefit of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ SNL Indemnifying Parties, as his, her or its representative the exclusive agent and attorney-in-fact to act for and on behalf of each SNL 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 SNL Indemnifying Party) under this Agreement and the "REPRESENTATIVE")other agreements, documents and instruments executed in connection herewith and the consummation of the transactions contemplated hereby 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 SNL 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 SNL Indemnifying Parties, including consenting to, compromising or settling any such claims, conducting negotiations with CHC, the Company and their respective Representatives regarding such claims, and, in connection therewith, to (A) assert any claim or institute any action, proceeding or investigation; (B) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by CHC, the Company or any other Person, or by any Governmental Entity against the Shareholders’ Representative and/or any of the SNL Indemnifying Parties, and receive process on behalf of any or all SNL 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 refrain from enforcing any right of the SNL 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 or by the SNL 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 other agreements, documents and instruments executed in connection herewith; (v) to engage special counsel, accountants and other advisors and incur such other expenses on behalf of the SNL Indemnifying Parties in connection with any matter arising under this Agreement and the other agreements, documents and instruments executed in connection herewith; and (vi) to collect, hold and disburse any amounts, including any portion of the Escrow Shares received by Shareholders’ Representative pursuant to the terms hereof in accordance with the terms of this Agreement and the other agreements, documents and instruments executed in connection herewith. Notwithstanding the foregoing, the Shareholders’ Representative may resign at any time by providing written notice of intent to resign to the SNL Indemnifying Parties, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the SNL Indemnifying Parties. By executing this Agreement, the Shareholders’ Representative hereby (x) accepts its appointment and authorization to act as Shareholders’ Representative as attorney-in-fact and agent on behalf of the SNL Indemnifying Parties in accordance with the terms of this Agreement and (y) agrees to perform its obligations under, and otherwise comply with, this Section 10.6.
(b) The Sellers Shareholders’ Representative shall be entitled to receive reimbursement from, and be indemnified by, the Owners hereby authorize SNL 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 of the powers conferred upon the Shareholders’ Representative hereunder, (i) the Shareholders’ Representative shall incur no responsibility whatsoever to take any SNL 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 (ii) the Shareholders’ Representative shall be entitled to rely on the 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 SNL Indemnifying Parties. Each SNL Indemnifying Party shall indemnify, severally in proportion to its Pro Rata Share and not jointly, the Shareholders’ Representative against all action necessary 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 (aa) any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the waiver acts or omissions of the Shareholders’ Representative hereunder. The foregoing indemnification shall not apply in the event of any condition 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 the obligations SNL Indemnifying Parties as to the existence of a deficiency toward the payment of any Seller or any Owner such indemnification amount, each SNL Indemnifying Party shall promptly deliver to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement Shareholders’ Representative full payment of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf such SNL Indemnifying Party’s share of the Sellers amount of such deficiency in proportion to such SNL Indemnifying Party’s Pro Rata Share. The Shareholders’ Representative shall only have the duties expressly stated in this Agreement and shall have no other duty, express or implied. The Shareholders’ Representative may engage attorneys, accountants and other professionals and experts at the Owners by cost and expense of the terms of this AgreementSNL Indemnifying Parties.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority All of the Owners will select another representative indemnities, immunities and powers granted to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Shareholders’ Representative for all purposes under this Agreement shall survive the Closing Date and/or any termination of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative CHC and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will Company shall have the right to objectrely upon all actions taken or omitted to be taken by the Shareholders’ Representative pursuant to this Agreement, dissent, protest all of which actions or otherwise contest omissions shall be legally binding upon the sameSNL Indemnifying Parties.
(e) By their execution The grant of this Agreement, each of the Sellers and the Owners agree that:
authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the Purchaser death, incompetency, bankruptcy or ▇▇▇▇▇▇▇ will be able to rely conclusively on liquidation of any SNL Indemnifying Party and (ii) shall survive the instructions and decisions consummation of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunderShare Purchase, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser Shareholders’ Representative pursuant to the authority granted in this Agreement shall be effective and absolutely binding on each SNL Indemnifying Party notwithstanding any contrary action of or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreementdirection from such SNL Indemnifying Party, except for fraud actions or omissions of the Shareholders’ Representative constituting willful misconduct by the Representative;misconduct.
(iiif) Each of SNL and CHC acknowledges and agrees that the provisions of Shareholders’ Representative is a party to this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have Agreement solely to perform certain administrative functions in connection with the consummation of the transactions contemplated by hereby. Accordingly, each of SNL and CHC acknowledges and agrees that, other than in the Shareholders’ Representative’s role as a SNL Shareholder (if applicable), the Shareholders’ Representative shall have no liability to, and shall not be liable for any Losses of, any of SNL or CHC or to any Person in connection with any obligations of the Shareholders’ Representative under this Agreement; and
(iv) the provisions Agreement or otherwise in respect of this Section 9.13 will be binding upon Agreement or the executorstransactions contemplated hereby, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors except to the rights extent such Losses shall be proven to be the direct result of fraud by the Sellers and Shareholders’ Representative in connection with the Owners performance by the Shareholders’ Representative of its obligations hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Sources: Share Purchase Agreement (COMSovereign Holding Corp.)
Shareholders’ Representative. (a) In order By approving the Merger or by delivering a duly executed Letter of Transmittal to efficiently administer (iBuyer in exchange for the Merger Consideration to be paid in accordance with Section 2.7(a) or by delivering a duly executed Option Cancellation Agreement to Buyer in exchange for the waiver of any condition Option Consideration to be paid in accordance with Section 2.8(a), as applicable, each Seller irrevocably approves the obligations of the Sellers constitution and the Owners to consummate the transactions contemplated herebyappointment of, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably constitutes and appoints Fortis Advisors LLC as the sole, exclusive, true and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as hislawful agent, her or its representative and attorney-in-fact of all Sellers and each of them (the "REPRESENTATIVE").“Shareholders’ Representative”) with respect to any and all matters relating to, arising out of, or in connection with, this Agreement, including for purposes of taking any action or omitting to take any action on behalf of the Sellers hereunder to:
(b) The Sellers and the Owners hereby authorize the Representative (i) act for the Sellers with regard to take all action matters pertaining to indemnification under this Agreement, including the power to defend, compromise, or settle any claims and to otherwise prosecute or pursue any litigation claims;
(ii) execute and deliver all amendments, waivers, Transaction Documents, certificates and documents that the Shareholders’ Representative deems necessary or appropriate in connection with (aa) the waiver consummation of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and by this Agreement;
(iii) do or refrain from doing any further act or deed on behalf of the Sellers that the Shareholders’ Representative deems necessary or appropriate in its discretion relating to take any the subject matter of this Agreement or the Shareholders’ Representative Engagement Agreement as fully and all additional action completely as is contemplated the Sellers could do if personally present;
(iv) give or receive notices to be taken given or received by the Sellers under this Agreement; and
(v) receive service of process in connection with any claims under this Agreement. Notwithstanding the foregoing, the Shareholders’ Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein and in the Shareholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Shareholders’ Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedule. All actions, notices, communications and determinations by or on behalf of the Sellers and the Owners in connection with this Agreement shall be given or made by the terms Shareholders’ Representative and all such actions, notices, communications and determinations by the Shareholders’ Representative shall conclusively be deemed to have been authorized by, and shall be binding upon, any of this Agreement.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and all Sellers and such substituted representative will be irrevocably appointed Seller’s successors as if expressly confirmed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions ratified in writing by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Ownerssuch Seller, and no Seller or Owner will shall have the right to object, dissent, protest or otherwise contest the same.
(eb) By their execution of this Agreement, each Such appointment of the Sellers Shareholders’ Representative may be changed, and the Owners agree that:
Shareholders’ Representative may be replaced, by the number of Sellers who represented the majority of the right to vote immediately prior to the Merger. Notwithstanding the foregoing, the Shareholders’ Representative may resign at any time by providing written notice of intent to resign to Sellers, which resignation shall be effective upon the earlier of (i) 30 days following delivery of such written notice or (ii) the Purchaser appointment of a successor by the number of Sellers who represented the majority of the right to vote immediately prior to the Merger. The immunities and rights to indemnification shall survive the resignation or ▇▇▇▇▇▇▇ will removal of the Shareholders’ Representative or any member of the Advisory Group and the Closing or any termination of this Agreement a. No bond shall be able required of the Shareholders’ Representative.
(c) Certain Sellers have entered into an engagement agreement (the “Shareholders’ Representative Engagement Agreement”) with the Shareholders’ Representative to provide direction to the Shareholders’ Representative in connection with its services under this Agreement and the Shareholders’ Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Shareholders’ Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in its capacity as such (collectively, the “Shareholders’ Representative Group”) shall be liable for any act done or omitted hereunder or under the Shareholders’ Representative Engagement Agreement as Shareholders’ Representative while acting in good faith, even if such act or omission constitutes negligence on the part of such Shareholders’ Representative. The Shareholders’ Representative shall only have the duties expressly stated in this Agreement and shall have no other duty, express or implied. The Shareholders’ Representative may engage attorneys, accountants and other professionals and experts. The Shareholders’ Representative may in good faith rely conclusively on the instructions upon information, reports, statements and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, opinions prepared or (bb) any other actions required to be taken presented by the Representative hereundersuch professionals, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith. Sellers shall indemnify and defend the Shareholders’ Representative Group and hold the Shareholders’ Representative Group harmless against any Loss, fee, judgment, claim, damage, liability, cost, expense (including costs incurred in connection with seeking recovery from insurers), fine or ▇▇▇▇▇▇▇ amounts paid in reliance upon settlement incurred on the instructions or decisions part of the Shareholders’ Representative (so long as the Shareholders’ Representative was acting in good faith in connection therewith) and arising out of or in connection with the acceptance or administration of the Shareholders’ Representative;’s duties hereunder or under the Shareholders’ Representative Engagement Agreement including the reasonable fees and expenses of any legal counsel or other skilled professionals retained by the Shareholders’ Representative and fees incurred in connection with seeking recovery from insurers (collectively, the “Shareholders’ Representative Expenses”). Such Shareholders’ Representative Expenses may be recovered first, from the Expense Fund, second, directly from Sellers , and third, from any Milestone Payments at the time such amounts become payable to the Sellers. The Sellers 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 or pursuant to this Agreement and the Shareholders’ Representative Engagement Agreement or the transactions contemplated hereby or thereby. 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.
(iid) all actions, decisions and instructions Buyer shall be entitled to rely on the authority of the Shareholders’ Representative will be conclusive (as evidenced by an instrument in writing signed by the Shareholders’ Representative) as the agent, representative and binding upon each attorney-in-fact of the Sellers for all purposes under this Agreement and all shall have no liability for any such reliance. No Seller may revoke the authority of the OwnersShareholders’ Representative. By approving the Merger or by delivering a duly executed Letter of Transmittal to Buyer in exchange for the Merger Consideration to be paid in accordance with Section 2.7(a) or the Option Consideration to be paid in accordance with Section 2.8(a), each Seller hereby ratifies and confirms, and no party hereto will have any cause of action against the Representativehereby agrees to ratify and confirm, in his capacity as a Representative, for any action taken, decision made or instruction given taken by the Shareholders’ Representative under this Agreement, except for fraud or willful misconduct by in the Representative;
(iii) exercise of the provisions of power-of-attorney granted to the Shareholders’ Representative pursuant to this Section 9.13 2.10. The powers, immunities and rights to indemnification granted to the Shareholders’ Representative Group hereunder are independent and severable, are irrevocable and coupled with an interest and will shall be enforceable notwithstanding irrevocable and shall survive the death, incapacity, bankruptcy, liquidation or incompetence of such Seller.
(e) The Shareholders’ Representative shall be entitled to: (i) rely upon Schedule I, (ii) rely upon any rights or remedies signature believed by it to be genuine, and (iii) reasonably assume that either a signatory has proper authorization to sign on behalf of the applicable Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseother party.
Appears in 1 contract
Sources: Agreement and Plan of Merger (AzurRx BioPharma, Inc.)
Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver of any condition to the obligations of the Sellers and the Owners to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner Each Shareholder hereby irrevocably makes, constitutes and appoints and designates ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as the Shareholders’ Representative and as his, her or its representative exclusive agent and true and lawful attorney-in-fact (with full power of substitution to do any and all things and execute any and all documents which may be necessary, convenient or appropriate to facilitate the "REPRESENTATIVE").
(b) The Sellers consummation of the transactions contemplated by this Agreement, hereby ratifying and confirming all that the Owners hereby authorize the Shareholders’ Representative may do or cause to be done by virtue hereof, including but not limited to: (i) make all decisions relating to take the determination of the purchase price adjustment under Section 2.3; (ii) subject to the terms of this Agreement, make all action necessary in connection with (aa) decisions relating to the waiver distribution of any condition amounts payable or distributable to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and such Shareholder hereunder; (iii) to take execution and delivery, on behalf of such Shareholder, of any and all additional action as is contemplated document required to be taken executed by or on behalf of the Sellers Shareholders under this Agreement; (iv) receipt and the Owners by the terms forwarding of notices and communications pursuant to this Agreement; (v) administration of this Agreement, including the resolution of any dispute or claim; (vi) the resolution, settlement, or compromise of any claim for indemnification asserted against such Shareholder pursuant to Section 9.4(a) or elsewhere under this Agreement; (vii) asserting, on behalf of such Shareholder, claims for indemnification under Section 9.4(b) and resolving, settling or compromising all such claims; (viii) terminate or consent or agree to any termination of this Agreement or any provision hereof; (ix) consent or agree to any amendment to this Agreement, or waiver of any of its terms and conditions; and (x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of such Shareholder or other Person under any circumstance.
(b) Buyer may rely upon the full power and authority of Shareholders’ Representative to act as agent of each Shareholder, and shall not be liable in any way whatsoever for any action Buyer takes or omits to take in reliance upon such power and authority. Each Shareholder agrees that the appointment of Shareholders’ Representative and such agency, proxy and power of attorney under this Agreement are coupled with an interest and shall be irrevocable by any Shareholder in any manner and for any reason. This agency, proxy and power of attorney shall not be affected by the death, disability, incapacity or bankruptcy of the Shareholder pursuant to any applicable law or otherwise. Each Shareholder acknowledges and agrees that upon execution of this Agreement, any delivery by the Shareholders’ Representative of any waiver, amendment, agreement, opinion, certificate or other documents executed by the Shareholders’ Representative or any decisions made by the Shareholders’ Representative pursuant to this Section 6.15, such Shareholder shall be bound by such documents or decision as fully as if such Shareholder had executed and delivered such documents or made such decisions.
(c) In Shareholders’ Representative acknowledges that he has carefully read and understands this Agreement, hereby accepts such appointment and designation, and represents that he will act in his capacity as Shareholders’ Representative in strict compliance with and conformance to the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes provisions of this Agreement.
(d) All decisions and actions by Each Shareholder agrees that in the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or event that ▇▇. ▇▇▇▇▇ relating or his successor refuses to serve, or is no longer capable of serving, as Shareholders’ Representative, the Shareholders shall appoint another person to serve as Shareholders’ Representative by a vote of the Shareholders who hold or held, as the case may be, a majority of the outstanding Shares of CECity immediately prior to the waiver Closing. Each Shareholder agrees that ▇▇. ▇▇▇▇▇ or his successor may be removed from serving as Shareholders’ Representative by a vote of any condition the Shareholders who hold or held, as the case may be, a majority of the outstanding Shares immediately prior to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the sameClosing.
(e) By Under no circumstances shall Shareholders’ Representative have any liability, under any fiduciary theory or otherwise, to the Shareholders for any act or omission to act of Shareholders’ Representative in such capacity, unless the Shareholder asserting such liability is able to prove that Shareholders’ Representative was guilty of gross negligence or willful misconduct. Each Shareholder shall, severally but not jointly and on a pro rata basis based upon their execution of this Agreement, each respective Pro Rata Portion of the Sellers and the Owners agree that:
Shares, (i) the Purchaser indemnify, save and hold harmless Shareholders’ Representative from and against any and all Losses incurred in connection with, arising out of, resulting from, or ▇▇▇▇▇▇▇ will be able incident to rely conclusively on the instructions and decisions any act or omission to act of the Shareholders’ Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representativesuch, for any action taken, decision made or instruction given except to the extent caused by the willful misconduct, gross negligence or bad faith of the Shareholders’ Representative under this Agreementand (ii) reimburse Shareholders’ Representative for all out-of-pocket expenses (including reasonable fees and expenses of attorneys, except for fraud or willful misconduct accountants and experts) incurred by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have Shareholders’ Representative in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners performing his duties as Shareholders’ Representative hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Shareholders’ Representative. (a) The Shareholders’ Representative is hereby appointed, authorized and empowered to act as a representative for the benefit of the holders of the Shares (which for purposes of this Section 9.1 shall not include Disappearing Sub or KMG or holders of Dissenting Shares), as the exclusive agent and attorney-in-fact to act on behalf of each such holder of the Shares, in connection with and to facilitate the consummation of the transactions contemplated hereby and any post-Closing matters, including, without limitation, Article XI, which shall include the power and authority:
(i) subject to Section 9.1(e), to execute and deliver such waivers and consents in connection with this Agreement and each other agreement, document, instrument or certificate referred to herein or therein or the transactions provided for herein or therein as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable;
(ii) as representative, to enforce and protect the rights and interests of the holders of the Shares (including the Shareholders’ Representative, in his capacity as a Shareholder in Val-Tex) and to enforce and protect the rights and interests of the Shareholders’ Representative arising out of or under or in any manner relating to this Agreement and each other agreement, document, instrument or certificate referred to herein or therein or the transactions provided for herein or therein (including, without limitation, in connection with any and all claims for indemnification brought under Article XI hereof and Reverse Merger Consideration adjustments pursuant to Section 2.5), and to take any and all actions that the Shareholders’ Representative believes are necessary or appropriate under this Agreement for and on behalf of the holders of the Shares, including, without limitation, asserting or pursuing any Legal Proceeding against KMG, Disappearing Sub and/or the Final Surviving Entity, defending any Third-Party Claims or claims by the KMG Indemnified Parties, consenting to, compromising or settling any such claims, conducting negotiations with KMG, the Final Surviving Entity and their respective representatives regarding such claims, and, in connection therewith, to (A) assert any Legal Proceeding or investigation; (B) investigate, defend, contest or litigate any claim initiated by KMG, the Final Surviving Entity or any other Person, or by any Governmental Body against the Shareholders’ Representative and any of the holders of the Shares, and receive process on behalf of any or all holders of the Shares in any such claim 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; (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 Legal Proceeding, 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 refrain from enforcing any right of the holders of the Shares or any of them and/or the Shareholders’ Representative arising out of or under or in any manner relating to this Agreement or any other agreement, instrument or document in connection with the foregoing; 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 or by the holders of the Shares unless such waiver is in writing signed by the waiving party or by the Shareholders’ Representative; and
(iv) to make, execute, acknowledge and deliver this Agreement, 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 or proper or convenient in connection with or to carry out the Transactions and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith, including retaining counsel, accountants and other experts and incurring fees and expenses.
(b) The Shareholders’ Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder. In order connection with this Agreement and any instrument, agreement or document relating hereto or thereto, and in exercising or failing to efficiently administer exercise all or any of the powers conferred upon the Shareholders’ Representative hereunder, (i) the waiver Shareholders’ Representative shall incur no responsibility whatsoever to any holders of the Shares by reason of any condition error in judgment or other act or omission performed or omitted under this Agreement or any such other agreement, instrument or document, excepting only responsibility for any act or failure to the obligations of the Sellers and the Owners to consummate the transactions contemplated herebyact that represents willful misconduct or gross negligence, and (ii) the defense and/or settlement Shareholders’ Representative shall be entitled to rely on the 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 holders of the Shares. Without prejudice to the foregoing, the Shareholders’ Representative shall have no Liability in respect of any claims for which Legal Proceeding brought against the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each Shareholders’ Representative by any holder of the Sellers Shares if the Shareholders’ Representative took or omitted taking any action in good faith. Each holder of the Shares shall indemnify, pro rata based upon such holder’s portion of the aggregate Reverse Merger Consideration, the Shareholders’ Representative against all losses, damages, Liabilities, claims, obligations, costs and each Owner hereby irrevocably appoints expenses, including reasonable attorneys’, accountants’ and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative and attorney-in-fact (the "REPRESENTATIVE").
(b) The Sellers other experts’ fees and the Owners hereby authorize the Representative amount of any judgment against them, of any nature whatsoever (i) to take including, but not limited to, any and all action necessary 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 (aa) any Legal Proceeding or in connection with any appeal thereof, relating to the waiver acts or omissions of the Shareholders’ Representative hereunder or otherwise. The foregoing indemnification shall not apply in the event of any condition Legal Proceeding that 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 the obligations holders of Shares as to the existence of a deficiency toward the payment of any Seller or any Owner such indemnification amount and the Shareholders’ Representative providing a reasonably detailed description as to consummate such deficiency, each holder of Shares shall promptly deliver to the transactions contemplated hereby, or (bb) the defense and/or settlement Shareholders’ Representative full payment of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf his ratable share of the Sellers and amount of such deficiency based upon such holder’s pro rata portion of the Owners by the terms of this Agreementaggregate Reverse Merger Consideration.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority All of the Owners will select another representative indemnities, immunities and powers granted to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Shareholders’ Representative for all purposes under this Agreement shall survive the Closing Date and/or any termination of this Agreement.
(d) All decisions KMG, Disappearing Sub, Surviving Sub and Final Surviving Entity shall have the right to rely upon all actions taken or omitted to be taken by the RepresentativeShareholders’ Representative pursuant to this Agreement, includingall of which actions or omissions shall be legally binding upon the holders of the Shares. Nothing in this Section 9.1 shall alter the obligations or rights of KMG or the Final Surviving Entity found in the rest of this Agreement, without limitationit being understood that the obligations of such parties under this Section 9.1 are limited to KMG’s payment of the Reverse Merger Consideration.
(e) Notwithstanding the other provisions of this Section 9.1, other than the last sentence of Section 9.1(d), unless the affected holder consents in writing, the Shareholders’ Representative shall not agree to any amendments or modifications of, and shall not execute and deliver any waivers or consents in connection with, this Agreement or the other agreements and documents referred to herein or therein, that (i) does not treat all holders of a particular series or class of the Shares equally in all material respects, (ii) increases the indemnity obligations of the holders of the Shares referenced in Sections 11.2 and 11.6, or (iii) increases the Indemnity Holdback.
(f) Subject to Section 9.1(e), the Share Surrender Forms shall include the provisions contained in Section 9.1(a) and Section 9.1(b) with such changes, additional terms, conditions, representations, warranties, releases, waivers, covenants, indemnities, consents and appointments as the Shareholders’ Representative either reasonably requests or deems necessary or appropriate for the consummation of the Transactions.
(g) The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any agreement between holder of the Shares; and (ii) shall survive the consummation of the transactions contemplated herein.
(h) Should the Shareholders’ Representative and resign or be unable to serve, either (A) the Purchaser Shareholders’ Representative shall appoint a single substitute agent to take on the responsibility of the Shareholders’ Representative hereunder or (B) if ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ relating III is unable to make such appointment, Councill shall appoint a single substitute agent to take on the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each responsibility of the Sellers and all Shareholders’ Representative hereunder, whose appointment shall be effective on the date of the Owners, and no Seller Shareholders’ Representative’s resignation or Owner will have the right to object, dissent, protest or otherwise contest the sameincapacity.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the The provisions of this Section 9.13 9.1 are independent (i) intended to be for the benefit of, and severable, are irrevocable and coupled with an interest and will shall be enforceable notwithstanding any rights by, the Shareholders’ Representative and such Person’s heirs, representatives, successors or remedies assigns, it being expressly agreed that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions such Persons shall be third party beneficiaries of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner9.1, and (ii) in addition to, and not in substitution for, any references in this Agreement other right to a Seller indemnification or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution contribution that any such Person may have by contract or otherwise.
Appears in 1 contract
Sources: Merger Agreement (KMG Chemicals Inc)
Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver of any condition to the obligations of the Sellers Each Shareholder irrevocably authorizes, directs and the Owners to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇S. ▇▇▇▇ ▇▇▇▇▇ (the “Shareholders’ Representative”) to act as hissole and exclusive agent, her or its representative and attorney-in-fact and representative of such Person and such Person’s heirs, representatives and successors to (i) take any and all actions (including without limitation executing and delivering any documents), incurring any costs and expenses for the "REPRESENTATIVE")account of the Shareholders, and making any and all determinations that may be required or permitted to be taken by the Shareholders in connection with this Agreement, including without limitation, all decisions relating to (A) the defense, settlement, or both of any Claims for which a QuadraMed Indemnitee may claim to be entitled to indemnification under this Article XI, (B) the Escrow Agreement, (C) the amendment or termination of this Agreement, and (D) any adjustment to the Merger Consideration contemplated by Section 2.3; and (ii) exercise such rights, power and authority as are incidental to the foregoing. Any actions, exercises of rights, power or authority and any decisions or determinations made by the Shareholders’ Representative shall be absolutely and irrevocably binding on each Shareholder as if each such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s individual capacity.
(b) The Sellers and With respect to the Owners hereby authorize the Representative matters covered by or related to this Agreement, (i) each Shareholder irrevocably relinquishes its right to take all act independently and other than through the Shareholders’ Representative with respect to such subject matter (except with respect to appointment of a successor Shareholders’ Representative), (ii) no Shareholder shall have any right to institute any suit, action necessary or proceeding against Tempus, QuadraMed, the Company or the Surviving Company or the Escrow Agent with respect to any such matter, any such right being irrevocably and exclusively delegated to the Shareholders’ Representative who may act on their behalf, (iii) each Shareholder shall be deemed to have waived any claims such Shareholder may have or assert, including those that may arise in the future, against the Shareholders’ Representative for any action or inaction taken or not taken by the Shareholders’ Representative in connection with herewith, except such action or inaction as may result from the willful misconduct or gross negligence of the Shareholders’ Representative, and (aaiv) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required Shareholders hereby severally agree to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereofShareholders’ Representative against, and (iii) to take hold him harmless from, any and all additional action as is contemplated to be taken by or on behalf of the Sellers and the Owners by the terms of this Agreement.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representativeexpenses, including, without limitation, (i) any agreement between the Representative attorneys’ fees and the Purchaser court costs, losses, costs, arbitration, tax liability and loss on investments suffered or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller incurred in connection with or Owner to consummate the transaction contemplated hereby, arising from or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution out of this Agreement, each except such acts or omissions as may result from the willful misconduct or gross negligence of the Sellers Shareholders’ Representative. Without limiting the generality of the foregoing, any notice hereunder delivered to QuadraMed or a QuadraMed Indemnitee by a Shareholder other than through the Shareholders’ Representative shall be of no effect, and each notice delivered by QuadraMed or any other QuadraMed Indemnitee to the Shareholders’ Representative shall be effective as against each Shareholder; provided, that QuadraMed and the Owners agree that:other QuadraMed Indemnitees may elect at their sole discretion to give effect to any notice delivered by any Shareholder.
(ic) the Purchaser or ▇▇▇▇▇▇▇ will be able The Shareholders’ Representative may resign at any time upon thirty (30) days notice by submitting a written resignation to rely conclusively QuadraMed, with copies to all other Shareholders at their addresses on the instructions and decisions stock books of Tempus. In the event of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereofdeath, physical or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser mental incapacity or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions resignation of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Shareholders’ Representative, the Shareholders shall promptly (and in his capacity as any event within thirty (30) days of notice of such event) appoint a successor Shareholders’ Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Sources: Merger Agreement (Quadramed Corp)
Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver of any condition to the obligations of the Sellers and the Owners to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereofBy executing this Agreement, each of the Sellers and each Owner Shareholder hereby irrevocably authorizes and appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ the Shareholders’ Representative as his, her or its such Person’s representative and attorney-in-fact to act on behalf of such Person with respect to this Agreement and the Escrow Agreement and to take any and all actions and make any decisions required or permitted to be taken by the Shareholders’ Representative pursuant to this Agreement or the Escrow Agreement, including
(i) give and receive notices and communications;
(ii) authorize delivery to the "REPRESENTATIVE")Parent of Escrow Shares in satisfaction of claims for indemnification made by the Parent pursuant to ARTICLE VI and ARTICLE VIII;
(iii) agree to, negotiate, and enter into settlements and compromises in respect of, and comply with orders or handle any other matters described in, Section 2.16, ARTICLE VI, or ARTICLE VIII;
(iv) litigate, arbitrate, resolve, settle, or compromise any claim for indemnification pursuant to ARTICLE VI or ARTICLE VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and the Escrow Agreement;
(vi) make all elections or decisions contemplated by this Agreement and the Escrow Agreement to be made by the Shareholders;
(vii) engage, employ, or appoint any agents or representatives (including attorneys, accountants, and consultants) to assist the Shareholders’ Representative in complying with his duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of the Shareholders’ Representative for the accomplishment of the foregoing.
(b) The Sellers and Notices or communications to or from the Owners hereby authorize Shareholders’ Representative shall constitute notice to or from each of the Shareholders. Further, each Shareholder acknowledges that such Shareholder has specifically authorized the Shareholders’ Representative (i) to take all action necessary in connection with (aa) the waiver accept service of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated herebyprocess, summons, complaint, subpoena, or (bb) the defense and/or settlement initiation of any claims for which any Seller or Owner may be required other legal action related to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or this Agreement on behalf of the Sellers and the Owners such Shareholder. The Shareholders’ Representative acknowledges that he will accept such service of process, summons, complaint, subpoena, or initiation of other legal action on behalf of each Shareholder. Any decision or action by the terms of this Agreement.
(c) In the event that the Shareholders’ Representative dieshereunder, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) including any agreement between the Shareholders’ Representative and the Purchaser or ▇▇▇▇▇▇▇ Parent relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated herebydefense, or (ii) the defense payment, or settlement of any claims for which the Sellers indemnification hereunder, shall constitute a decision or the Owners may action of all Shareholders and shall be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereoffinal, will be binding binding, and conclusive upon each of the Sellers and all of the Owners, and no Seller or Owner will such Shareholder. No Shareholder shall have the right to objectobject to, dissentdissent from, protest protest, or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the . The provisions of this Section 9.13 Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest interest, and will shall not be enforceable notwithstanding terminated by any rights act of any one or remedies that either Seller Shareholders, or by operation of Law, whether by death or other event.
(c) The Shareholders shall indemnify and hold harmless the Shareholders’ Representative from and against any Owner may have Losses, Liability or expense (including the hiring of legal counsel and the incurring of legal fees and costs) incurred without gross negligence or willful misconduct on the part of the Shareholders’ Representative and arising out of or in connection with the transactions contemplated acceptance or administration of its duties hereunder; provided, that in no event shall the indemnification obligation of any Shareholder exceed the Merger Consideration actually received by this Agreement; and
(iv) or due to such Shareholder hereunder. The Shareholders agree that any out-of-pocket costs and expenses incurred by the provisions Shareholders’ Representative in connection with actions taken by the Shareholders’ Representative pursuant to the terms of this Section 9.13 will Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) shall be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights responsibility of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseShareholders based on their Pro Rata Shares.
Appears in 1 contract
Sources: Merger Agreement (nFusz, Inc.)
Shareholders’ Representative. (a) In order Each Shareholder, by the approval and adoption of this Agreement, hereby irrevocably appoints the Shareholders’ Representative to efficiently administer act as agent, proxy and attorney in fact for such Shareholder, and authorizes the Shareholders’ Representative with full power of substitution to execute the Escrow Agreement and to do any and all things that may be necessary, convenient or appropriate to facilitate the consummation of the transactions contemplated by this Agreement and the Shareholder Related Agreements, including (i) the waiver of any condition to the obligations of the Sellers and the Owners take all action necessary to consummate the transactions contemplated herebyby this Agreement and the Escrow Agreement, and (ii) or the defense and/or settlement of any claims for which the Sellers or the Owners Shareholders may be required to indemnify the Purchaser or any other Indemnified Parties Party pursuant to Article 8 hereofVIII, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative and attorney-in-fact (the "REPRESENTATIVE").
(b) The Sellers and the Owners hereby authorize the Representative (iii) to take give and receive all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be notices required to indemnify be given under this Agreement, the Purchaser Indemnified Parties pursuant to Article 8 hereofEscrow Agreement or the Shareholder Related Agreements, and (iii) to authorize delivery to the Purchaser of any Escrow Shares in satisfaction of indemnification claims by the Purchaser in accordance with Article VIII, (iv) to make decisions on behalf of the Company and the Shareholders and take any and all additional action as is contemplated to be taken by or on behalf of the Sellers and the Owners Shareholders by the terms of this Agreement or the Escrow Agreement, including, without limitation regarding (A) indemnification claims, Direct Claims, Third-Party Claims and Notices of Claims, (B) amendments to this Agreement, the Escrow Agreement or the Shareholder Related Agreements, and (C) the Estimated Closing Statement, the Final Closing Statement, the Estimated Net Debt, the Net Debt and the Net Debt Surplus; provided, however, that, in the event that a Shareholder may be required to indemnify the Purchaser or any other Indemnified Party pursuant to Section 8.1(d), the Shareholders’ Representative shall coordinate the defense and/or settlement of any such claims with the applicable Shareholder.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(db) All decisions and actions by the Shareholders’ Representative, including, including without limitation, limitation (i) any agreement between the Shareholders’ Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners Shareholders may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereofVIII, will (ii) any agreement between the Shareholders’ Representative and the Purchaser relating to the Estimated Net Debt, the Net Debt or the Net Debt Surplus, and (iii) any agreement between the Shareholders’ Representative and the Purchaser relating to the Escrow Agreement or the determination of the Purchaser’s payment obligations under Section 1.4 or any other matter relating to Article I, shall be binding upon each of the Sellers and all of the OwnersShareholders, and no Seller or Owner will Shareholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) The Shareholders’ Representative shall not have any liability to any of the parties to this Agreement or to the Shareholders for any act done or omitted pursuant to this Agreement as the Shareholders’ Representative while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Shareholders shall severally indemnify the Shareholders’ Representative and hold the Shareholders’ Representative harmless against any loss, liability or expense incurred without fraud or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of the Shareholders’ Representative’s duties under this Agreement. The foregoing indemnification shall not be deemed exclusive of any other right or remedy to which the Shareholders’ Representative may be entitled apart from the provisions hereof.
(d) The Shareholders’ Representative shall have full power and authority on behalf of each Shareholder to take any and all actions on behalf of, execute any and all instruments on behalf of, and execute or waive any and all rights of, the Shareholders under this Agreement, the Escrow Agreement and the Shareholder Related Agreements.
(e) By their execution his, her or its approval of this Agreement and the transactions contemplated by this Agreement, each of Shareholder agrees, in addition to the Sellers and the Owners agree foregoing, that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will shall be able entitled to rely conclusively on the instructions and decisions of the Shareholders’ Representative as to (aaA) the settlement of any claims arising out for indemnification by the Purchaser pursuant to Article VIII, (B) actions taken in respect of Article 8 hereofindemnification claims, or Direct Claims, Third-Party Claims and Notices of Claims, and (bbC) any other actions required or permitted to be taken by the Shareholders’ Representative hereunderunder this Agreement, the Escrow Agreement and any Shareholder Related Agreement, and no party hereunder will Shareholder shall have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Shareholders’ Representative;
(ii) all actions, decisions and instructions of the Shareholders’ Representative will shall be conclusive and binding upon each of the Sellers Company and all of the Owners, Shareholders and no party hereto will Shareholder shall have any cause of action against the Representative, in his capacity as a Representative, Shareholders’ Representative for any action taken, decision made or instruction given by the Shareholders’ Representative under this Agreement, Agreement or the Escrow Agreement except for fraud or willful misconduct by the RepresentativeShareholders’ Representative in connection with the matters described in this Article IX;
(iii) the provisions of this Section 9.13 Article IX are independent and severable, are irrevocable and coupled with an interest and will shall be enforceable notwithstanding any rights or remedies that either Seller or any Owner Shareholder may have in connection with the transactions contemplated by this Agreement, the Escrow Agreement and the Shareholder Related Agreements; and
(ivf) the provisions of this Section 9.13 will Article IX shall be binding upon the executors, heirs, legal representatives Representatives, personal Representatives, successor trustees and successors of each Seller and each OwnerShareholder, and any references reference in this Agreement or the Escrow Agreement to a Seller Shareholder or an Owner will the Shareholders shall mean and include the successors to the rights of the Sellers and the Owners hereunderShareholders under this Agreement, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(g) All of the indemnities, immunities and powers granted to the Shareholders’ Representative under this Agreement shall survive the Closing and any termination of this Agreement and the Escrow Agreement. The Shareholders’ Representative has no duties or obligations, and makes no warranties, express or implied, in each case, except those expressly set forth in this Agreement.
(h) The Shareholders’ Representative hereby accepts its appointment and designation set forth in this Article IX, subject to the indemnification provisions stated herein.
Appears in 1 contract
Sources: Share Purchase Agreement (Sorrento Therapeutics, Inc.)
Shareholders’ Representative. (a) In order to efficiently administer (i) the determination of the Long Term Debt of EASTERN, Working Capital of EASTERN, and the Adjusted Merger Consideration, (ii) the waiver of any condition to the obligations of the Sellers and the Owners Shareholders to consummate the transactions contemplated hereby, and (iiiii) the defense and/or settlement of any claims for which the Sellers or the Owners Shareholders may be required to indemnify the Purchaser Indemnified Parties NETWORK pursuant to Article 8 VIII hereof, each of the Sellers and each Owner Shareholders hereby irrevocably appoints and designates designate Shareholder John D. Crawford as the▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative and attorney-in-fact ▇▇e (the "REPRESENTATIVEShareholders' Representative").
(b) The Sellers and the Owners Shareholders hereby authorize the Shareholders' Representative (i) to make all decisions relating to the determination of the Long Term Debt of EASTERN, the Working Capital of EASTERN, and the Adjusted Merger Consideration, (ii) to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner the Shareholders to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner the Shareholders may be required to indemnify the Purchaser Indemnified Parties NETWORK pursuant to Article 8 VIII hereof, (iii) to give and receive all notices required to be given under the Agreement, and (iiiiv) to take any and all additional action as is contemplated to be taken by or on behalf of the Sellers and the Owners Shareholders by the terms of this Agreement.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Shareholders' Representative, including, without limitation, (i) any agreement between the Shareholders' Representative and the Purchaser or ▇▇▇▇▇▇▇ NETWORK relating to the waiver determination of any condition to the obligations Long Term Debt of any Seller or Owner to consummate EASTERN, Working Capital of EASTERN, and the transaction contemplated herebyAdjusted Merger Consideration, or (ii) the defense or settlement of any claims for which the Sellers or the Owners Shareholders may be required to indemnify the Purchaser Indemnified Parties NETWORK pursuant to Article 8 VIII hereof, will shall be binding upon each of the Sellers and all of the OwnersShareholders, and no Seller or Owner will Shareholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver of any condition to the obligations Each of the Sellers and the Owners to consummate the transactions contemplated herebyShareholders hereby appoints, and (ii) effective upon the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereofReorganization HoldCo hereby appoints, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as his, her or its representative true and lawful attorney-in-fact and agent (the "REPRESENTATIVE"“Shareholders’ Representative”), with full power of substitution or resubstitution, to act solely and exclusively on behalf of HoldCo and each of the Shareholders with respect to the transactions contemplated by this Agreement and to act on behalf of HoldCo and each of the Shareholders 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 (including, without limitation, the Escrow Agreement) as the Shareholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated hereby, including the power:
(i) to act for HoldCo and each of 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 HoldCo and each of the Shareholders;
(ii) to act for HoldCo and each of the Shareholders with regard to matters pertaining to litigation;
(iii) to execute and deliver all documents in connection with the transactions contemplated hereby or amendments thereto that the Shareholders’ Representative deems necessary or appropriate;
(iv) to receive funds, make payments of funds, and give receipts for funds;
(v) to receive funds for the payment of expenses of HoldCo and each of the Shareholders and apply such funds in payment for such expenses;
(vi) to do or refrain from doing any further act or deed on behalf of HoldCo and each 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 HoldCo and each of the Shareholders could do if personally present; and
(vii) to receive service of process in connection with any claims under this Agreement.
(b) The Sellers appointment of the Shareholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Buyer and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Owners hereby authorize Shareholders’ Representative in all matters referred to herein. Any action taken by the Shareholders’ Representative (i) must be in writing and must be signed by the Shareholders’ Representative. All notices required to take be made or delivered by Buyer to the Company and HoldCo and each of the Shareholders described above shall be made to the Shareholders’ Representative for the benefit of HoldCo and each of the Shareholders and shall discharge in full all action necessary notice requirements of Buyer, as applicable, to HoldCo and each of the Shareholders with respect thereto. By appointment of the Shareholders’ Representative, HoldCo and each of the Shareholders thereby confirm all that the Shareholders’ Representative shall do or cause to be done by virtue of his appointment as the representative of HoldCo and each of the Shareholders hereunder. The Shareholders’ Representative shall act for HoldCo and each of the Shareholders on all of the matters set forth in connection this Agreement in the manner the Shareholders’ Representative believes to be in the best interest of HoldCo and each of the Shareholders and consistent with (aa) the waiver of any condition to the obligations of any Seller HoldCo and each of the Shareholders under this Agreement, but the Shareholders’ Representative shall not be responsible to HoldCo or any Owner to consummate of the transactions contemplated hereby, or (bb) the defense and/or settlement of Shareholders for any claims for damages which any Seller of HoldCo or Owner any of the Shareholders may be required to indemnify suffer by the Purchaser Indemnified Parties pursuant to Article 8 hereofperformance of such duties under this Agreement, other than damages arising from willful violation of applicable Law or gross negligence in the performance of such duties under this Agreement. The Shareholders’ Representative shall not have any duties or responsibilities except those expressly set forth in this Agreement, and (iii) to take any and all additional action as is contemplated to no implied covenants, functions, responsibilities, duties or liabilities shall be taken by read into this Agreement or on behalf of shall otherwise exist against the Sellers and the Owners by the terms of this AgreementShareholders’ Representative.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the If at any time there is no Shareholders’ Representative, includingthe Shareholders will appoint a Shareholders’ Representative within 15 calendar days. If the Shareholders fail to so appoint a Shareholders’ Representative, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇. ▇▇▇▇▇▇▇ will be able the replacement Shareholders’ Representative. The Shareholders may appoint a replacement Shareholders’ Representative at any time by delivery to rely conclusively Buyer of a writing executed by each of the Principal Shareholders. If at any time there is no Shareholders’ Representative, notice to CHWWA will be deemed adequate notice as if it had duly been given to a Shareholders’ Representative.
(d) The Shareholders’ Representative shall be entitled to rely, and shall be fully protected in relying, upon any statements furnished to it by HoldCo and each of the Shareholders, Buyer or any other evidence deemed by the Shareholders’ Representative to be reliable, and the Shareholders’ Representative shall be entitled to act on the instructions advice of counsel selected by it. The Shareholders’ Representative shall be fully justified in failing or refusing to take any action under this Agreement unless he shall have received such advice or concurrence of HoldCo and decisions each of the Shareholders as he deems appropriate or he shall have been expressly indemnified to his satisfaction by HoldCo and each of the Shareholders against any and all Liability and expense that the Shareholders’ Representative as may incur by reason of taking or continuing to (aa) the settlement of take any claims arising out of Article 8 hereofsuch action. The Shareholders’ Representative shall in all cases be fully protected in acting, or (bb) any other actions required to be taken by refraining from acting, under this Agreement in accordance with a request of HoldCo and each of the Representative hereunderShareholders, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for such request, and any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actionsfailure to act pursuant thereto, decisions and instructions of the Representative will shall be conclusive and binding upon HoldCo and each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseShareholders.
Appears in 1 contract
Sources: Reorganization Agreement (Westwood Holdings Group Inc)
Shareholders’ Representative. (a) In order to administer efficiently administer (i) the waiver registration of any condition the Parent Stock pursuant to the obligations of the Sellers Registration Agreement and the Owners to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims Parent Claims for which members of the Sellers or the Owners Parent Group may be required entitled to indemnify the Purchaser Indemnified Parties indemnification pursuant to Article 8 hereof, each Shareholder at the Effective Time, by virtue of the Sellers Merger and his receipt of any Merger Consideration and without any further act of such Shareholder, and each Owner Executive by executing and delivering the Transaction Bonus Agreements and in accordance with the terms thereof and without any further act of such Executive, hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ appoint the Shareholders' Representative as his, her or its representative their agent and attorney-in-fact (for purposes of Article 8, the "REPRESENTATIVE")Escrow Agreement and the Registration Agreement , and the Shareholders' Representative hereby accepts such appointment.
(b) The Sellers Shareholders and the Owners Executives hereby authorize the Shareholders' Representative (i) to take any action permitted or required to be taken by any Shareholder pursuant to the Registration Agreement; (ii) consent 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 him under the Escrow Agreement (including, without limitation, the exercise of the power to authorize delivery to the Parent Group of the Escrow Shares and Escrow Cash out of the Escrow Fund in satisfaction of claims by the Parent Group); (iii) to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims Parent Claims for which any Seller or Owner the Shareholders may be required to indemnify members of the Purchaser Indemnified Parties Parent Group pursuant to Article 8 hereof, hereof (but only with respect to Parent Claims payable solely out of the Escrow Fund); and (iiiiv) during the time that property remains in the Escrow Fund, to take any give and receive all additional action as is contemplated notices required to be taken by or on behalf of given under this Agreement, the Sellers Escrow Agreement and the Owners by the terms of this Registration Agreement.
(c) In the event that the Shareholder's Representative dies, is unable or becomes unable to perform his responsibilities hereunder or resigns from such position, the remaining Shareholders shall, by election of the Shareholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the Owners will shares of Common Stock issued and outstanding immediately prior to the Effective Time, select another representative to fill each such vacancy and such substituted representative will shall be irrevocably appointed and designated deemed to be the Shareholders' Representative for all purposes of this Agreement.
(d) All decisions and actions by the Shareholders' Representative, includingincluding actions under the Registration Agreement, without limitation, (i) any agreement between the Representative Escrow Agreement and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims Parent Claims for which the Sellers or the Owners Shareholders may be required to indemnify members of the Purchaser Indemnified Parties Parent Group pursuant to Article 8 hereofhereof (but only with respect to Parent Claims payable solely out of the Escrow Fund), will shall be binding upon each of the Sellers and all of the OwnersShareholders, and no Seller or Owner will Shareholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this AgreementEach Shareholder, each by virtue of the Sellers Merger and his receipt of any Merger Consideration, and each Executive, by executing and delivering the Owners agree Transaction Bonus Agreements, shall be deemed to have agreed, that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will Parent shall be able to rely conclusively on the instructions and decisions of the Shareholders' Representative as relating to (aa) the registration of the Parent Stock or to the settlement of any claims arising out Parent Claims for indemnification by members of the Parent Group pursuant to Article 8 hereof, hereof and the Escrow Agreement or (bb) any other actions permitted or required to be taken by the Shareholders' Representative hereunder, and no party hereunder will shall have any cause of action against any member of the Purchaser or ▇▇▇▇▇▇▇ Parent Group for any action taken by any member of the Purchaser or ▇▇▇▇▇▇▇ Parent Group in reliance upon the instructions or decisions of the Shareholders' Representative;
(ii) all actions, decisions and instructions of the Shareholders' Representative will shall be conclusive and binding upon each of the Sellers and all of the Owners, Shareholders and the Executives and no party hereto will Shareholder or Executive shall have any cause of action against the Representative, in his capacity as a Representative, Shareholders' Representative for any action taken or not taken, decision made or instruction given by the Shareholders' Representative under this Agreement or the Escrow Agreement, except for fraud or willful misconduct breach of this Agreement or the Escrow Agreement by the Shareholders' Representative;
(iii) the provisions of this Section 9.13 2.8 are independent and severable, are irrevocable and coupled with an interest and will shall be enforceable notwithstanding any rights or remedies that either Seller any Shareholder or any Owner Executive may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will 2.8 shall be binding upon the executors, heirs, legal representatives representatives, successors and successors assigns of each Seller Shareholder and each OwnerExecutive, and any references in this Agreement to a Seller Shareholder or an Owner will the Shareholders shall mean and include the successors to the Shareholders' rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise, and any references in this Agreement to an Executive or the Sellers Executives shall mean and include the Owners successors to the Executives' rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) Parent shall have no liability for any fees or expenses of the Shareholders' Representative. The reasonable expenses incurred by the Shareholders' Representative while acting on behalf of the Shareholders under the authorization granted in this Section 2.8 shall be borne by the Shareholders pro rata and shall be payable out of the Escrow Fund; PROVIDED, HOWEVER, that the aggregate amount of any payments to the Shareholders' Representative out of the Escrow Fund pursuant to this Section 2.8(f) shall not exceed $10,000. Parent shall be entitled, without making any inquiry as to the validity or amount of the fees or expenses to be reimbursed, to rely on the written instructions of the Shareholders' Representative regarding payments in respect of the Shareholders' Representative's fees and expenses as conclusive evidence of the Shareholders' Representative right to receive such amounts.
Appears in 1 contract
Sources: Merger Agreement (Mro Software Inc)
Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver of any condition The Dandrit Consenting Holders have voted for and consented to the obligations execution and adoption of the Sellers this Agreement and the Owners to consummate approval of the transactions contemplated hereby, including but not limited to the Exchange, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby have irrevocably appoints and designates ▇▇▇▇appointed attorney Niels ▇▇▇▇ ▇▇▇▇▇▇▇ as histhe Shareholders’ Representative to act on behalf of the Dandrit Consenting Shareholders, her with the same effect as if each such Dandrit Consenting Shareholder had individually appointed such Shareholders’ Representative, with full power and authority to act in the name of and for and on behalf of each Dandrit Consenting Shareholder with respect to all matters arising in connection with, or its representative related to, this Agreement and the transactions contemplated hereby and thereby. Each of the matters referred to in this Section 1.7 shall be deemed to have been accepted, agreed upon, acknowledged or consented to, as applicable, by each Dandrit Consenting Shareholder upon the vote or consent by such Dandrit Consenting Shareholder for the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Exchange. The Shareholders’ Representative has been appointed (i) the agent and true and lawful attorney-in-fact of each Dandrit Consenting Shareholder, with full power of substitution, and with full capacity and authority in its sole discretion, to act in the name of and for and on behalf of each Dandrit Consenting Shareholder in connection with all matters arising out of, resulting from, contemplated by or related or incident to this Agreement, and (ii) the "REPRESENTATIVE").
(b) The Sellers agent for service of process for each Dandrit Consenting Shareholder, and the Owners hereby authorize Dandrit Consenting Shareholders have irrevocably consented to the service of any and all process in any action or proceeding arising out of or relating to this Agreement by the delivery of such process to the Shareholders’ Representative. Without limiting the generality of the foregoing, the power of the Shareholders’ Representative shall include the power to represent each Dandrit Consenting Shareholder with respect to all aspects of this Agreement, which power shall include, without limitation, the power to (i) to waive any and all conditions of this Agreement, (ii) amend this Agreement and any agreement executed in connection herewith or therewith in any respect, (iii) receive notices or other communications, (iv) deliver any notices, certificates or other documents required, and (v) take all such other action and to do all such other things as the Shareholders’ Representative deems necessary in connection or advisable with respect to this Agreement. ▇▇▇▇▇▇ and Dandrit shall have the absolute right and authority to rely upon the acts taken or omitted to be taken by the Shareholders’ Representative on behalf of the Dandrit Consenting Shareholders. Each Dandrit Consenting Shareholder has acknowledged and agreed that (aai) all deliveries by Dandrit or the waiver of Parent including, without limitation, any condition payment, to the obligations Shareholder’ Representative shall be deemed deliveries to the Dandrit Consenting Shareholders, (ii) ▇▇▇▇▇▇ or Dandrit shall not have any liability with respect to any aspect of the distribution or communication of such deliveries between the Shareholders’ Representative and any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, Dandrit Consenting Shareholder and (iii) any disclosure made to take any and all additional action as is contemplated to be taken the Shareholders’ Representative by or on behalf of the Sellers and the Owners by the terms of this Agreement.
(c) ▇▇▇▇▇▇ or Dandrit shall be deemed to be a disclosure made to each Dandrit Consenting Shareholder. In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or attorney Niels ▇▇▇▇ ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated herebyrefuses to, or (ii) is no longer capable of, serving as the defense or settlement Shareholders’ Representative hereunder, holders of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each a majority of the Sellers issued and all outstanding capital stock of the Owners, Dandrit shall promptly appoint a successor Shareholders’ Representative who shall be reasonably acceptable to Dandrit and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will shall thereafter be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the a successor Shareholders’ Representative hereunder, and no the Shareholders’ Representative shall serve until such successor is duly appointed and qualified to act hereunder. The Dandrit Consenting Shareholders shall indemnify, defend and hold harmless the Shareholders’ Representative from and against any and all loss, liability, cost, damage and expense, including, without limitation, reasonable counsel fees and third party hereunder will have expenses which the Shareholders’ Representative may suffer or incur by reason of any cause of action action, claim or proceeding brought against the Purchaser Stockholders’ Representative arising out of or ▇▇▇▇▇▇▇ for relating in any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under way to this Agreement, except for fraud or any transaction to which this Agreement relates, unless such losses, liabilities, costs damages and expenses shall have been finally adjudicated to have resulted from the willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights gross negligence of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseShareholders’ Representative.
Appears in 1 contract
Sources: Share Exchange Agreement (DanDrit Biotech USA, Inc.)
Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver of Each Shareholder by executing this Agreement and without any condition to the obligations of the Sellers further action, irrevocably constitutes and the Owners to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as histhe “Shareholders Representative”, her or its representative such Shareholder’s true and lawful attorney-in-fact and exclusive agent, with full power of substitution, and authorizes the Shareholders Representative acting for such Shareholder and in such Shareholder’s name, place and stead, in any and all capacities to do and perform every act and thing required, permitted, necessary or desirable to be done in connection with the transactions contemplated by this Agreement, the Ancillary Documents, and the transactions contemplated hereby and thereby, as fully to all intents and purposes as such Shareholder might or could do in person, including to:
(i) take any and all actions (including, without limitation, executing and delivering any documents or amendments, incurring any costs and expenses on behalf of the "REPRESENTATIVE")Shareholders) and make any and all determinations which may be required or permitted in connection with the implementation of this Agreement, the Ancillary Documents, and the transactions contemplated hereby and thereby;
(ii) give and receive notices and communications under this Agreement, the Ancillary Documents, and the transactions contemplated hereby and thereby;
(iii) negotiate, defend, settle, compromise and otherwise handle and resolve any and all claims and disputes with VIH, Holdco, Merger Sub, Target Company or their respective Affiliates arising out of or in respect of this Agreement, the Ancillary Documents, and the transactions contemplated hereby and thereby;
(iv) retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with all matters and things set forth or necessary with respect to this Agreement, the Ancillary Documents, and the transactions contemplated hereby and thereby; and
(v) to make any other decision or election or exercise such rights, power and authority as are incidental to the foregoing or that is, in the opinion of the Shareholders Representative, necessary or advisable to effectuate the foregoing.
(b) The Sellers ▇▇▇▇▇▇ ▇▇▇▇ hereby accepts appointment and authorization to act as the Owners hereby authorize Shareholders Representative as the Representative (i) to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, attorney-in-fact and (iii) to take any and all additional action as is contemplated to be taken by or exclusive agent on behalf of the Sellers and the Owners by Shareholders in accordance with the terms of this Agreement. From and after the VIH Merger Effective Time, Holdco, the Surviving VIH Company and its Affiliates are entitled to deal exclusively with ▇▇▇▇▇▇ ▇▇▇▇ in his capacity as Shareholders Representative on all matters relating to this Agreement and the Ancillary Documents and the transactions contemplated hereby and thereby to the extent the Shareholders Representative has authority to act on such matter pursuant to this Agreement.
(c) In Each of the event Shareholders acknowledges and agrees that upon execution of this Agreement, upon any delivery by the Shareholders Representative diesof any waiver, becomes unable amendment, agreement, opinion, certificate or other document executed by the Shareholders Representative, such Shareholder shall be bound by such documents as fully as if such Shareholder had executed and delivered such documents; provided that, any amendment to perform his responsibilities this Agreement materially and adversely affecting the rights of Shareholders (including amendments materially and adversely affecting (i) the percentage of Aggregate Share Consideration allocable to each Shareholder in connection with the consummation of the transactions contemplated hereunder or resigns (ii) the economic or voting rights of Shareholders in Holdco following Closing, but other than any dilution resulting from such positionthe issuance, exercise, conversion or exchange of any Equity Interests of FinAccel) will require approval of the Shareholders holding a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated voting power of the Representative for all purposes outstanding Equity Interests of this Agreementthe Target Company.
(d) All decisions and actions by Upon the Representativedeath, including, without limitation, (i) any agreement between disability or incapacity of the initial Shareholders Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties appointed pursuant to Article 8 hereofSection 13.18(a), will be binding upon each of the Sellers Shareholders acknowledges and agrees then such Person as is appointed by the Shareholders who held a majority of the voting power of the outstanding Equity Interests of the Target Company, voting as a single class, immediately prior to the Closing shall be the Shareholders Representative. The Shareholders Representative may resign at any time; provided that it must provide the Shareholders who held a majority of the voting power of the Equity Interests of the Target Company immediately prior to Closing thirty (30) days’ prior written notice of such decision to resign. The Shareholders Representative shall not receive compensation for service in such capacity. The designation of any Person as the Shareholders Representative is and shall be coupled with an interest, and, except as set forth in this Section 13.18, such designation is irrevocable and shall not be affected by the death, incapacity, illness, bankruptcy, dissolution or other inability to act of any of the Shareholders.
(e) Any and all actions taken or not taken, exercises of rights, power or authority and any decision or determination made by the Shareholders Representative in connection herewith shall be absolutely and irrevocably binding upon the Shareholders as if such Person had taken or not taken such action, exercised such rights, power or authority or made such decision or determination in its own capacity, and VIH, Holdco and Merger Sub may rely upon such action, exercise of right, power, or authority or such decision or determination of the OwnersShareholders Representative as the action, inaction, exercise, right, power, or authority, or decision or determination of such Person, and no Seller or Owner will Shareholder shall have the right to object, dissent, protest or otherwise contest the same. Each of VIH, Holdco and Merger Sub is hereby relieved from any liability to any Person for any acts done by the Shareholders Representative and any acts done by VIH, Holdco and Merger Sub in accordance with any decision, act, consent or instruction of the Shareholders Representative.
(ef) By their execution of this AgreementOn the date hereof, each Shareholder has provided to the Shareholders Representative a duly executed copy of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions each signature page required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have such Shareholder in connection with the transactions contemplated Ancillary Documents. Each such signature page shall be released by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon Shareholders Representative at the executors, heirs, legal representatives and successors Closing without further authorization or action necessary on behalf of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseShareholder.
Appears in 1 contract
Sources: Business Combination Agreement (VPC Impact Acquisition Holdings II)
Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver Each Indemnitor, by virtue of its receipt of any condition Initial Per Share Payment or Initial Option Payment, as applicable, shall be deemed to have consented and agreed to the obligations appointment, effective as of the Sellers and the Owners to consummate the transactions contemplated herebyClosing Date, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as histhe Shareholders’ Representative for purposes of this Agreement, her or its representative and attorneyas attorneys-in-fact (the "REPRESENTATIVE").
(b) The Sellers for such Indemnitor, with full power of substitution and the Owners hereby authorize the Representative authority to (i) to take all action necessary in connection with (aa) the execute any amendment or waiver of this Agreement and any condition other document or instrument necessary or advisable in order to carry out the obligations provisions of any Seller or any Owner this Agreement, (ii) to consummate the transactions contemplated herebygive and receive notices and communications, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to dispute any claim for indemnification hereunder, (iv) to agree to, negotiate, enter into settlements and compromises of, and to comply with Orders with respect to, any dispute or Loss, and to take any and all additional action as is contemplated to be taken by actions necessary or on behalf appropriate in the judgment of the Sellers and Shareholders’ Representative for the Owners by accomplishment of the terms of this Agreement.
(c) In the event foregoing; provided, however, that the Shareholders’ Representative diesshall not have the power or authority to execute an amendment, becomes unable waiver, document or other instrument that, notwithstanding any other provision to perform his responsibilities hereunder the contrary, increases in any material respect the obligations or resigns from liabilities of any Indemnitor without the prior written consent of such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or Indemnitor. ▇▇▇▇▇ ▇▇▇▇▇▇ relating hereby consents and agrees to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties such appointment pursuant to Article 8 hereofthis Section 10.9. The Shareholders’ Representative shall be provided reasonable access to information regarding the Company and the Surviving Corporation for the purpose of performing its duties hereunder; provided, will be binding upon each of however that the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the sameShareholders’ Representative shall treat confidentially any non-public information.
(eb) By their execution In all matters relating to this Article X, the Shareholders’ Representative shall be the only party entitled to assert the rights of the Company Indemnified Persons. The Indemnitors shall be bound by all actions taken by the Shareholders’ Representative in his or her capacity as such, except for any action that conflicts with the limitations set forth in clause (d) of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able Section 10.9. Parent is authorized to rely conclusively on the instructions and decisions any such action of the Shareholders’ Representative as to (aa) being the settlement duly authorized action of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, Indemnitors and no party hereunder will shall have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ Parent for any action taken by the Purchaser or ▇▇▇▇▇▇▇ Parent in reliance upon the instructions instructions, decisions or decisions actions of the Shareholders’ Representative;
(ii) . The Parent Indemnified Persons shall be entitled to rely on all actionsstatements, representations, decisions and instructions actions of the Shareholders’ Representative.
(c) The Shareholders’ Representative will shall promptly provide written notice to the Indemnitors of any action taken on their behalf by the Shareholders’ Representative pursuant to the authority delegated to the Shareholders’ Representative under this Section 10.9. 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 conclusive and binding upon each in the best interests of the Sellers and all of Indemnitors. Neither the Owners, and no party hereto will have any cause of action against the Shareholders’ Representative, in his capacity as a Representativenor 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, decision made suffered or instruction given by the Representative omitted to be taken, under this Agreement, except for fraud in the case of its gross negligence, bad faith or willful misconduct misconduct. The Shareholders’ Representative may consult with legal counsel, independent public accountants and other experts selected by him or her and shall not be liable for any action taken or omitted to be taken in good faith by him or her in accordance with the Representative;advice of such counsel, accountants or 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. As to any matters not expressly provided for in this Agreement, the Shareholders’ Representative shall not exercise any discretion or take any action.
(iiid) Notwithstanding anything to the contrary contained herein, (i) the provisions Shareholders’ Representative is not authorized to, and shall not, accept on behalf of any Shareholder any consideration to which such Indemnitor is entitled under this Section 9.13 are independent Agreement and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(ivii) the provisions of this Section 9.13 will be binding upon the executorsShareholders’ Representative shall not in any manner exercise, heirsor seek to exercise, legal representatives and successors of each Seller and each Owner, and any references in this Agreement voting power whatsoever with respect to a Seller or an Owner will mean and include the successors to the rights securities of the Sellers and Company now or hereafter owned of record or beneficially by any Indemnitor unless the Owners hereunder, whether pursuant Shareholders’ Representative is expressly authorized to testamentary disposition, the laws of descent and distribution or otherwisedo so in a writing signed by such Indemnitor.
Appears in 1 contract
Sources: Merger Agreement (Computer Associates International Inc)
Shareholders’ Representative. (a) In order to administer efficiently administer (i) the waiver of any condition to the rights and obligations of the Sellers Shareholders under this Agreement, the Shareholders hereby designate and the Owners to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇appoint ▇▇▇ as histhe Shareholders' Representative, her or its representative to serve as the Shareholders' agent and attorney-in-fact (for the "REPRESENTATIVE")limited purposes set forth in this Agreement.
(b) The Sellers Each of the Shareholders 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 Owners hereby authorize the Representative full power and authority on such Shareholder's behalf (i) to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated herebyby this Agreement, or (bbii) to disburse any funds received hereunder to the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereofShareholders, and (iii) to take execute and deliver on behalf of each Shareholder any amendment or waiver under this Agreement, and to agree to resolution of all Adjustments pursuant to Section 1.4 or 10, and of all Claims hereunder, (iv) to retain legal counsel and other professional services, at the expense of the Shareholders, in connection with the performance by the Shareholders' Representative of this Agreement, and (v) to do each and every act and exercise any and all additional action as is contemplated rights which such Shareholder or Shareholders are permitted or required to be taken by do or on behalf exercise under this Agreement and the other agreements, documents and certificates executed in connection herewith. Each of the Sellers Shareholders agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the Owners by consent of the terms Shareholders' Representative and shall survive the death, bankruptcy or other incapacity of this Agreementany Shareholder.
(c) Each of the Shareholders hereby agrees that any amendment or waiver under this Agreement, 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 Adjustment or Claim (including any action taken to object to, defend, compromise or agree to the payment of such Adjustment or Claim), shall be effective if approved in writing by the Shareholders' Representative and the holders of a majority of the Corporation's Stock (including any Corporation's Stock held by the Shareholders' Representative), or, in the case of any amendment or waiver made or given or action taken after the Closing, if so approved by persons who were the holders of a majority of the Corporation's Stock immediately prior to the Closing, and that each and every action so taken shall be binding and conclusive on every Shareholder, whether or not such Shareholder had notice of, or approved, such amendment or waiver.
(d) ▇▇▇ shall serve as the Shareholders' Representative until he resigns or is otherwise unable or unwilling to serve. In the event that the a Shareholders' Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such positionposition or is otherwise unable or unwilling to serve, the remaining Shareholders shall select, by the vote of the holders of a majority of the Owners will select another Corporation's Stock immediately prior to the Closing, a successor representative to fill each such vacancy vacancy, shall provide prompt written notice to United of such change and such substituted representative will shall then be irrevocably appointed and designated deemed to be the Shareholders' Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Shareholders’ Representative. (a) In order Pursuant to efficiently administer (i) the waiver of any condition this Agreement with respect to the obligations of the Sellers and the Owners to consummate the transactions contemplated herebyKey Stockholder, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each written consent of the Sellers Shareholders dated on or about the date hereof with respect to the other Shareholders, the Shareholders have or will have constituted, appointed and each Owner hereby irrevocably appoints empowered effective from and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ after the date of such consent, Globe Shareholder Rep, LLC as histhe Shareholders’ Representative, her or its representative for the benefit of the Shareholders and as the exclusive agent and attorney-in-fact (the "REPRESENTATIVE").
(b) The Sellers and the Owners hereby authorize the Representative (i) to take all action necessary act on behalf of each Shareholder in connection with (aa) and to facilitate the waiver consummation of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or which shall include the power and authority:
(bbi) to negotiate, execute and deliver such waivers, consents and amendments (other than (A) the defense and/or settlement written consent referred to in this sentence and (B) any written consent of the Shareholders adopting this Agreement) under this Agreement and the consummation of the transactions contemplated hereby 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 Shareholders and to enforce and protect the rights and interests of such Persons arising out of or under or in any claims manner relating to this Agreement and the transactions provided for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereofherein, and (iii) to take any and all additional action as is contemplated to be taken by Actions which the Shareholders’ Representative believes are necessary or appropriate under this Agreement for and on behalf of the Sellers Shareholders including, consenting to, compromising or settling any claims, conducting negotiations with PLC, Parent, Merger Sub, the Surviving Corporation and their respective Representatives regarding such claims, and, in connection therewith, to (A) assert or defend any claim or institute any Action, proceeding or investigation; (B) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by PLC, Parent, Merger Sub, the Surviving Corporation or any other Person, or by any Governmental Entity against the Shareholders’ Representative and/or any of the Shareholders, and receive process on behalf of any or all Shareholders in any 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 refrain from enforcing any right of the Shareholders arising out of or under or in any manner relating to this Agreement; 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 or by the Shareholders unless such waiver is in 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 or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement;
(v) to engage special counsel, accountants and other advisors and incur such other expenses on behalf of the Shareholders in connection with any matter arising under this Agreement; and
(vi) to collect, hold and disburse (or cause its designees to collect, hold and disburse) any part of the Initial Purchase Price, the Final Purchase Price, the Purchase Price Adjustment Escrow Amount and the Owners by Expense Holdback Amount in accordance with the terms of this Agreement.
(cb) The Shareholders’ Representative shall be entitled to receive reimbursement from, and be indemnified by, the Shareholders for certain expenses, charges and Liabilities as provided below. In connection with this Agreement, and in exercising or failing to exercise all or any of the powers conferred upon the Shareholders’ Representative hereunder, (i) the Shareholders’ Representative shall incur no responsibility whatsoever to any Shareholder 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 (ii) the Shareholders’ Representative shall be entitled to rely on the 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 Shareholder. Each Shareholder shall indemnify, severally and not jointly, based on such Shareholder’s Pro Rata Portion, the Shareholders’ Representative against all losses, damages, Liabilities, claims, obligations, costs and expenses, 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 acts or omissions of the Shareholders’ Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholders’ Representative hereunder for its willful misconduct. The Shareholders’ Representative shall have the right to recover, at its sole discretion, from the Expense Holdback Amount, prior to any distribution to the Shareholders, any amounts to which it is entitled pursuant to the expense reimbursement and indemnification provisions of this Section 9.16. In the event that of any indemnification hereunder, upon written notice from the Shareholders’ Representative diesto the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, becomes unable each Shareholder shall promptly deliver to perform his responsibilities hereunder or resigns from such position, a majority the Shareholders’ Representative full payment of its Pro Rata Portion of the Owners will select another representative amount of such deficiency. The Shareholders’ Representative shall be entitled to fill refuse to take or to continue to take any action hereunder unless it shall first be fully indemnified to its reasonable satisfaction by the Shareholders (based on their respective Pro Rata Portions) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Shareholders’ Representative shall establish such terms and procedures for administering, investing and disbursing any amounts from the Expense Holdback Amount as it may determine in its reasonable judgment to be necessary, advisable or desirable to give effect to the provisions of this Agreement. If any balance of the Expense Holdback Amount remains undisbursed at such time as all disputes, claims and other matters relating to the transactions contemplated by this Agreement and all other instruments and agreements to be delivered pursuant hereto have been finally resolved, then the Shareholders’ Representative shall distribute to each Shareholder, by wire transfer of immediately available funds to an account designated by each Shareholder, such vacancy Shareholder’s Pro Rata Portion of such remaining balance of the Expense Holdback Amount (“Expense Holdback Distribution Amount”).
(c) All of the indemnities, immunities and such substituted representative will be irrevocably appointed and designated powers granted to the Shareholders’ Representative for all purposes under this Agreement shall survive the Effective Time and/or any termination of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative Parent and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will Surviving Corporation shall have the right to objectrely upon all actions taken or omitted to be taken by the Shareholders’ Representative pursuant to this Agreement, dissent, protest all of which actions or otherwise contest omissions shall be legally binding upon the sameShareholders.
(e) By their execution The grant of this Agreement, each of the Sellers and the Owners agree that:
authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the Purchaser death, incompetency, bankruptcy or ▇▇▇▇▇▇▇ will be able to rely conclusively on liquidation of any Shareholder and (ii) shall survive the instructions and decisions consummation of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunderMerger, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser Shareholders’ Representative pursuant to the authority granted in this Agreement shall be effective and absolutely binding on each Shareholder notwithstanding any contrary action of or ▇▇▇▇▇▇▇ in reliance upon the instructions direction from such Shareholder, except for actions or decisions omissions of the Representative;Shareholders’ Representative constituting willful misconduct.
(iif) all actions, decisions and instructions Each of the Company, PLC, Parent and Merger Sub acknowledges and agrees that the Shareholders’ Representative will be conclusive and binding upon is a party to this Agreement solely to perform certain administrative functions in connection with the consummation of the transactions contemplated hereby. Accordingly, each of the Sellers Company, Merger Sub and all Parent acknowledges and agrees that the Shareholders’ Representative shall have no Liability to, and shall not be liable for any losses of, any of the OwnersCompany, and no party hereto will have Merger Sub or Parent in connection with any cause obligations of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Shareholders’ Representative under this AgreementAgreement or otherwise in respect of this Agreement or the transactions contemplated hereby, except for fraud or to the extent such losses shall be proven to be the direct result of willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have Shareholders’ Representative in connection with the transactions contemplated by this Agreement; and
(iv) the provisions performance of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners its obligations hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Sources: Merger Agreement (Endava PLC)
Shareholders’ Representative. (a) In order to efficiently administer (i) The Shareholders’ Representative confirms that each AgEagle Shareholder has signed a Letter of Transmittal in the waiver of any condition form attached as Exhibit B prior to the obligations execution and delivery of the Sellers and the Owners to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties this Agreement pursuant to Article 8 hereof, which each of the Sellers and each Owner AgEagle Shareholder hereby irrevocably appoints and designates has appointed B▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative the Shareholders’ Representative and as agent and attorney-in-fact (for and on behalf of each AgEagle Shareholder, with full powers of substitution, to give and receive notices and communications, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution and comply with orders of arbitrators, courts, tribunals or other Governmental Entities and awards of arbitrators, courts, tribunals or other Governmental Entities with respect to any claims or other matters that may arise under this Agreement or the "REPRESENTATIVE").
(b) The Sellers other ancillary transaction documents, and the Owners hereby authorize the Representative (i) to take all action actions and execute all such documents necessary or appropriate in connection with (aa) the waiver good faith discretion of any condition to the obligations Shareholders’ Representative for the accomplishment of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Sellers this Agreement and the Owners by the terms of this Agreement.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representativeother ancillary transactions, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree thatpower:
(i) the Purchaser to agree with Parent and Merger Sub with respect to any matter or ▇▇▇▇▇▇▇ will be able thing required by or deemed necessary by Shareholders’ Representative in connection with this Agreement, including without limitation any amendments to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representativethis Agreement;
(ii) all actions, decisions to receive and instructions of hold the Representative will be conclusive Merger Consideration and binding upon each of to distribute the Sellers and all of same to the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the RepresentativeAgEagle Shareholders;
(iii) to establish an account to hold a reasonable portion of the provisions Merger Consideration and to use such portion of this Section 9.13 are independent the Merger Consideration for out-of-pocket costs and severableexpenses in connection herewith;
(iv) to execute and deliver any and all other agreements, are irrevocable documents and coupled with an interest and will be enforceable notwithstanding any rights other papers which the Shareholders’ Representative deems necessary or remedies that either Seller or any Owner may have appropriate in connection with this Agreement, or any of the Transactions contemplated hereby or thereby;
(v) to terminate, amend, waive or interpret any provision of this Agreement;
(vi) to act for each AgEagle Shareholder and all AgEagle Shareholders with regard to the indemnification matters referred to in this Agreement;
(vii) to retain attorneys, accountants and other professionals to provide services to the Shareholders’ Representative in fulfillment of his obligations under this Agreement and as otherwise deemed appropriate in connection with the Closing of the transactions contemplated by this AgreementAgreement or related matters arising thereafter; and
(ivviii) to do or refrain from doing any further act or deed on behalf of each AgEagle Shareholder which the provisions Shareholders’ Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Section 9.13 will be binding upon the executors, heirs, legal representatives Agreement as fully and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwisecompletely as such AgEagle Shareholder could if personally present.
Appears in 1 contract
Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver of any condition to the obligations of the Sellers and the Owners to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner Each Shareholder hereby irrevocably appoints and designates A▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ , ▇▇▇▇▇ . (the “Shareholders’ Representative”) as histhe agent of such Shareholder for all purposes relating to or in connection with any transaction contemplated by or relating to this Agreement and to be carried out prior to, her at or after the Closing including (i) approving any modifications or amendments to this Agreement, (ii) making decision with respect to the determination of the Net Working Capital Adjustment Amount, (iii) the appointment of the Escrow Agent and execution and delivery of the Escrow Agreement, (iv) entering into any settlement or submitting the dispute to the Independent Accountant, (v) taking any action that may be necessary or desirable, as determined by the Shareholders’ Representative, in its representative sole discretion, in connection with the termination of this Agreement as provided in Article XII, (vi) delivering or causing to be delivered to the Purchaser at the Closing certificates representing the Company Shares, (vii) executing and delivering, on behalf of the Shareholders and the Companies any and all notices, documents or certificates to be executed by the Shareholders or the Companies in connection with this Agreement and the transactions contemplated hereby; (viii) making any payments or paying any expenses under or in connection with this Agreement, (ix) granting any consent or approval on behalf of the Shareholders or the Companies under this Agreement; and (x) resolving disputes with the Purchaser that arise under this Agreement including disputes regarding indemnification claims by any Party. Each Shareholder herby appoints the Shareholders’ Representative as such Shareholder’s true and lawful attorney-in-fact (the "REPRESENTATIVE").
(b) The Sellers and the Owners hereby authorize the Representative (i) to take all action necessary agent, with full powers of substitution and resubstitution, in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated herebysuch Shareholder’s name, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereofplace and stead, and (iii) to take in any and all additional action as is contemplated to be taken by or on behalf of the Sellers and the Owners by the terms of this Agreement.
(c) In the event that the Representative diescapacities, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) , granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the provisions sale of this Section 9.13 will be binding such Shareholder’s shares as fully to all intents and purposes as such Shareholder might or could do in person. Each Shareholder hereby authorizes the Purchaser and its Affiliates to rely upon the executorsagency created hereby and releases the Purchaser and its Affiliates from any and all liability to such Shareholder of whatever nature arising out of or relating to such agency, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of same extent as though any act committed or omitted by the Sellers and the Owners hereunder, whether Shareholders’ Representative pursuant to testamentary disposition, the laws of descent and distribution such agency had been committed or otherwiseomitted by such Shareholder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Omega Healthcare Investors Inc)
Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver of any condition to the obligations of the Sellers and the Owners to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereofBy executing this Agreement, each of the Sellers Shareholder irrevocably constitutes and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as his, her or its representative the true and lawful agent and attorney-in-fact (hereinafter referred to as the "SHAREHOLDERS' REPRESENTATIVE")) of each Shareholder, with full powers of substitution, to act in the name, place and stead of each Shareholder with respect to the transactions contemplated hereby in accordance with the provisions of this Agreement and the Escrow Agreement, including, without limitation, to grant waivers on behalf of each Shareholder or to enter into amendments to this Agreement and to do or refrain from doing all such further acts and things, to execute all such certificates, instruments and other documents, as such Shareholders' Representative may deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement or the Escrow Agreement, to give and receive notices and communications, to authorize delivery to Purchaser of the Escrowed Shares or other property from the Escrow Account in satisfaction of claims by Purchaser, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims and to take all actions necessary or appropriate in the judgment of the Shareholders' Representative for the accomplishment of the foregoing. Such agency may be changed by the Shareholder from time to time upon not less than thirty days prior written notice to Purchaser; PROVIDED, HOWEVER, that the Shareholders' Representative may not be removed unless holders of a two-thirds interest in the Escrow Account agree to such removal and to the identity of the substituted shareholders' representative. Any vacancy in the position of Shareholders' Representative may be filled by approval of the holders of a majority in interest of the Escrow Account. The Shareholders agree that any such action, if material to the rights and obligations of the Shareholders in the reasonable judgment of the Shareholders' Representative, shall be taken in the same manner with respect to all Shareholders, unless otherwise agreed by each Shareholder. The appointment of the Shareholders' Representative shall be deemed coupled with an interest and shall be irrevocable, and Purchaser, Parent and any other Person may conclusively and absolutely rely, without inquiry, upon any actions of the Shareholders' Representative as the act of the Shareholders in all matters referred to in this Agreement. The Shareholders' Representative shall not be liable for any act done or omitted hereunder as Shareholders' Representative while acting in good faith and in the exercise of reasonable judgment.
(b) The Sellers power of attorney granted in this section is not intended to be a continuing power of attorney within the meaning of and governed by the Owners hereby authorize the Representative Substitute Decisions Act (iOntario) to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate similar power of attorney under equivalent legislation in any other jurisdiction (a "CPOA"). The execution of this Agreement shall not terminate any such CPOA granted by any Shareholder previously and shall not be terminated by the transactions contemplated hereby, or (bb) execution by that Shareholder in the defense and/or settlement future of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereofa CPOA, and (iii) each Shareholder hereby agrees not to take any and all additional action in the future (other than as is contemplated to be taken expressly permitted by or on behalf of this section) which results in the Sellers and the Owners by the terms termination of this Agreementpower of attorney.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Sources: Share Purchase Agreement (Ticketmaster Online Citysearch Inc)
Shareholders’ Representative. (a) In order to administer efficiently administer (i) the waiver of any condition to the rights and obligations of the Sellers Shareholders under this Agreement, the Shareholders hereby designate and the Owners to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇appoint Garr▇ ▇▇ ▇▇▇▇▇ the Shareholders' Representative, to serve as histhe Shareholders' agent, her or its representative proxy and attorney-in-fact (for the "REPRESENTATIVE")limited purposes set forth in this Agreement.
(b) The Sellers Each of the Shareholders 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 Owners hereby authorize the Representative full power and authority on such Shareholder's behalf (i) to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated herebyby this Agreement, or (bbii) to disburse any funds received hereunder to the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereofShareholders, and (iii) to take execute and deliver on behalf of each Shareholder any amendment or waiver under this Agreement, to agree to the amount of the actual Closing Date Debt, Closing Date Current Assets and Closing Date Current Liabilities pursuant to Sections 1.5(a), and to agree to resolution of all Claims hereunder, (iv) to retain legal counsel and other professional services, at the expense of the Shareholders, in connection with the performance by the Shareholders' Representative of this Agreement, and (v) to do each and every act and exercise any and all additional action as is contemplated rights which such Shareholder or Shareholders are permitted or required to be taken by do or on behalf exercise under this Agreement and the other agreements, documents and certificates executed in connection herewith. Each of the Sellers Shareholders agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the Owners by consent of the terms Shareholders' Representative and shall survive the death, bankruptcy or other incapacity of this Agreementany Shareholder.
(c) Each of the Shareholders hereby agrees that any amendment or waiver under this Agreement, 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 adjustment or Claim (including any action taken to object to, defend, compromise or agree to the payment of such adjustment or Claim), shall be effective if approved in writing by persons who were the holders of a majority of the Corporations' Stock immediately prior to the Closing, and that each and every action so taken shall be binding and conclusive on every Shareholder, whether or not such Shareholder had notice of, or approved, such amendment or waiver.
(d) Garr▇ ▇▇▇ll serve as the Shareholders' Representative until he resigns or is otherwise unable or unwilling to serve. In the event that the a Shareholders' Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such positionposition or is otherwise unable or unwilling to serve, the remaining Shareholders shall select, by the vote of the holders of a majority of the Owners will select another Corporations' Stock immediately prior to the Closing, a successor representative to fill each such vacancy vacancy, shall provide prompt written notice to WCI of such change and such substituted representative will shall then be irrevocably appointed and designated deemed to be the Shareholders' Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Shareholders’ Representative. (a) In order to efficiently administer (i) Each Seller has constituted, appointed and empowered effective from and after the waiver date of any condition to such consent, the obligations Person designated as such by the Board as the Shareholders’ Representative, for the benefit of the Sellers and the Owners to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative exclusive agent and attorney-in-fact to act on behalf of each Seller, in connection with and to facilitate the consummation of the transactions contemplated hereby, which shall include the power and authority to: (i) enforce and protect the "REPRESENTATIVE")rights and interests of the Sellers 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 and the transactions provided for herein, and to take any and all actions which the Shareholders’ Representative believes are necessary or appropriate under this Agreement for and on behalf of the Sellers including, consenting to, compromising or settling any such claims, conducting negotiations with Buyer and, after the Closing Date, the Company and their respective Representatives regarding such claims, and, in connection therewith, to (A) assert any claim or institute any Action; (B) investigate, defend, contest or litigate any Third Party Claim pursuant to Section 9.5 or any other Action or investigation initiated by Buyer and, after the Closing Date, the Company or any other Person, or by any Governmental Entity against the Shareholders’ Representative and/or any of the Sellers, and receive process on behalf of any or all Sellers in any such Action 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 Third Party Claim or other Action 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 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; (ii) to refrain from enforcing any right of the Sellers arising out of or under or in any manner relating to this Agreement; 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 or by the Sellers unless such waiver is in writing signed by the waiving party or by the Shareholders’ Representative; (iii) 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 or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement; (iv) to engage special counsel, accountants and other advisors and incur such other expenses on behalf of the Sellers in connection with any matter arising under this Agreement, which such expenses the Shareholders’ Representative is authorized to pay from the Expense Holdback Amount; and (v) subject to Section 10.8, to negotiate and execute any waivers or amendments of this Agreement or the Escrow Agreement.
(b) The Shareholders’ Representative shall be entitled to receive reimbursement from, and be indemnified by, the Sellers for certain expenses, charges and liabilities as provided below. In connection with this Agreement, and in exercising or failing to exercise all or any of the Owners hereby authorize powers conferred upon the Shareholders’ Representative hereunder, (i) the Shareholders’ Representative shall incur no responsibility whatsoever to take any Sellers 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 (ii) the Shareholders’ Representative shall be entitled to rely on the 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 Sellers. Each Seller shall indemnify, severally and not jointly, based on such Seller’s Payout Percentage, the Shareholders’ Representative against all action necessary losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and the amount of any judgment against them, of any nature whatsoever (including, 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 (aa) any Action, investigation, challenge, or in connection with any appeal thereof, relating to the waiver acts or omissions of the Shareholders’ Representative hereunder. The foregoing indemnification shall not apply in the event of any condition Action 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 the obligations Sellers as to the existence of a deficiency toward the payment of any such indemnification amount, each Seller shall promptly deliver to the Shareholders’ Representative full payment of his, her or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf its Payout Percentage of the Sellers and the Owners by the terms amount of this Agreementsuch deficiency.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority All of the Owners will select another representative indemnities, immunities and powers granted to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Shareholders’ Representative for all purposes under this Agreement shall survive the Closing and/or any termination of this Agreement.
(d) All decisions and actions by Buyer and, after the RepresentativeClosing Date, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will Company shall have the right to objectrely upon all actions taken or omitted to be taken by the Shareholders’ Representative pursuant to this Agreement, dissent, protest all of which actions or otherwise contest omissions shall be legally binding upon the sameSellers.
(e) By their execution The grant of this Agreement, each of the Sellers and the Owners agree that:
authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the Purchaser death, incompetency, bankruptcy or ▇▇▇▇▇▇▇ will be able to rely conclusively on liquidation of any Seller and (ii) shall survive the instructions and decisions consummation of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunderTransactions, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser Shareholders’ Representative pursuant to the authority granted in this Agreement shall be effective and absolutely binding on each Seller notwithstanding any contrary action of or ▇▇▇▇▇▇▇ in reliance upon the instructions direction from such Seller, except for actions or decisions omissions of the Representative;Shareholders’ Representative constituting willful misconduct.
(iif) all actions, decisions and instructions Each of the Company and Buyer acknowledges and agrees that the Shareholders’ Representative will be conclusive and binding upon is a party to this Agreement solely to perform certain administrative functions in connection with the consummation of the transactions contemplated hereby. Accordingly, each of the Sellers Company and all Buyer acknowledges and agrees that, other than in the Shareholders’ Representative’s role as a Seller, the Shareholders’ Representative shall have no liability to, and shall not be liable for any Losses of, any of the Owners, and no party hereto will have Company or Buyer in connection with any cause obligations of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Shareholders’ Representative under this AgreementAgreement or otherwise in respect of this Agreement or the transactions contemplated hereby, except for fraud or to the extent such Losses shall be proven to be the direct result of willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have Shareholders’ Representative in connection with the transactions contemplated by this Agreement; and
(iv) the provisions performance of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners its obligations hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Shareholders’ Representative. (a) In order 2.11.1. By signing a Written Consent or voting in favor of or consenting to efficiently administer the Merger, the approval of the principal terms of the Merger, the consummation of the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, or by surrendering or delivering to the Paying Agent (i) the waiver a Certificate or an affidavit in lieu thereof (with respect to holders of any condition to the obligations of the Sellers and the Owners to consummate the transactions contemplated hereby, and Company Capital Stock) or (ii) an executed Option Cancellation Agreement (with respect to holders of Vested Company Stock Options), in each case, in exchange for the defense and/or settlement of any claims for which the Sellers or the Owners may consideration to be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereofpaid in accordance with this Agreement, each of Company Holder irrevocably approves the Sellers appointment of, and each Owner hereby irrevocably appoints Shareholder Representative Services LLC as the sole, exclusive, true and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as hislawful agent, her or its representative and attorney-in-fact of all Company Holders and each of them (the "REPRESENTATIVE").“Shareholders’ Representative”) with respect to any and all matters relating to, arising out of, or in connection with, this Agreement and the agreements ancillary hereto, including for purposes of taking any action or omitting to take any action on behalf of Company Holders hereunder to:
(a) act for Company Holders with regard to all matters pertaining to indemnification under this Agreement, including the power to defend, compromise, or settle any claims and to otherwise prosecute or pursue any litigation claims, and the payment or non-payment of any of the Indemnification Escrow Amount;
(b) The Sellers execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Owners hereby authorize the Shareholders’ Representative (i) to take all action deems necessary or appropriate in connection with (aa) the waiver consummation of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, by this Agreement;
(c) do or refrain from doing any further act or deed on behalf of Company Holders that the Shareholders’ Representative deems necessary or appropriate in its discretion relating to the subject matter of this Agreement as fully and completely as Company Holders could do if personally present;
(bbd) give or receive notices to be given or received by Company Holders under this Agreement (except to the defense and/or settlement extent that this Agreement expressly contemplates that any such notice shall be given or received by each Company Holder individually);
(e) receive service of process in connection with any claims for which under this Agreement;
(f) give any Seller written direction to the Paying Agent or Owner may be required to indemnify the Purchaser Indemnified Parties Escrow Agent;
(g) agree to, negotiate and/or comply with the determination of the Working Capital and the adjustment pursuant to Article 8 hereofSection 2.13; and
(h) agree to, negotiate, enter into settlements and (iii) compromises and/or comply with awards and court orders with respect to take any claims for indemnification; and all additional action as is contemplated to be taken All actions, notices, communications and determinations by or on behalf of the Sellers and the Owners Company Holders shall be given or made by the terms of this Agreement.
(c) In the event that the Shareholders’ Representative diesand all such actions, becomes unable to perform his responsibilities hereunder or resigns from such positionnotices, a majority of the Owners will select another representative to fill each such vacancy communications and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions determinations by the RepresentativeShareholders’ Representative shall conclusively be deemed to have been authorized by, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will shall be binding upon each upon, any of the Sellers and all of the OwnersCompany Holders, and no Seller or Owner will Company Holder shall have the right to object, dissent, protest or otherwise contest the same. All decisions and actions of the Shareholders’ Representative on behalf of the Company Holders shall be deemed to be facts ascertainable outside of this Agreement.
2.11.2. The Shareholders’ Representative may resign at any time. If the Shareholders’ Representative becomes unable to perform its responsibilities hereunder or resigns, then holders of a majority of the Company Capital Stock, based on their Pro Rata Percentage, promptly shall designate in writing to Buyer a single individual to fill the Shareholders’ Representative vacancy as the successor Shareholders’ Representative hereunder. If at any time there shall not be a Shareholders’ Representative or Company Holders fail to designate a successor Shareholders’ Representative, then Buyer may have a court of competent jurisdiction appoint a Shareholders’ Representative hereunder. Holders of a majority of the Company Capital Stock, based on their Pro Rata Percentage, may also replace the Person serving as the Shareholders’ Representative from time to time and for any reason upon at least ten days’ prior written notice to Buyer. The Shareholders’ Representative may be removed only upon delivery of written notice to the Buyer signed by Persons who, as of immediately prior to the Effective Time, held a majority (eby voting power) By of the then outstanding shares of Company Capital Stock.
2.11.3. The Shareholders’ Representative shall act for Company Holders on all of the matters set forth in this Agreement in the manner the Shareholders’ Representative believes to be in the best interest of Company Holders. The Shareholders’ Representative is authorized to act on behalf of Company Holders notwithstanding any dispute or disagreement among Company Holders. In taking any actions as Shareholders’ Representative, the Shareholders’ Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any Person the Shareholders’ Representative reasonably believes to be authorized thereunto. The Shareholders’ Representative will incur no liability of any kind with respect to any action or omission by the Shareholders’ Representative in connection with the Shareholders’ Representative’s services pursuant to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Shareholders’ Representative’s gross negligence or willful misconduct. The Shareholders’ Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Company Holders will indemnify, defend and hold harmless the Shareholders’ Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the 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 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 Holders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct; provided, further, that in no event shall a Company Holder be liable under this Agreement or otherwise in connection with the transactions contemplated hereby or in connection therewith for any Representative Losses in excess of the Merger Consideration and Option Merger Consideration actually paid, or that becomes due and payable in accordance with Section 2.14, to him, her or it. If not paid directly to the Shareholders’ Representative by the Company Holders, any such Representative Losses may be recovered by the Shareholders’ Representative from (i) the funds in the Shareholders’ Representative Reserve, (ii) the Adjustment Escrow Fund and the Indemnification Escrow Fund, in each case at such time as remaining amounts would otherwise be distributable to the Company Holders and (iii) any future Contingent Payments that become due and payable in accordance with Section 2.14; provided, that while this section allows the Shareholders’ Representative to be paid from the aforementioned sources of funds, this does not relieve the Company Holders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Shareholders’ Representative from 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 Company Holders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Holders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Shareholders’ Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Shareholders’ Representative or the termination of this Agreement.
2.11.4. The Shareholders’ Representative shall treat confidentially any Confidential Information of the Buyer or the Surviving Corporation disclosed to it pursuant to this Agreement and shall not use such Confidential Information other than in the performance of its duties as the Shareholders’ Representative. In addition, the Shareholders’ Representative shall not disclose any Confidential Information disclosed to it pursuant to this Agreement to anyone except as required by Applicable Law; provided that (i) the Shareholders’ Representative may disclose such Confidential Information to legal counsel, employees, advisors, agents or consultants, in each case who have a need to know such information, provided that such persons are subject to confidentiality obligations with respect thereto no less restrictive than the obligations set forth in Section 6.10 of this Agreement, each of (ii) the Sellers and the Owners agree that:
Shareholders’ Representative (or legal counsel, employees, advisors, agents or consultants to whom Confidential Information is disclosed pursuant to clause (i) above) may disclose such Confidential Information in any Action relating to this Agreement or the Purchaser transactions contemplated hereby (or, in either case, discussion in preparation therefor) and (iii) the Shareholders’ Representative may disclose to any Company Holder any such Confidential Information disclosed to the Shareholders’ Representative subject to such Company Holder agreeing with Buyer in writing to restrictions on the disclosure and use of such Confidential Information consistent with or ▇▇▇▇▇▇▇ will no less stringent than the restrictions to which the Shareholders’ Representative is subject pursuant to this Section 2.11.4.
2.11.5. Buyer shall be able entitled to rely conclusively on the instructions and decisions authority of the Shareholders’ Representative as the agent, representative and attorney-in-fact of Company Holders for all purposes under this Agreement and shall have no Liability for any such reliance. No Company Holder may revoke the authority of the Shareholders’ Representative. Each Company Holder, by signing a Written Consent or otherwise voting in favor of or consenting to the Merger or by surrendering or delivering a Certificate or an affidavit in lieu thereof to the Paying Agent along with an executed Letter of Transmittal (aawith respect to holders of Company Capital Stock) or by delivering an executed Option Cancellation Agreement (with respect to holders of Company Stock Options), in each case, in exchange for the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required consideration to be taken by the Representative hereunderpaid in accordance with this Agreement, hereby ratifies and confirms, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for hereby agrees to ratify and confirm, any action taken by the Purchaser or ▇▇▇▇▇▇▇ Shareholders’ Representative in reliance upon the instructions or decisions exercise of the Representative;
(ii) all actionspower-of-attorney granted to the Shareholders’ Representative pursuant to this Section 2.11, decisions which power-of-attorney, being coupled with an interest, is irrevocable and instructions shall survive the death, incapacity or incompetence of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the such Company Holder. The provisions of this Section 9.13 2.11 are independent and severable, are irrevocable (subject only to Section 2.11.2) and coupled with an interest and will shall be enforceable notwithstanding any rights or remedies that either Seller or any Owner Company Holder may have in connection with the transactions contemplated by this Agreement.
2.11.6. At the Closing, the Paying Agent shall distribute the Shareholders’ Representative Reserve to the Shareholders’ Representative, which shall be maintained by the Shareholders’ Representative in a segregated account for paying directly or reimbursing the Shareholders’ Representative for any third party expenses in performing the obligations and exercising the rights of the Shareholders’ Representative hereunder or under any agreements ancillary hereto. 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 the event of bankruptcy. Company Holders shall not receive interest or other earnings on the Shareholders’ Representative Reserve and Company Holders irrevocably transfer and assign to the Shareholders’ Representative any ownership right that they may otherwise have had in any interest that may accrue on funds held in the Shareholders’ Representative Reserve. Company Holders acknowledge that the Shareholders’ Representative is not providing any investment supervision, recommendations or advice. The Shareholders’ Representative shall have no responsibility or liability for any loss of principal of the Shareholders’ Representative Reserve other than as a result of its gross negligence or willful misconduct. For Tax purposes, the Shareholders’ Representative Reserve shall be treated as having been received and voluntarily set aside by Company Holders at the time of Closing. The Shareholders’ Representative shall be reimbursed for out-of-pocket expenses incurred in the performance of its duties (including the reasonable fees and expenses of counsel) under this Agreement from the Shareholders’ Representative Reserve; and
provided that if the Shareholders’ Representative Reserve is insufficient to pay such expenses, then the Shareholders’ Representative shall be reimbursed directly from Company Holders on a several basis (ivand not a joint and several basis) according to their Pro Rata Percentage. Upon the determination of the Shareholders’ Representative that the Shareholders’ Representative Reserve is no longer necessary in connection with claims for indemnification of the Shareholders’ Representative pursuant to this Section 2.11, the Shareholders’ Representative shall distribute to the Paying Agent for further distribution to the Company Holders (solely out of the Shareholders’ Representative Reserve) the amount remaining in the Shareholders’ Representative Reserve after payment of all of the Shareholders’ Representative’s out-of-pocket expenses incurred in connection with its services as Shareholders’ Representative. The Shareholders’ Representative Reserve shall not be available to Buyer to satisfy any claims hereunder. Any payments as may be required by the Shareholders’ Representative to be made directly to it by any Company Holders pursuant to this Agreement or any other agreement shall be paid in accordance with such Company Holder’s Pro Rata Percentage.
2.11.7. The provisions of this Section 9.13 will 2.11 shall be binding upon the executors, heirs, legal representatives representatives, personal representatives, successor trustees and successors of each Seller and each OwnerCompany Holder, and any references in this Agreement to a Seller or an Owner will Company Holder shall mean and include the successors to the rights of the Sellers and the Owners each applicable Company Holder hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver of any condition to the obligations of the Sellers By approving this Agreement and the Owners to consummate consummation of the transactions contemplated hereby, and/or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, and without any further action of any of the Shareholders, Optionholders, or the Company, each Shareholder and Optionholder shall be deemed to have irrevocably approved the appointment and designation of, and hereby appoints and designates, Fortis Advisors LLC as its true and lawful attorney-in-fact and exclusive agent (the “Shareholders’ Representative”) with full power of substitution 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 hereby and the exercise of all rights and the performance of all obligations under this Agreement, the Earn-Out Agreement, the Earn-Out Escrow Agreement (if any) and the Shareholders’ Representative Engagement Agreement, including: (i) receiving and forwarding of notices and communications pursuant to this Agreement, the Earn-Out Agreement and the Earn-Out Escrow Agreement (if any) and accepting service of process; (ii) giving or agreeing to, on behalf of all the defense and/or settlement Shareholders and Optionholders, any and all consents, waivers and amendments deemed by the Shareholders’ Representative, in its reasonable and good faith discretion, to be necessary or appropriate under this Agreement, the Earn-Out Agreement and the Earn-Out Escrow Agreement (if any) and the execution or delivery of any documents that may be necessary or appropriate in connection therewith; (iii) negotiating and entering into, on behalf of all the Shareholders and Optionholders, the Earn-Out Escrow Agreement, as and if required pursuant to the terms of this Agreement; and (iv) with respect to any indemnification claims for which and all other matters arising under this Agreement, (A) disputing or refraining from disputing, on behalf of each Shareholder and Optionholder relative to any amounts to be received by the Sellers Shareholders and Optionholders under this Agreement or any agreements contemplated hereby, or any claim made by Parent under this Agreement or the Owners Earn-Out Agreement, (B) negotiating and compromising, on behalf of each Shareholder and Optionholder, any dispute that may be required arise under, and exercise or refrain from exercising any remedies available under, this Agreement or the Earn-Out Agreement, and (C) executing, on behalf of each Shareholder and Optionholder, any settlement agreement, release or other document with respect to indemnify such dispute or remedy, except in each case with respect to a dispute between any Shareholder or Optionholder on the Purchaser Indemnified Parties pursuant one hand and the Shareholders’ Representative on the other hand, provided that, in each case, the Shareholders’ Representative shall not take any action adverse to Article 8 hereofany Shareholder or Optionholder unless such action is also taken proportionately with respect to the others. Notwithstanding the foregoing, each the Shareholders’ Representative shall have no obligation to act on behalf of the Sellers Shareholders and Optionholders, except as expressly provided herein, in the Earn-Out Agreement and in the Shareholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Shareholders’ Representative in any other Ancillary Agreement, schedule, exhibit or the Disclosure Schedules.
(b) Each Shareholder and Optionholder hereby agrees that: (i) in all matters in which action by the Shareholders’ Representative is required or permitted, the Shareholders’ Representative is authorized to act on behalf of such Shareholder and Optionholder, notwithstanding any dispute or disagreement among the Shareholders and Optionholders, and any Indemnified Party shall be entitled to rely on any and all action taken by the Shareholders’ Representative under this Agreement, the Earn-Out Agreement and the Earn-Out Escrow Agreement (if any) without any liability to, or obligation to inquire of, any Shareholder or Optionholder, notwithstanding any knowledge on the part of any Indemnified Party of any such dispute or disagreement; (ii) all decisions, actions, consents and instructions by the Shareholders’ Representative under this Agreement, the Earn-Out Agreement, the Earn-Out Escrow Agreement (if any) or the Shareholders’ Representative Engagement Agreement shall be binding upon all of the Shareholders and Optionholders and their successors as if expressly confirmed and ratified in writing by the Shareholders and Optionholders, and no Shareholder or Optionholder shall have the right to object to, dissent from, protest or otherwise contest any such decision, action, consent or instruction; (iii) notice to the Shareholders’ Representative, delivered in the manner provided in Section 10.1, shall be deemed to be notice to each Owner hereby irrevocably appoints Shareholder and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Optionholder for the purposes of this Agreement; (iv) the appointment of the Shareholders’ Representative and the powers, immunities and rights to indemnification granted to the Shareholders’ Representative Group hereunder: (A) are coupled with an interest and shall be irrevocable by such Shareholder or Optionholder in any manner or for any reason, (B) shall survive the death, incompetence, bankruptcy or liquidation of any Shareholder or Optionholder and shall be binding on any successor thereto, and (C) shall survive the delivery of an assignment by any Shareholder or Optionholder of the whole or any fraction of his, her, or its interest in the Earn-Out Consideration; and (v) in the event that the person or entity serving as the Shareholders’ Representative resigns, dies, becomes incapacitated, files for bankruptcy protection or otherwise becomes unable to serve as a representative of the Shareholders or Optionholders, a representative appointed by a majority of Shareholders shall be the Shareholders’ Representative. The newly-appointed Shareholders’ Representative shall notify Parent, the Paying Agent and any other appropriate Person in writing of his, her or its representative appointment, provide evidence that a majority of Shareholders approved such appointment and attorneyprovide appropriate contact information for purposes of this Agreement, the Earn-in-fact (the "REPRESENTATIVE").
(b) The Sellers Out Agreement and the Owners hereby authorize Earn-Out Escrow Agreement (if any). Parent shall be entitled to rely upon, without independent investigation, the identity and validity of such newly-appointed Shareholders’ Representative (i) to take all action necessary as set forth in connection with (aa) the waiver of any condition such written notice. If a successor Shareholders’ Representative is not appointed pursuant to the obligations preceding procedure within 30 days after the Shareholders’ Representative’s resignation, death, incapacitation, filing for bankruptcy protection or other inability to serve as a representative, Parent shall appoint an independent and unaffiliated successor Shareholders’ Representative. The immunities and rights to indemnification shall survive the resignation or removal of any Seller the Shareholders’ Representative or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf member of the Sellers Advisory Group and the Owners by the terms Closing and/or any termination of this Agreement and the Earn-Out Agreement.
(c) In Each Shareholder and Optionholder hereby acknowledges and agrees that no Indemnified Party shall have any Liability to any Shareholder or Optionholder with respect to, and Shareholders and Optionholders jointly and severally shall indemnify all Indemnified Parties against, and agree to hold the event that Indemnified Parties harmless from, any and all Losses incurred by such Indemnified Parties arising out of any breach of this Section 10.14 by the Shareholders’ Representative diesor by any Shareholder or Optionholder, becomes unable to perform his responsibilities hereunder or resigns from such positionthe designation, a majority appointment or actions of the Owners will select another representative Shareholders’ Representative pursuant to fill each such vacancy the provisions hereof, including with respect to any (i) failure by the Shareholders’ Representative to deliver funds received by the Shareholders’ Representative (on behalf of the Shareholders and such substituted representative will Optionholders) or any other actions taken by the Shareholders’ Representative, and (ii) reliance by the Indemnified Parties on, and actions taken by the Indemnified Parties in reliance on, the instructions of, notice given by or any other action taken or omitted by the Shareholders’ Representative. The Shareholders’ Representative shall be irrevocably appointed entitled to: (i) rely upon the Certified Closing Report, (ii) rely upon any signature believed by it to be genuine, and designated (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the Representative for all purposes of this Agreementapplicable Shareholder, Optionholder or other party.
(d) All decisions Certain Shareholders and actions Optionholders have entered into an engagement agreement (the “Shareholders’ Representative Engagement Agreement”) with the Shareholders’ Representative to provide direction to the Shareholders’ Representative in connection with its services under this Agreement, the Earn-Out Agreement, the Earn-Out Escrow Agreement (if any) and the Shareholders’ Representative Engagement Agreement (such Shareholders and Optionholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Shareholders’ Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Shareholders’ Representative Group”), shall be liable to any Shareholders and Optionholders for any action or failure to act in connection with the acceptance or administration of the Shareholders’ Representative’s responsibilities hereunder, under the Earn-Out Agreement, under the Earn-Out Escrow Agreement (if any) or under the Shareholders’ Representative Engagement Agreement, unless and only to the extent such action or failure to act constitutes gross negligence or willful misconduct. The Shareholders and Optionholders shall indemnify, defend and hold harmless the Shareholders’ Representative Group from and against any and all losses, claims, damages, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Shareholders’ Representative Expenses”) incurred without gross negligence or willful misconduct on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of its duties hereunder, under the Earn-Out Agreement, under the Earn-Out Escrow Agreement (if any) or under the Shareholders’ Representative Engagement Agreement. Such Shareholders’ Representative Expenses may be recovered first, from the Expense Fund, second from any distribution of the Earn-Out Consideration otherwise distributable to the Shareholders and Optionholders at the time of distribution, and third, directly from the Shareholders and Optionholders. The Shareholders and Optionholders 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 or pursuant to this Agreement, the Earn-Out Agreement, the Shareholders’ Representative Engagement Agreement or the transactions contemplated hereby or thereby. 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 RepresentativeShareholders’ Representative in performing such actions.
(e) Upon the Closing, including, without limitation, Parent shall wire to the Shareholders’ Representative $100,000 (the “Expense Fund Amount”). The Expense Fund Amount shall be held by the Shareholders’ Representative in a segregated client account and shall be used (i) for the purposes of paying directly or reimbursing the Shareholders’ Representative for any agreement between Shareholders’ Representative Expenses incurred pursuant to this Agreement, the Earn-Out Agreement, the Earn-Out Escrow Agreement (if any) or any Shareholders’ Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated herebyEngagement Agreement, or (ii) as otherwise determined by the defense Advisory Group (the “Expense Fund”). The Shareholders’ Representative is not providing any investment supervision, recommendations or settlement advice and shall have no responsibility or liability for any loss of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each principal of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any Expense Fund other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity than as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud result of its gross negligence or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding misconduct. The Shareholders’ Representative is not acting as a withholding agent or in any rights or remedies that either Seller or any Owner may have similar capacity in connection with the transactions contemplated by this Agreement; and
(iv) Expense Fund. The Shareholders and Optionholders will not receive any interest on the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives Expense Fund and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors assign to the rights of the Sellers and the Owners hereunder, whether pursuant Shareholders’ Representative any such interest. Subject to testamentary dispositionAdvisory Group approval, the laws of descent Shareholders’ Representative may contribute funds to the Expense Fund from any consideration otherwise distributable to the Shareholders and Optionholders. As soon as reasonably determined by the Shareholders’ Representative that the Expense Fund is no longer required to be withheld, the Shareholders’ Representative shall distribute the remaining Expense Fund (if any) to the Paying Agent and/or Parent, as applicable, for further distribution or otherwiseto the Shareholders and Optionholders.
Appears in 1 contract
Shareholders’ Representative. (a) In order From and after the Closing, the Shareholders’ Representative shall be authorized to efficiently administer (i) the waiver of any condition to the obligations of the Sellers and the Owners to consummate the transactions contemplated herebyact, and (ii) be the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative agent and attorney-in-fact (for and on behalf of each of the "REPRESENTATIVE").
(b) Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Sellers Participating Equity Holders shall be bound by all actions taken and documents executed by the Owners hereby authorize Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative (i) may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to take all action necessary act, on behalf of each of the Participating Equity Holders in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated activities to be taken by or performed on behalf of the Sellers and the Owners by the terms of this Agreement.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of Participating Equity Holders under this Agreement, each the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Sellers and the Owners agree thatParticipating Equity Holders to:
(i) execute, as the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Shareholders’ Representative, in his capacity as a Representative, for this Agreement and any action taken, decision made agreement or instruction given by the Representative under this Agreement, except for fraud instrument entered into or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(ivxii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the provisions of this Section 9.13 will be binding upon type that the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller Registrant treats as private or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseconfidential.
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Shareholders’ Representative. (a) In order to efficiently administer (i) By virtue of the waiver Company Shareholder Approval, and without any further act of any condition holder of Company Common Stock, the holders of Company Common Stock will be deemed to have appointed ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (previously defined as the Shareholders’ Representative) as agent and attorney-in-fact for each holder of Company Common Stock for all matters relating to this Agreement, including to give and receive notices and communications; to authorize delivery of cash from the Holdback Amount in satisfaction of claims by Parent or Surviving Corporation; to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims; and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing.
(b) The Shareholders’ Representative will not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith. Holders of Company Common Stock on whose behalf the Holdback Amount is withheld will severally indemnify the Shareholders’ Representative and hold the Shareholders’ Representative harmless against all loss, liability, or expense incurred without bad faith or willful misconduct on the part of such Shareholders’ Representative and arising out of or in connection with the acceptance or administration of such Shareholders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative. The Shareholders’ Representative will be entitled to the obligations advance and reimbursement of costs and expenses incurred by or on behalf of the Sellers Shareholders’ Representative in the performance of their duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative.
(c) A decision, act, consent, or instruction of the Shareholders’ Representative relating to this Agreement will constitute a decision of the holders of Company Common Stock and will be final, binding, and conclusive upon each such holder. Parent, and all other persons entitled to indemnification under this Agreement or any other document or agreement entered into in connection herewith or therewith (the “Indemnified Persons”), may rely upon any such decision, act, consent, or instruction of the Shareholders’ Representative as being the decision, act, consent, or instruction of the holders of Company Common Stock. Parent and all other Indemnified Persons 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 Shareholders’ Representative. IN WITNESS WHEREOF, Parent, Sub, Company, Shareholders, and the Owners Shareholders’ Representative have signed or caused their respective duly authorized officers to consummate the transactions contemplated herebysign this Agreement, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each all as of the Sellers and each Owner hereby irrevocably appoints and designates date first written above. By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Its CEO DL SUB CORPORATION By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Its President POSITIVE ACCESS CORPORATION By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Its CEO /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ as Shareholder /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative and attorney-in-fact (the "REPRESENTATIVE").
(b) The Sellers and the Owners hereby authorize the Representative (i) to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Sellers and the Owners by the terms of this Agreement.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or Shareholder SHAREHOLDERS’ REPRESENTATIVE /s/ ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions ▇▇▇
ARTICLE I THE MERGER
1.1 Effective Time of the Representative;
(ii) all actions, decisions and instructions Merger 1 1.2 Closing 1 1.3 Effects of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.Merger 1
Appears in 1 contract
Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver By executing and delivering a Letter of any condition to the obligations Transmittal or by virtue of consummation of the Sellers and the Owners to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as hisTransaction, her or its representative and attorney-in-fact (the "REPRESENTATIVE").
(b) The Sellers and the Owners hereby authorize the Representative (i) to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Sellers and the Owners by the terms of this Agreement.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating Shareholder hereby irrevocably constitutes and appoints GRHP Management, LLC as its true and lawful attorney-in-fact and agent (the “Shareholders’ Representative”) with full power of substitution to the waiver of do any condition to the obligations of and all things and execute any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for and all documents which the Sellers or the Owners may be required necessary, convenient or appropriate to indemnify facilitate the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each consummation of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers transactions contemplated hereby and the Owners agree that:
exercise of all rights and the performance of all obligations hereunder, including: (i) receiving payments under or pursuant to this Agreement and disbursements thereof to the Purchaser or ▇▇▇▇▇▇▇ will be able Shareholders, as contemplated by this Agreement; (ii) receiving and forwarding of notices and communications pursuant to rely conclusively this Agreement and accepting service of process; (iii) giving or agreeing to, on behalf of all the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for Shareholders, any action taken and all consents, waivers and amendments deemed by the Purchaser Shareholders’ Representative, in its reasonable and good faith discretion, to be necessary or ▇appropriate under this Agreement and the execution or delivery of any documents that may be necessary or appropriate in connection therewith; and (iv) with respect to any and all matters arising under this Agreement, (A) disputing or refraining from disputing, on behalf of each ▇▇▇▇▇▇ Shareholder relative to any amounts to be received by the ▇▇▇▇▇▇ Shareholders under this Agreement or any agreements contemplated hereby, or any claim made by Subversive under this Agreement, (B) negotiating and compromising, on behalf of each ▇▇▇▇▇▇ Shareholder, any dispute that may arise under, and exercise or refrain from exercising any remedies available under, this Agreement, and (C) executing, on behalf of each ▇▇▇▇▇▇ Shareholder, any settlement agreement, release or other document with respect to such dispute or remedy, except in reliance upon each case with respect to a dispute between any ▇▇▇▇▇▇ Shareholder on the instructions one hand and the Shareholders’ Representative on the other hand, provided that, in each case, the Shareholders’ Representative shall not take any action adverse to any ▇▇▇▇▇▇ Shareholder unless such action is also taken proportionately with respect to the others. The Shareholders’ Representative shall not agree to any amendment to this Agreement or decisions waiver of its provisions that would
(i) result in any class of ▇▇▇▇▇▇ Shares receiving less of the Representative;Transaction Consideration in proportion to any other class of ▇▇▇▇▇▇ Shares (based on the proportionate relationship of each class to the others as set forth in this Agreement on the date hereof), without the prior written consent of the holders of a majority of such affected class; (ii) result in any class of ▇▇▇▇▇▇ Shares receiving more of the Transaction Consideration in proportion to any other class of ▇▇▇▇▇▇ Shares (based on the proportionate relationship of each class to the others as set forth in this Agreement on the date hereof), without the prior written consent of the holders of a majority of each other class; or (iii) result in the rights or obligations of any holder of ▇▇▇▇▇▇ Shares being changed in a manner adverse and disproportionate with the other holders of ▇▇▇▇▇▇ Shares, without the prior written consent of such holder.
(b) Each ▇▇▇▇▇▇ Shareholder hereby agrees that: (i) in all matters in which action by the Shareholders’ Representative is required or permitted, the Shareholders’ Representative is authorized to act on behalf of such ▇▇▇▇▇▇ Shareholder, notwithstanding any dispute or disagreement among the ▇▇▇▇▇▇ Shareholders, Subversive shall be entitled to rely on any and all action taken by the Shareholders’ Representative under this Agreement without any Liability to, or obligation to inquire of, any ▇▇▇▇▇▇ Shareholder, notwithstanding any knowledge on the part of Subversive of any such dispute or disagreement; (ii) all decisions, actions, decisions consents and instructions of by the Shareholders’ Representative will shall be conclusive and binding upon each of the Sellers and all of the Owners▇▇▇▇▇▇ Shareholders, and no party hereto will ▇▇▇▇▇▇ Shareholder shall have the right to object to, dissent from, protest or otherwise contest any cause of action against the Representativesuch decision, in his capacity as a Representativeaction, for any action taken, decision made consent or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
instruction; (iii) notice to the provisions Shareholders’ Representative, delivered in the manner provided in Section 8.03, shall be deemed to be notice to each ▇▇▇▇▇▇ Shareholder for the purposes of this Section 9.13 are independent and severable, are irrevocable and Agreement; (iv) the appointment of the Shareholders’ Representative is coupled with an interest and will shall be enforceable notwithstanding irrevocable by such ▇▇▇▇▇▇ Shareholder in any rights manner or remedies for any reason; and (v) in the event that either Seller the person or entity serving as the Shareholders’ Representative dies, becomes incapacitated, files for bankruptcy protection or otherwise becomes unable to serve as a representative of the ▇▇▇▇▇▇ Shareholders, the holders of a majority of the ▇▇▇▇▇▇ Common Shares and ▇▇▇▇▇▇ Preferred Shares shall appoint a new Person to be the Shareholders’ Representative.
(c) Each ▇▇▇▇▇▇ Shareholder hereby acknowledges and agrees that no Subversive Party shall have any Liability to any ▇▇▇▇▇▇ Party with respect to, and the ▇▇▇▇▇▇ Shareholders jointly and severally shall indemnify all Subversive Parties against, and agree to hold the Subversive Parties harmless from, any and all Losses incurred by such Subversive Parties arising out of any breach of this Section 8.14 by the Shareholders’ Representative or by any ▇▇▇▇▇▇ Shareholder, or the designation, appointment or actions of the Shareholders’ Representative pursuant to the provisions hereof, including with respect to any (i) failure by the Shareholders’ Representative to deliver funds or other property received by the Shareholders’ Representative (on behalf of any ▇▇▇▇▇▇ Shareholder) or any Owner other actions taken by the Shareholders’ Representative, and (ii) reliance by the Subversive Parties on, and actions taken by the Subversive Parties in reliance on, the instructions of, notice given by or any other action taken or omitted by the Shareholders’ Representative.
(d) The Shareholders’ Representative is hereby authorized to establish an account for the purposes of holding the Expense Fund (the “Expense Account”), which shall be funded by Subversive at the Closing in an amount of $50,000. The Shareholders’ Representative may use the Expense Fund to pay or be reimbursed for any fees, costs, expenses or other obligations incurred by the Shareholders’ Representative acting in its capacity as such. The ▇▇▇▇▇▇ Shareholders will not receive any interest or earnings on the Expenses Account and irrevocably transfer and assign to the 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 Expense Fund other than as a result of its gross negligence or willful misconduct. The Shareholders’ Representative will hold these funds separate form its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund shall be treated as having been received and voluntarily set aside by the ▇▇▇▇▇▇ Shareholders at the time of Closing. The Parties agree that the Shareholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the transactions contemplated Expense Fund. Without limiting the foregoing, each ▇▇▇▇▇▇ Shareholder shall, to the extent of its Pro Rata Share, indemnify and defend the Shareholders’ Representative and hold the Shareholders’ Representative harmless from and against any and all costs, expenses (including the fees and expenses of its counsel), Losses or Liabilities (collectively, “Shareholders’ Representative Costs”) incurred by the Shareholders’ Representative arising out of or in connection with the Shareholders’ Representative’s execution and performance of this Agreement, in each case as such Shareholders’ Representative Cost is suffered or incurred; and
provided that, in the event that any such Shareholders’ Representative Cost 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 ▇▇▇▇▇▇ Shareholders the amount of such indemnified Shareholders’ Representative Cost to the extent attributable to such gross negligence or willful misconduct. Any expense incurred by the Shareholders’ Representative in connection with the performance of its duties under this Agreement shall not be the personal obligation of the Shareholders’ Representative but shall be payable by and attributable to the ▇▇▇▇▇▇ Shareholders based on their respective Pro Rata Share. Notwithstanding anything to the contrary in this Agreement, the Shareholders’ Representative shall be entitled and is hereby granted the right to set off and deduct any unpaid or non-reimbursed expenses and unsatisfied liabilities incurred by the Shareholders’ Representative in connection with the performance of its duties hereunder from (ivi) the provisions of Expense Fund or (ii) any Contingent Transaction Consideration at such time as any such amounts would otherwise be distributable to the ▇▇▇▇▇▇ Shareholders, provided that, while this Section 9.13 8.14(d) allows the Shareholders’ Representative to be paid form the aforementioned sources of funds, this does not relieve the ▇▇▇▇▇▇ Shareholders from their obligation to promptly pay the Shareholders’ Representative Costs as they are suffered or incurred, nor does it prevent the Shareholders’ Representative from seeking any remedies available to it under applicable Law. The Shareholders’ Representative may also from time to time submit invoices to the ▇▇▇▇▇▇ Shareholders covering such Shareholders’ Representative Costs, which shall be paid by the ▇▇▇▇▇▇ Shareholders promptly following the receipt thereof based on their respective Pro Rata Share. Upon the request of any ▇▇▇▇▇▇ Shareholder, subject to applicable confidentiality obligations, the Shareholders’ Representative shall provide such ▇▇▇▇▇▇ Shareholder with an accounting for all expenses and liabilities paid by the Shareholders’ Representative in its capacity as such. The Expense Fund shall be retained in whole or in part by the Shareholders’ Representative for such time as the Shareholders’ Representative shall determine in its sole discretion. If the Shareholders’ Representative shall determine in its sole discretion to return all or any portion of the Expense Fund to the ▇▇▇▇▇▇ Shareholders, such amount shall be distributed to the ▇▇▇▇▇▇ Shareholders in accordance with their respective Pro Rata Share as set forth on the Payment Schedule. In no event will the Shareholders’ Representative be binding upon required to advance its own funds on behalf of the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references ▇▇▇▇▇▇ Shareholders or otherwise. Notwithstanding anything in this Agreement to a Seller the contrary, any restriction or an Owner will mean and include limitations on liability or indemnification obligations of, or provisions limiting the successors recourse against non-parties otherwise applicable to, the ▇▇▇▇▇▇ Shareholders set forth elsewhere in this Agreement are not intended to be applicable to the rights indemnities provided to the Shareholders’ Representative under this Section 8.14. The foregoing indemnities will survive the Closing, the resignation or removal of the Sellers and Shareholders’ Representative or the Owners hereunder, whether pursuant to testamentary disposition, the laws termination of descent and distribution or otherwisethis Agreement.
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Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver of any condition to the obligations of the Sellers The Company and the Owners Significant Shareholders hereby authorize, direct and appoint the Shareholders' Representative to consummate the transactions contemplated herebyact as sole and exclusive agent, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative and attorney-in-fact (and representative of the "REPRESENTATIVE").
(b) The Sellers Significant Shareholders and the Owners hereby authorize the Representative (i) other holders of Company Shares, Company Options and Warrants, with full power of substitution with respect to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Sellers matters under this Agreement and the Owners by the terms of this Escrow Agreement.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between determining, giving and receiving notices and processes hereunder and thereunder, receiving certain distributions to or for the Representative benefit of the holders of the Company Shares, the Company Options and the Purchaser Warrants, entering into any documents required or ▇▇▇▇▇▇▇ relating permitted under Section 8, contesting and settling any and all claims for indemnification pursuant to Section 8 hereof, resolving any other disputes hereunder (including disputes with respect to purchase price adjustments or calculations), performing the duties expressly assigned to the waiver Shareholders' Representative hereunder and thereunder and to engage and employ agents and representatives and to incur such other expenses as the Shareholders' Representative shall reasonably deem necessary or prudent in connection with the foregoing. The Shareholders' Representative shall have the sole and exclusive right on behalf of any condition holder of Company Shares, Company Options and Warrants (including the Significant Shareholders) to the obligations of take any Seller action or Owner to consummate the transaction contemplated herebyprovide any waiver, or (ii) the defense or settlement of receive any notice with respect to any claims for which indemnification under Section 8 and to settle any claim or controversy arising with respect thereto. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Sellers Shareholders' Representative consistent herewith, shall be absolutely and irrevocably binding on each holder of Company Shares, Company Options and Warrants (including the Significant Shareholders) as if such Person personally had taken such action, exercised such rights, power or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Ownersauthority or made such decision or determination in such Person's individual capacity, and no Seller or Owner will Person shall have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions . Any action required to be taken by the Representative hereunderSignificant Shareholders hereunder or pursuant to the Escrow Agreement or any action which Significant Shareholders, at their election, have the right to take hereunder or thereunder, shall be taken only by the Shareholders' Representative, and no party hereunder will have Significant Shareholder acting on its own shall be entitled to take any cause such action. All deliveries and payments to be made by the Buyer to the Shareholders' Representative pursuant to Sections 2.3(c), 2.5(d) and 2.8 above shall be made on behalf of action against the Purchaser or ▇▇▇▇▇▇▇ holders of Company Shares, Company Options and Warrants and shall constitute full performance of the obligations of the Buyer to the Shareholders' Representative pursuant to such sections with respect to such amounts. The Buyer shall not be liable for allocation of particular deliveries and payments of such amounts by the Shareholders' Representative. Notwithstanding the foregoing, the Shareholders' Representative shall not take any action taken on behalf of the Significant Shareholders without the approval of such action by a majority of the Significant Shareholders.
(b) The appointment of the Shareholders' Representative as each Significant Shareholder's attorney-in-fact revokes any power of attorney heretofore granted that authorized any other person or persons to represent such Significant Shareholder with regard to this Agreement or the Escrow Agreement. The appointment of the Shareholders' Representative as attorney-in-fact pursuant hereto is coupled with an interest and is irrevocable. The obligations of each Significant Shareholder pursuant to this Agreement (i) will not be terminated by operation of law, death, mental or physical incapacity, liquidation, dissolution, bankruptcy, insolvency or similar event with respect to such Significant Shareholder or any proceeding in connection therewith, or in the case of a trust, by the Purchaser death of any trustee or ▇▇▇▇▇▇▇ in reliance upon trustees or the instructions termination of such trust, or decisions of the Representative;
any other event, and (ii) shall survive the delivery of an assignment by any Significant Shareholders of the whole or any fraction of its interest in any payment due to it under this Agreement or the Escrow Agreement.
(c) The Shareholders' Representative hereby accepts the foregoing appointment and agrees to serve as Shareholders' Representative, subject to the provisions hereof, for the period of time from and after the date hereof without compensation except for the reimbursement from the holders of the Company Shares, the Company Options and the Warrants, out of the Net Working Capital Holdback, of reasonable out of pocket expenses incurred by the Shareholders' Representative in its capacity as such. Each of the Significant Shareholders and the Company hereby acknowledges and agrees, that in appointing Shareholders' Representative as their representative pursuant to the terms and provisions of this Section 10.17, and as specified herein, the Shareholders' Representative shall not, in the absence of bad faith, willful misconduct or gross negligence, have any liability to the Significant Shareholders or the holders of Company Shares, Company Options or Warrants whatsoever with respect to their actions, decisions and determinations, and shall be entitled to assume that all actions, decisions and instructions determinations are fully authorized by each and every one of the Representative will be conclusive and binding upon each Significant Shareholders, the holders of Company Shares, the holders of the Sellers Company Options and all the holders of the OwnersWarrants; provided, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given that such actions take by the Shareholders' Representative under this Agreement, except for fraud or willful misconduct have been approved by a majority of the Representative;Significant Shareholders.
(iiid) the The provisions of this Section 9.13 are independent and severable10.17 shall in no way impose any obligations on the Buyer. In particular, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights notice received by the Buyer to the contrary and absent Buyer's bad faith or remedies willful misconduct, the Buyer (i) shall be fully protected in relying upon and shall be entitled to rely upon, shall have no liability to the Significant Shareholders with respect to, actions, decisions and determinations of the Shareholders' Representative and the FS Management Company and (ii) shall be entitled to assume that either Seller or any Owner may have in connection with all actions, decisions and determinations of the transactions contemplated Shareholders' Representative and the FS Management Company are fully authorized by this Agreement; andall of the Significant Shareholders and the holders of the Company Shares, the Company Options and the Warrants.
(ive) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors With respect to the rights and obligations of the Sellers Shareholders' Representative relating to the Net Working Capital Holdback, the Shareholder Holdback and the Owners hereunder, whether pursuant to testamentary dispositionContingent Purchase Price in this Agreement, the laws of descent FS Management Company is hereby substituted for the Shareholders' Representative throughout this Agreement, and distribution or otherwisethe FS Management Company hereby accepts such substitution and appointment for all such purposes.
Appears in 1 contract
Sources: Merger Agreement (Teleflex Inc)
Shareholders’ Representative. (a) In order to administer efficiently administer (i) the waiver of any condition to the rights and obligations of the Sellers Shareholders under this Agreement, the Shareholders hereby designate and the Owners to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ appoint ▇▇▇▇▇ as histhe Shareholders' Representative, her or its representative to serve as the Shareholders' agent and attorney-in-fact (for the "REPRESENTATIVE")limited purposes set forth in this Agreement.
(b) The Sellers Each of the Shareholders 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 Owners hereby authorize the Representative full power and authority on such Shareholder's behalf (i) to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated herebyby this Agreement, or (bbii) to disburse any funds received hereunder to the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereofShareholders, and (iii) to take execute and deliver on behalf of each Shareholder any amendment or waiver under this Agreement, and to agree to resolution of all Adjustments pursuant to Section 1.4 or 10, and of all Claims hereunder, (iv) to retain legal counsel and other professional services, at the expense of the Shareholders, in connection with the performance by the Shareholders' Representative of this Agreement, and (v) to do each and every act and exercise any and all additional action as is contemplated rights which such Shareholder or Shareholders are permitted or required to be taken by do or on behalf exercise under this Agreement and the other agreements, documents and certificates executed in connection herewith. Each of the Sellers Shareholders agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the Owners by consent of the terms Shareholders' Representative and shall survive the death, bankruptcy or other incapacity of this Agreementany Shareholder.
(c) Each of the Shareholders hereby agrees that any amendment or waiver under this Agreement, 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 Adjustment or Claim (including any action taken to object to, defend, compromise or agree to the payment of such Adjustment or Claim), shall be effective if approved in writing by the Shareholders' Representative and the holders of a majority of the Corporations' Stock (including any Corporations' Stock held by the Shareholders' Representative), or, in the case of any amendment or waiver made or given or action taken after the Closing, if so approved by persons who were the holders of a majority of the Corporations' Stock immediately prior to the Closing, and that each and every action so taken shall be binding and conclusive on every Shareholder, whether or not such Shareholder had notice of, or approved, such amendment or waiver.
(d) ▇▇▇▇▇ shall serve as the Shareholders' Representative until he resigns or is otherwise unable or unwilling to serve. In the event that the a Shareholders' Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such positionposition or is otherwise unable or unwilling to serve, the remaining Shareholders shall select, by the vote of the holders of a majority of the Owners will select another Corporations' Stock immediately prior to the Closing, a successor representative to fill each such vacancy vacancy, shall provide prompt written notice to United of such change and such substituted representative will shall then be irrevocably appointed and designated deemed to be the Shareholders' Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver of any condition to the obligations of the Sellers and the Owners to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner Each Seller hereby irrevocably makes, constitutes and appoints and designates ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as his, her or its representative exclusive agent and true and lawful attorney-in-fact (with full power of substitution to do any and all things and execute any and all documents which may be necessary, convenient or appropriate to facilitate the "REPRESENTATIVE").
(b) The Sellers and consummation of the Owners hereby authorize the Representative transactions contemplated by this Agreement, including but not limited to: (i) make all decisions relating to take the determination of the Actual Closing Date Working Capital Amount; (ii) make all action necessary in connection with decisions relating to the distribution of any amounts payable or distributable to the Sellers hereunder; (aaiii) execution and delivery, on behalf of Sellers, of the Escrow Agreement and any other document required by this Agreement; (iv) receipt of payments hereunder and under the Escrow Agreement and the disbursement thereof to the Sellers and others; (v) receipt and forwarding of notices and communications pursuant to this Agreement and the Escrow Agreement; (vi) administration of this Agreement and the Cash Escrow Agreement, including the resolution of any dispute or claim; (vii) the resolution, settlement, or compromise of any claim for indemnification asserted against Sellers pursuant to 5.1(a); (viii) asserting, on behalf of the Sellers, claims for indemnification under Section 5.1(b) and resolving, settling or compromising all such claims; (ix) consent or agree to any amendment to this Agreement, or waiver of any condition of its terms and conditions; and (x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the obligations consent of any Seller or other Person under any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Sellers and the Owners by the terms of this Agreement.
(c) circumstance. In the event that the Representative dies, becomes ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ is unwilling or unable to perform his responsibilities hereunder serve as Shareholders’ Representative, then each Seller hereby irrevocably makes, constitutes and appoints S. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ as Shareholders’ Representative for all purposes of this Agreement. In the event that both ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and S. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ are unwilling or resigns from such positionunable to serve as Shareholders’ Representative, a majority of the Owners will select another representative to fill then each such vacancy Seller hereby irrevocably makes, constitutes and such substituted representative will be irrevocably appointed and designated the appoints ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as Shareholders’ Representative for all purposes of this Agreement.
(db) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative Buyer and the Purchaser or ▇▇▇▇▇▇▇ relating to Escrow Agent shall be fully protected in dealing with the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Shareholders’ Representative under this Agreement, except for fraud or willful misconduct Agreement and may rely upon the authority of the Shareholders’ Representative to act as agent of the Sellers. Any payment by Buyer to the Representative;
(iii) Shareholders’ Representative under this Agreement shall be considered a payment by Buyer to the provisions Sellers. The appointment of this Section 9.13 are independent and severable, are irrevocable and the Shareholders’ Representative is coupled with an interest and will shall be enforceable notwithstanding irrevocable by any rights Seller in any manner and for any reason. This power of attorney shall not be affected by the disability or remedies that either Seller or incapacity of the principal pursuant to any Owner may have in connection with the transactions contemplated by this Agreement; andapplicable law.
(ivc) The Shareholders’ Representative acknowledges that the Shareholders’ Representative has carefully read and understands this Agreement and the form of Individual Seller Agreement to be entered into by the Minority Shareholders, hereby accepts such appointment and designation, and represents that he will act in his capacity as Shareholders’ Representative in strict compliance with and conformance to the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseAgreement.
Appears in 1 contract
Shareholders’ Representative. (a) In As an integral component of the conversion of the JX Shares pursuant to Article II, and in order to efficiently administer (i) facilitate the waiver of any condition to the obligations consummation of the Sellers and the Owners to consummate the transactions Transactions contemplated hereby, PFire Escrow, Inc. is hereby irrevocably constituted and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereofappointed, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as Company Indemnifying Party, by virtue of his, her or its representative receipt of any Per Share Consideration and, in connection therewith, the execution and delivery of the instrument provided for in Section 2.04(b) shall be deemed to have irrevocably constituted and appointed and shall irrevocably constitute and appoint PFire Escrow, Inc., (and by execution of this Agreement PFire Escrow, Inc. hereby accepts such appointment), as the Company Indemnified Parties’ agent and attorney-in-fact for and on their behalf, with full power of substitution, to act in the name, place and stead of each Company Indemnifying Party (the "REPRESENTATIVE"“Shareholders’ Representative”) with respect to this Agreement and the taking by the Shareholders’ Representative of any and all actions and the making of any decisions required or permitted to be taken by the Shareholders’ Representative under this Agreement or the Escrow Agreement, including the exercise of the power to: (i) execute any amendment or waiver of this Agreement or the Escrow Agreement, and execute and deliver any other document or instrument necessary or advisable in order to carry out the provisions of this Agreement and the Escrow Agreement, (ii) give and receive notices and communications under this Agreement and the Escrow Agreement; (iii) object to claims for indemnification made by Parent under this Article VIII; (iv) agree to, negotiate, enter into settlements and compromises of, and comply with Orders with respect to any dispute arising or claims for indemnification made by Parent under this Agreement; (v) receive the Shareholders’ Representative Fund Amount, to hold such funds, together with any funds otherwise distributable for the account of the Company Indemnifying Parties from the Escrow Agreement that the Shareholders’ Representative determines in its discretion may be needed to pay Shareholders’ Representative Costs and directs be transferred to the Shareholders’ Representative as provided in the Escrow Agreement (collectively, the “Shareholders’ Representative’s Fund”) in a separate account solely within the Shareholders’ Representative’s control and which need not be interest bearing, and to use the amounts in the Shareholders’ Representative’s Fund in furtherance of its duties as Shareholders’ Representative as it may determine in its good faith discretion; provided, however that following the conclusion of its services as Shareholders’ Representative hereunder, any balance of the Shareholders’ Representative Fund not incurred for such purposes shall be returned to the Company Indemnifying Parties in proportion to their respective Pro Rata Portion of the Escrow Account in such manner that the Shareholders’ Representative and Company may prior to the Closing agree in writing, provided further that at any such time as the Shareholders’ Representative shall determine in its discretion that the amounts in the Shareholders’ Representative’s Fund exceed amounts that may be needed for Shareholders’ Representative’s Costs, the Shareholders’ Representative may return such excess to the Company Indemnifying Parties in such agreed manner; and (vi) take all actions necessary or appropriate in the good faith judgment of the Shareholders’ Representative for the accomplishment of the foregoing. Notwithstanding the foregoing, the Shareholders’ Representative shall not be authorized to agree to any amendment or modification of this Agreement that would have the effect of increasing the obligations of a Company Indemnifying Party provided for hereunder without the prior written consent of such Company Indemnifying Party, provided that any amendment or modification that provides for increased obligations to be satisfied solely out of the Escrow Account, Shareholders’ Representative Fund, or both would not require such approval. The power of attorney granted in this Section 8.09 by Company Indemnifying Parties to the Shareholders’ Representative is coupled with an interest and is irrevocable, may be delegated by the Shareholders’ Representative in whole or in part to any one or more third persons selected by the Shareholders’ Representative (who may be paid such compensation from the Shareholders’ Representative’s Fund as the Shareholders’ Representative may determine in its discretion) and shall survive the death or incapacity of any Company Indemnifying Party. The identity of the Shareholders’ Representative and the terms of the agency may be changed, and a successor Shareholders’ Representative may be appointed, from time to time by the Company Indemnifying Parties whose aggregate Pro Rata Portions of the Escrow Account exceed 50%. Further, the Shareholders’ Representative may resign at any time on 30 days notice to Parent and the Company Indemnifying Parties; if the Company Indemnifying Parties do not designate a successor by action of Company Indemnifying Parties whose aggregate Pro Rata Portions of the Escrow Account exceed 50% prior to the end of such period, the resigning Shareholders’ Representative shall be entitled to do so. Any successor to the Shareholders’ Representative shall succeed the former Shareholders’ Representative as Shareholders’ Representative hereunder. No bond shall be required of the Shareholders’ Representative or any person delegated any of the Shareholders’ Representative’s rights or duties (“Delegees”).
(b) The Sellers and Shareholders’ Representative shall promptly provide written notice to the Owners hereby authorize the Representative (i) to take all action necessary in connection with (aa) the waiver Company Indemnifying Parties of any condition material action taken on their behalf by the Shareholders’ Representative pursuant to the obligations authority delegated to the Shareholders’ Representative under this Section 8.09. The Shareholders’ Representative shall at all times act in its capacity as Shareholders’ Representative in a manner that the Shareholders’ Representative believes to be in the best interests of the Company Indemnifying Parties. Neither the Shareholders’ Representative, nor any Seller of its affiliates or Delegees, nor any of the directors, officers, partners, members, agents or employees, if any, of the foregoing, shall be liable to any Person for any error of judgment, or any Owner action taken, suffered or omitted to consummate be taken, under this Agreement or the transactions contemplated herebyEscrow Agreement, except in the case of its fraud or (bb) willful misconduct. The Shareholders’ Representative may consult with legal counsel, independent public accountants and other experts selected by it at the defense and/or settlement sole expense of the Shareholders’ Representative’s Fund and shall not be liable for any claims for which any Seller action taken or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or on behalf experts. The Shareholders’ Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the Sellers and the Owners by the terms 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 shall not exercise any discretion or take any action.
(c) In the event that the Representative dies, becomes unable It shall be a condition of each Company Indemnifying Party’s right to perform his responsibilities hereunder or resigns from such position, a majority receive any portion of the Owners will select another representative Net Merger Consideration or any other payment or benefit hereunder that such person execute a document in which such person shall, in accordance with their Pro Rata Portion and up to fill each the Company Indemnified Party’s portion of Net Merger Consideration received or deemed received by such vacancy person, indemnify and defend the Shareholders’ Representative and hold the Shareholders’ Representative harmless against any Loss, damage, cost, Liability or expense incurred without fraud or willful misconduct by the Shareholders’ Representative and arising out of or in connection with the acceptance, performance or administration of the Shareholders’ Representative’s duties under this Agreement or the Escrow Agreement. The Shareholders’ Representative shall not be entitled to a profit for its services in that capacity, but shall be entitled to reimbursement for any and all costs of providing such substituted representative will services, including the internal cost of the time of its internal legal department and other internal costs, all as determined by the Shareholders’ Representative in its discretion. Any such costs and any and all other Liabilities, Losses, penalties, fines, claims, damages, out-of pocket costs or expenses incurred by or reasonably expected to be irrevocably appointed incurred by the Shareholders’ Representative in connection with the acceptance, performance and designated administration of its duties as the Shareholders’ Representative for all purposes pursuant to this Agreement (including the hiring of Delegees, legal counsel, accountants or auditors and other advisors pursuant to the terms of this AgreementAgreement but excluding any of the foregoing arising out to the Shareholders’ Representative’s fraud or willful misconduct) (“Shareholders’ Representative’s Costs”), shall be paid first, by recourse to the Shareholders’ Representatives’ Fund, and if such amounts are insufficient to pay such Shareholders’ Representative’s Costs, directly by the Company Indemnifying Parties in proportion to their respective Pro Rata Portion of the Escrow Account up to the Company Indemnified Party’s portion of Net Merger Consideration received or deemed received by such person.
(d) In all matters relating to Article VIII, the Shareholders’ Representative shall be the only party entitled to assert the rights of the Company Indemnifying Parties. All decisions decisions, actions and actions by instructions of the Shareholders’ Representative, including, without limitation, (i) including any agreement between the Shareholders’ Representative and the Purchaser or ▇▇▇▇▇▇▇ Parent relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners Company Indemnifying Parties may be required to indemnify any of the Purchaser Parent Indemnified Parties pursuant to this Article 8 hereofVIII, will shall be conclusive and binding upon each of the Sellers and all of the OwnersCompany Indemnifying Parties, and no Seller or Owner will Company Indemnifying Party shall have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of , except for fraud or willful misconduct by the Shareholders’ Representative in connection with the matters described in this Agreement, each of the Sellers Section 8.09. Parent and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will Escrow Agent shall be able entitled to rely conclusively on the instructions and decisions of the Shareholders’ Representative as to (aa) the determination of the Net Merger Consideration, or the settlement of any claims arising out for indemnification by any of the Indemnitees pursuant to Article 8 VIII hereof, or (bb) any other actions required or permitted to be taken by the Shareholders’ Representative hereunderhereunder or under the Escrow Agreement, and no party Company Indemnifying Party hereunder will shall have any cause of action against Parent or the Purchaser or ▇▇▇▇▇▇▇ Escrow Agent for any action taken by the Purchaser or ▇▇▇▇▇▇▇ Parent in reliance upon the instructions or decisions of the Shareholders’ Representative;.
(iie) all actionsThe Shareholders’ Representative shall have reasonable access to information about the Surviving Corporation and the reasonable assistance of Surviving Corporation’s executive officers for purposes of performing its duties and exercising its rights hereunder; provided that the Shareholders’ Representative shall treat confidentially and not disclose any nonpublic information from or about Surviving Corporation or the Parent to anyone (except on a need to know basis to individuals who agree in writing to treat such information confidentially); provided, decisions further, that such access and instructions of assistance shall not interfere with or adversely affect the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;Surviving Corporation’s business.
(iiif) the The provisions of this Section 9.13 8.09 (i) are independent and severable, are irrevocable and coupled with an interest and will shall be enforceable notwithstanding any rights or remedies that either Seller or any Owner Company Indemnifying Party may have in connection with the transactions contemplated by this AgreementTransactions; and
and (ivii) the provisions of this Section 9.13 will shall be binding upon the executors, heirs, legal representatives representatives, personal representatives, successor trustees and successors of each Seller and each OwnerCompany Indemnifying Party, and any references in this Agreement to a Seller or an Owner will Company Indemnifying Party shall mean and include the successors to the Company Indemnifying Party’s rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Shareholders’ Representative. (a) In order By execution of this Agreement, each Shareholder hereby irrevocably appoints Lincoln ▇▇▇▇▇▇▇ (the “Shareholders Representative”) as such Shareholder’s representative, attorney-in-fact and agent, with full power of substitution to efficiently administer act in the name, place and stead of such Shareholder with respect to the transfer of such Shareholder’s Shares to the Purchaser in accordance with the terms and provisions of this Agreement and to act on behalf of such Shareholder in any amendment of or litigation or arbitration involving this Agreement and to do or refrain from doing all such further acts and things, and to execute all such documents or take any actions, as such Shareholder shall deem necessary or appropriate in conjunction with any of the Transactions contemplated by this Agreement, including the power:
(i) to take all action necessary or desirable in connection with the waiver of any condition to the obligations of the Sellers and the Owners Shareholders to consummate the transactions Transactions contemplated hereby, and by this Agreement;
(ii) to negotiate, execute and deliver all ancillary agreements, statements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the defense and/or settlement consummation of the Transactions contemplated by this Agreement (it being understood that such Shareholder shall execute and deliver any such documents which the Shareholders Representative agrees to execute), whether required before or after the Closing Date;
(iii) to give and receive all notices and communications to be given or received under this Agreement and to receive service of process in connection with the any claims for under this Agreement, including service of process in connection with arbitration; and
(iv) to take all actions which under this Agreement may be taken by the Shareholders and to do or refrain from doing any further act or deed on behalf of the Shareholder which the Sellers Shareholders Representative deems necessary or appropriate in his sole discretion relating to the Owners may be required to indemnify subject matter of this Agreement, whether arising prior to, on or after the Purchaser Indemnified Parties pursuant to Article 8 hereofClosing Date, each of the Sellers as fully and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ completely as his, her or its representative and attorney-in-fact (the "REPRESENTATIVE")such Shareholder could do if personally present.
(b) The Sellers appointment of the Shareholders Representative hereunder is coupled with an interest and is irrevocable until such time as the Owners hereby authorize the Representative (i) to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties Purchase Price due and payable pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Sellers and the Owners by the terms of this AgreementAgreement has been paid in full and all claims asserted by, and disputes with, the Purchaser have been finally satisfied, waived or otherwise resolved or the time for bringing any such claims has expired.
(c) In the event that the Representative diesThe Purchaser shall not have any obligation to take any action sought by, becomes unable or respond to perform his responsibilities hereunder or resigns from such positionany communication from, a majority any of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated Shareholders except as communicated by the Representative for all purposes Shareholders Representative. The provisions of this AgreementSection 10.2 shall in no way impose any obligations on the Purchaser. In particular, notwithstanding any notice received by the Purchaser to the contrary, the Purchaser (i) shall be fully protected in relying upon, shall be entitled to rely upon, and shall have no liability to the Shareholders with respect to, actions, decisions and determinations of the Shareholders Representative and (ii) shall be entitled to assume that all actions, decisions and determinations of the Shareholders Representative are fully authorized by all of the Shareholders.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating Notwithstanding anything contained in this Agreement to the waiver of contrary, any condition Action, whether in Law or equity, to enforce any right, benefit or remedy granted to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative Shareholders under this Agreement, except including claims for fraud indemnification under Article VIII, may be asserted, brought, prosecuted or willful misconduct maintained only by the Shareholders Representative;
(iii) , and the provisions Shareholders hereby irrevocably waive any right to enforce such rights in their own name. The Shareholders consent and agree that any Action, whether in Law or equity, to enforce any right, benefit or remedy granted to the Purchaser under this Agreement, including claims for indemnification under Article VIII, may be asserted, brought, prosecuted or maintained by the Purchaser against the Shareholders by service of process on the Shareholders Representative and without the necessity of serving process on, or otherwise joining or naming as a defendant in such Action, any of the Shareholders. For this Section 9.13 are independent purpose, each Shareholder hereby irrevocably stipulates and severableagrees that the Shareholders Representative is a proper party defendant to represent its interests in any such proceeding and to appear on its behalf for all purposes therein, are irrevocable and coupled with an interest that service of process upon the Shareholders Representative shall be effective to bind such Shareholders for all purposes of any such proceeding. Each Shareholder hereby irrevocably waives any and will be enforceable notwithstanding any all rights or remedies that either Seller or any Owner it may have to object to jurisdiction or venue in connection with the transactions contemplated by this Agreement; and
(iv) the provisions any proceeding in which service of this Section 9.13 will be binding process is served upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and Shareholders Representative on such Shareholder’s behalf. With respect to any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary dispositionforegoing, the laws Shareholders shall be bound by any determination in favor of descent and distribution or otherwiseagainst the Shareholders Representative or the terms of any settlement or release to which the Shareholders Representative shall become a party, including any confession of judgment or other stipulation or settlement granted or entered into by the Shareholders Representative on their behalf.
Appears in 1 contract
Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver of any condition to the obligations By virtue of the Sellers and approval of this Agreement by the Owners to consummate shareholders of the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereofCompany, each of Company Equity Holder hereby appoints DVT Holdings Limited to act as the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative and attorney-in-fact and agent for and on behalf of the Company Equity Holders (the "REPRESENTATIVEShareholders' Representative").
(b) The Sellers and the Owners hereby authorize the Representative (i) to take all action necessary in connection with (aa) the waiver of any condition respect to the obligations taking of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated actions and the making of any decisions required or permitted to be taken by or on behalf of the Sellers Shareholders' Representative under this Agreement and the Owners by the terms of this Escrow Agreement.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, the power to (i) arbitrate, resolve, settle or compromise any agreement between the Representative dispute regarding indemnification claims or matters arising out of this Agreement and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) take all actions necessary in the defense judgment of the Shareholders' Representative for the accomplishment of the foregoing. Notices to or settlement from the Shareholders' Representative shall constitute notice to or from each Company Equity Holder. A decision, act, consent or instruction of the Shareholders' Representative in connection with any claims for which of the Sellers or foregoing matters shall constitute a decision of all of the Owners may Company Equity Holders and shall be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereoffinal, will be binding and conclusive upon each of the Sellers Company Equity Holders, and all Parent and the Surviving Corporation may rely upon any such written decision, consent or instruction of the OwnersShareholders' Representative as being the decision, consent or instruction of each and no Seller every Company Equity Holder. The Escrow Agent, Parent and the Surviving Corporation are hereby relieved from any liability to any Person for the acts done by them in accordance with such decision, consent or Owner will have instruction of the right to object, dissent, protest or otherwise contest Shareholders' Representative. In performing the same.
(e) By their execution of functions specified in this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Shareholders' Representative will not be conclusive and binding upon each liable to any Company Equity Holder in the absence of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by on the part of the Shareholders' Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller act done or an Owner will mean and include the successors omitted pursuant to the rights advice of counsel shall be conclusive evidence of the Sellers Shareholders' Representative's good faith. If the Shareholders' Representative shall resign or become unable to fulfill its duties as such, then the Shareholders' Representative shall be entitled to appoint its replacement and shall promptly notify the Owners hereunder, whether pursuant to testamentary disposition, the laws Escrow Agent and Parent of descent and distribution or otherwisesuch appointment.
Appears in 1 contract
Sources: Merger Agreement (Cognex Corp)
Shareholders’ Representative. (a) In order By executing this Agreement, each of the Shareholders (notwithstanding any Shareholder's current or future mental or physical disability or incompetency) hereby irrevocably constitutes and appoints ▇.▇. ▇▇▇▇▇ and his successors, acting as hereinafter provided, as his attorney-in- fact and agent in his name, place and ▇▇▇▇▇ in connection with the transactions and agreements contemplated by this Agreement with respect to efficiently administer matters: (i) the waiver of any condition prior to the obligations of the Sellers and the Owners to consummate the transactions contemplated herebyClosing Date, as specified herein, and (ii) subsequent to the defense and/or settlement Closing Date (the "Shareholders' Representative"), and acknowledges that such appointment is coupled with an interest. By executing this Agreement under the heading "Shareholders' Representative," ▇.▇. ▇▇▇▇▇ hereby (i) accepts his 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 his obligations under, and otherwise comply with, this Section 12.10.
(b) Each Shareholder by this Agreement fully and completely hereby: (a) authorizes the Shareholders' Representative (i) to dispute or to refrain from disputing any claim made by Purchaser under this Agreement or the other Purchase Agreements, (ii) to negotiate and compromise any dispute which may arise under, and to exercise or refrain from exercising remedies available under this Agreement or the other Purchase Agreements and to sign any release or other document with respect to such dispute or remedy, (iii) 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 or the other Purchase Agreements (iv) waive any condition to the Closing, and (v) to agree in his discretion with the Purchaser to amend this Agreement; and (b) agrees to be bound by all agreements and determinations made by and documents executed and delivered by the Shareholders' Representative under this Agreement or the other Purchase Agreements.
(c) Each of the Shareholders hereby expressly acknowledges and agrees that the Shareholders' Representative is authorized to act on his behalf, notwithstanding any dispute or disagreement between the Shareholders, and that Purchaser and any other person or entity shall be entitled to rely on any and all actions taken by the Shareholders' Representative under this Agreement or the other Purchase Agreements without any liability to, or obligation to inquire of, any of the Shareholders. Purchaser and any other person or entity is hereby expressly authorized to rely on the genuineness of the signatures of both members of the Shareholders' Representative, and upon receipt of any claims for writing which reasonably appears to have been signed by Shareholders' Representative, Purchaser and any other person or entity may act upon the Sellers or same without any further duty of inquiry as to the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each genuineness of the Sellers and each Owner hereby irrevocably appoints and designates writing.
(d) If ▇.▇. ▇▇▇▇▇ ceases to function in his capacity as the Shareholders' Representative for any reason whatsoever, then C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as his, her or its representative and attorney-in-fact (shall have the "REPRESENTATIVE")right to appoint a successor.
(be) The Sellers authorizations of the Shareholders' Representative shall be effective until his rights and obligations under this Agreement terminate by virtue of the Owners hereby authorize the Representative (i) to take all action necessary in connection with (aa) the waiver termination of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf obligations of the Sellers and Shareholders to the Owners by the terms of Purchaser under this Agreement.
(cf) In Shareholders who execute this Agreement shall jointly and severally indemnify the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Shareholders' Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of his successor and assigns harmless from and against any condition to the obligations of any Seller or Owner to consummate the transaction contemplated herebyand all claims, or (ii) the defense or settlement of any claims for which the Sellers or the Owners liabilities, losses, damages, fines, penalties and expenses, including out-of-pocket expenses and legal fees and expenses that may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller imposed in connection with or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken the performance by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Shareholders' Representative under this Agreement, except for fraud provided that the Shareholders' Representative has not acted with gross negligence or in bad faith or exhibited willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwisemisconduct.
Appears in 1 contract
Sources: Merger Agreement (Netzee Inc)
Shareholders’ Representative. (a) In order to efficiently administer The Company Shareholders (i) the waiver of any condition to the obligations by virtue of the Sellers approval of the Merger and the Owners to consummate adoption of this Agreement) hereby irrevocably nominate, constitute and appoint Malcolm Lewis as the transactions contemplated hereby, agent and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each true and lawful attorney-in-fact of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ eholders, with full power of substitution, to act in the name, place and stead of the Company Shareholders for purposes of executing any documents and taking any actions that the Shareholders' Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement, including in connection with any claim for indemnification under Section 8. Malcolm Lewis hereby accepts his appointment as his, her or its representative and attorney-in-fact (the "REPRESENTATIVE")Shareholders' Repr▇▇▇▇▇▇▇▇▇▇.
(b) The Sellers Company Shareholders (by virtue of the approval of the Merger and the Owners hereby authorize the Representative (iadoption of this Agreement) to take all action necessary in connection with (aa) the waiver of any condition grant to the obligations of any Seller or any Owner Shareholders' Representative full authority to consummate the transactions contemplated herebyexecute, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereofdeliver, acknowledge, certify and (iii) to take any and all additional action as is contemplated to be taken by or file on behalf of the Sellers and Company Shareolders (in the Owners by the terms of this Agreement.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver name of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller Company Shareholders or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bbotherwise) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of documents that the Owners, and no party hereto will have any cause of action against the RepresentativeShareholders' Representative may, in his capacity sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as a Representativethe Shareholders' Representative may, for in his sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 10.12(a). Notwithstanding anything to the contrary contained in this Agreement or in any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have other contract executed in connection with the transactions contemplated by this Agreement; and, Buyer shall be entitled to deal exclusively with the Shareholders' Representative on all matters relating to Section 8 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 Company Shareholders by the Shareholders' Representative and on any other action taken or purported to be taken on behalf of any Company Shareolders by the Shareholders' Representative, as fully binding upon such Company Shareolders.
(ivc) The power of attorney granted in Section 10.12(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the provisions Shareholders' Representative; and (iii) shall survive the dissolution, death or incapacity of each of the Company Shareholders.
(d) If the Shareholders' Representative shall die, become disabled or otherwise be unable to fulfill his responsibilities as agent of the Company Shareholders, then a majority in interest of the other Company Shareholders shall, within 10 days after such death or disability, appoint a successor agent for the Company Shareholders and, promptly thereafter, shall notify Buyer of the identity of such successor. Any such successor shall become the "Shareholders' Representative" for purposes of this Section 9.13 will Agreement.
(e) The Shareholders' Representative shall not be binding upon liable to any Company Shareholder for any act done or omitted hereunder as the executors, heirs, legal representatives and successors of each Seller and each Owner, Shareholders' Representative while acting in good faith (and any references act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith) and without gross negligence or willful misconduct. All losses, liabilities and expenses incurred by the Shareholders' Representative in connection with the performance of its duties as Shareholders' Representative shall be borne and paid exclusively by the Company Shareholders. If not paid directly to the Shareholders' Representative by the Company Shareholders, such losses, liabilities and expenses may be recovered by the Shareholders' Representative from the Escrow Amount otherwise distributable to the Company Shareholders (and not distributed or distributable to an Indemnified Party). All of the indemnities, immunities and powers granted to the Shareholders' Representative under this Agreement to a Seller or an Owner will mean and include shall survive the successors to the rights termination of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.this Agreement. * * *
Appears in 1 contract
Sources: Merger Agreement (LOCAL.COM)
Shareholders’ Representative. (aA) In order Each of the Shareholders hereby irrevocably constitutes and appoints Andrew M. ▇▇▇▇▇▇, ▇▇▇, ▇nd Mr. Hunt▇▇ ▇▇▇▇▇▇ accepts such appointment, as their agent and attorney-in-fact with full power of substitution and revocation to efficiently administer 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 waiver rights of any condition one Shareholder relative to the obligations of the Sellers and the Owners to consummate the transactions contemplated hereby, and any other Shareholders; (ii) the defense and/or execution of documents and certificates pursuant to this Agreement; (iii) determination of the 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 take all actions which the Shareholders Representative considers necessary or desirable in connection with the defense, pursuit or settlement of any determinations relating to the matters described above, including to sue, def▇▇▇, negotiate, settle and compromise any such claims for indemnification made by Buyer pursuant to this Agreement or any of the 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 Sellers Shareholders Representative (in his sole discretion) considers necessary or appropriate in connection with the Owners may 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 required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇fully protected in dealing with Mr. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇his Agreement and may rely upon the authority of Mr. Hunt▇▇ ▇▇ act as his, her the Shareholders Representative. The Shareholders Representative is authorized to act on the Shareholders' behalf notwithstanding any dispute or its representative and attorney-in-fact (disagreement among the "REPRESENTATIVE").
(b) Shareholders. The Sellers and the Owners hereby authorize the Representative (i) to take all action necessary in connection with (aa) the waiver appointment of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Sellers and the Owners by the terms of this Agreement.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇Mr. ▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇ ▇▇▇▇led with an interest and is irrevocable by any Shareholder in any manner or for any reason, unless written revocation is personally delivered to Mr. Hunt▇▇ ▇▇▇ will be able ▇▇▇ Buyer on or prior to rely conclusively the time that action on the instructions and decisions behalf of the Representative as Shareholders is taken or payments or deliveries are made, in which case such revocation shall only apply to (aa) the settlement of any claims arising out of Article 8 hereof, actions taken or (bb) any other actions required 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 hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by reason, the Purchaser or ▇▇▇▇▇▇▇ Shareholders holding a majority interest in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity Retained Stock shall choose a person to act as a Representative, for any action taken, decision made or instruction given by the 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 for 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 willful misconduct were taken or not taken in bad faith. The Shareholders Representative shall be indemnified and held harmless by the Representative;
(iii) the provisions of this Section 9.13 are independent Shareholders against all costs, expenses and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights damages paid or remedies that either Seller or any Owner may have incurred in connection with any action, suit, proceeding or claim to which the transactions contemplated Shareholders Representative is made a party by reason of the fact that he was acting as the Shareholders Representative pursuant to this Agreement; and
(iv) provided, however, that the provisions of this Section 9.13 will Shareholders Representative shall not be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement entitled to a Seller or an Owner will mean and include the successors indemnification hereunder to the rights extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the Sellers 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 Owners hereunder, whether pursuant appropriate person and in acting or refusing to testamentary disposition, the laws of descent and distribution or otherwiseact in good faith on any matter.
Appears in 1 contract
Sources: Recapitalization Agreement (Diamond Brands Operating Corp)
Shareholders’ Representative. (a) In order to efficiently administer (i) Except as expressly provided herein, the waiver of any condition to the obligations rights, duties, obligations, status and successorship of the Sellers Shareholders' Representative shall be determined as provided in the Appointment Agreements among the Shareholders' Representative and the Owners to consummate Participating Holders and in the transactions form contemplated hereby, and (ii) by the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative and attorney-in-fact Merger Agreement (the "REPRESENTATIVEAppointment Agreements"). Notwithstanding the foregoing, in the event of any conflict or inconsistency between the provisions of this Agreement and the Appointment Agreement, the provisions of the Appointment Agreement shall govern. All decisions of the Shareholders' Representative pursuant to this Agreement shall be binding upon the Participating Holders. The Shareholders' Representative shall keep the Participating Holders reasonably informed of his or her decisions of a material nature.
(b) The Sellers and the Owners hereby authorize the Shareholders' Representative (i) to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) is authorized to take any action deemed by him appropriate or necessary to carry out the provisions of, and all additional action as is contemplated to be taken by or on behalf determine the rights of the Sellers and Participating Holders under this Agreement. The Shareholders' Representative shall promptly notify the Owners Escrow Agent of any change in the address of any Participating Holder or any transfer (by operation of law or otherwise) of the terms right of any Participating Holder to receive Escrow Shares hereunder. The Shareholders' Representative shall serve as the agent of the Participating Holders for all purposes related to this Agreement, including without limitation service of process upon the Participating Holders. By his or her execution of this Agreement, the Shareholders' Representative accepts and agrees to diligently discharge the duties and responsibilities of the Shareholders' Representative set forth in this Agreement. The authorization and designation of the Shareholders' Representative under this Section 7(b) shall be binding upon the successors and assigns of each Participating Shareholder. SWI and the Escrow Agent shall be entitled to rely upon such authorization and designation and shall be fully protected in dealing with the Shareholders' Representative, and shall have no duty to inquire into the authority of any person reasonably believed by any of them to be the Shareholders' Representative.
(c) The Shareholders' Representative (i) shall be entitled to treat as genuine any letter or other document furnished to him or her by SWI or the Escrow Agent and believed by him or her to be genuine and have been signed and presented by the proper party or parties; and (ii) shall be reimbursed for counsel fees and other out-of-pocket expenses incurred by the Shareholders' Representative in connection with this Agreement out of the net proceeds from the sale of Escrow Shares by the Escrow Agent as provided in paragraph (d) below.
(d) The Shareholders' Representative shall not be entitled to any compensation for services hereunder. To the extent the Shareholders' Representative shall incur out-of-pocket costs in the performance of his duties hereunder, the Shareholders' Representative shall be authorized to direct the Escrow Agent to distribute to the Shareholders' Representative for sale in the open market that number of Escrow Shares sufficient to generate net proceeds to reimburse the Shareholders' Representative for such out-of-pocket costs; provided, however, that the aggregate Closing Market Value of all Escrow Shares distributed to the Shareholders' Representative and sold for such purpose to pay expenses incurred with respect to defending claims pursuant to Section 10.5 of the Merger Agreement shall not exceed 12% of the aggregate Closing Market Value of all of the Escrow Shares and the aggregate Closing Market Value of all Escrow Shares distributed to the Shareholder Representative and sold to pay any other expenses incurred by the Shareholder Representative (together with any Escrow Shares sold to pay the arbitration expenses of the Participating Holders in accordance with Section 7(e)) shall not exceed 3% of the aggregate Closing Market Value of all the Escrow Shares (collectively, the "Reimbursement Shares"). In the event that the Representative dies, becomes unable to perform his responsibilities hereunder aggregate Claims and Set Aside Amounts exceed or resigns from such position, a majority would exceed 85% of the Owners will select another representative Closing Market Value of all the Escrow Shares, the Reimbursement Shares shall be held and distributed to fill each the Shareholders' Representative first, to the extent necessary to reimburse the Shareholders' Representative as contemplated by this Section, and second, any remaining Reimbursement Shares may be used to satisfy indemnification Claims of SWI or held as a Set Aside Amount until all claims are satisfied or the Escrow Shares are exhausted. At the direction of the Shareholders' Representative to distribute Escrow Shares pursuant to this Section and the submission to the Escrow Agent of documentation of the expenses incurred, the Escrow Agent shall effect payment of such vacancy shares to the Shareholders' Representative by surrendering such Escrow Shares to SWI's transfer agent and such substituted representative will be irrevocably appointed instructing the transfer agent and designated to issue a certificate for the Representative for all purposes number of this Agreement.
(d) All decisions and actions shares requested by the Representative, including, without limitation, (i) any agreement between Shareholders' Representative registered in the name of the Shareholders' Representative and to issue a replacement certificate for the Purchaser or ▇▇▇▇▇▇▇ relating remaining Escrow Shares to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the sameEscrow Agent.
(e) By their execution To the extent that the Participating Holders are obligated to pay arbitration expenses pursuant to Section 3(c), the Shareholders' Representative shall be authorized to, and shall, direct the Escrow Agent to distribute to the Shareholders' Representative for sale in the open market, that number of Escrow Shares sufficient to generate net proceeds that will satisfy such obligations; provided, however, the number of Escrow Shares distributed to the Shareholders' Representative and sold for such purpose shall be subject to the limitation set forth in Section 7(d) above. At the direction of the Shareholders' Representative to distribute Escrow Shares pursuant to this Section and the submission to the Escrow Agent of documentation of the expenses incurred, the Escrow Agent shall effect payment of such shares to the Shareholders' Representative by surrendering such Escrow Shares to SWI's transfer agent and instructing the transfer agent to issue a certificate for the number of shares requested by the Shareholders' Representative registered in the name of the Shareholders' Representative and to issue a replacement certificate for the remaining Escrow Shares to the Escrow Agent. The Escrow Agent shall have no duty to determine, nor to verify any calculations or limitations set forth in Section 7(d) above, and shall rely on the Shareholders' Representative's request for shares to be within the guidelines set forth herein.
(f) Notwithstanding anything to the contrary in this Agreement, each of the Sellers and Shareholders' Representative shall not have any personal liability to SWI, the Owners agree that:
(i) the Purchaser Escrow Agent or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity person as a Representative, for any action taken, decision made or instruction given by the Representative under result of this Agreement, except for fraud any liability (other than for a Claim itself or for any obligation of the Participating Holders to pay expenses or indemnify the Escrow Agent, for which the Shareholders' Representative shall not be liable) resulting from the gross negligence or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseShareholders' Representative.
Appears in 1 contract
Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver of any condition to the obligations of the Sellers and the Owners to consummate the transactions contemplated herebyThe Shareholders’ Representative, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may who shall initially be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably appoints and designates R▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ , is constituted and appointed as hisagent for and on behalf of the Pre-Closing Shareholders as of the Effective Time to give and receive notices and communications, her to authorize delivery to Acquiror of funds from the Escrow Fund in satisfaction of claims by Acquiror, to object to such deliveries, to make claims on behalf of the Pre-Closing Shareholders, to agree to, negotiate, enter into settlements and compromises of, and make claims and comply with awards with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, or otherwise as permitted hereunder. The Shareholders’ Representative may be changed by the holders of a majority in interest of the Pre-Closing Shareholders from time to time upon not less than ten (10) days’ prior written notice to Acquiror. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative shall constitute notice to or from each of the Pre-Closing Shareholders. Without limiting the generality of the foregoing, the Shareholders’ Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof or thereof in its representative and attorney-in-fact (the "REPRESENTATIVE")capacity as Shareholders’ Representative.
(b) The Sellers Shareholders’ Representative shall not be liable for any act done or omitted hereunder as Shareholders’ Representative while acting in good faith and in the Owners hereby authorize the Representative (i) to take all action necessary in connection with (aa) the waiver exercise of reasonable judgment and any condition act done or omitted pursuant to the obligations advice of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement counsel shall be conclusive evidence of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Sellers and the Owners by the terms of this Agreementsuch good faith.
(c) In The Shareholders’ Representative shall be given reasonable access to information about the event that Surviving Corporation and the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority reasonable assistance of the Owners will select another representative to fill each such vacancy Surviving Corporation’s officers and such substituted representative will be irrevocably appointed and designated the Representative employees for all purposes of this performing its duties and exercising its rights hereunder, and shall have the right to reimbursement from the Escrow Fund of his reasonable fees and expenses (including attorneys’ fees and the costs of experts and advisors) incurred in connection with his duties as the Shareholders’ Representative hereunder and as the Investors’ Representative under the Rollover Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any Any action taken by the Purchaser or ▇▇▇▇▇▇▇ Shareholders’ Representative pursuant to the authority granted in reliance upon this Section 10.08 shall be effective and absolutely binding as the instructions or decisions action of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative Pre-Closing Shareholders under this Agreement. Acquiror may rely upon any decision, except for fraud act, consent or willful misconduct by instruction of the Representative;
(iii) Shareholders’ Representative as being the provisions of this Section 9.13 are independent and severabledecision, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights act, consent or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors instruction of each Seller and each Ownerevery Pre-Closing Shareholder. Acquiror is hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, and any references in this Agreement to a Seller act, consent or an Owner will mean and include the successors to the rights instruction of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseShareholders’ Representative.
Appears in 1 contract
Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver of any condition addition to the obligations other rights and authority granted to the Shareholders’ Representative elsewhere in this Agreement and except as expressly provided herein, by participating in the execution and delivery of this Agreement and receiving the Sellers and benefits thereof, including the Owners right to consummate receive the consideration payable in connection with the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereofby this Agreement, each of the Sellers and each Owner Company Shareholder hereby irrevocably authorizes and appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as hisagent, her or its representative and attorney-in-fact (the "REPRESENTATIVE").
(b) The Sellers and the Owners hereby authorize the Representative (i) representative to take all action necessary in connection with (aa) the waiver act for and on behalf of such Company Shareholder regarding any condition matter under this Agreement or relating to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) with full power of substitution to act in the defense and/or settlement name, place and stead of any claims for which any Seller or Owner may be required such Company Shareholder and to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or act on behalf of the Sellers and the Owners by the terms of this Agreement.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating Company Shareholder with respect to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction transactions contemplated hereby, including in any amendment of or (ii) the defense dispute, litigation or settlement of any claims for which the Sellers arbitration involving this Agreement and to do or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers refrain from doing all such further acts and all of the Ownersthings, and no Seller or Owner will have to execute all such documents, as the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Shareholders’ Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required shall determine to be taken by the Representative hereunder, and no party hereunder will have necessary or appropriate in conjunction with any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
. This power of attorney and all authority hereby conferred is coupled with an interest and is irrevocable and shall not terminate or otherwise be affected by the death, disability, incompetence, bankruptcy or insolvency of any Company Shareholder. Except as expressly provided herein, no Company Shareholder shall directly have the right to exercise any right hereunder, it being understood and agreed that all such rights shall only be permitted to be exercised by the Shareholders’ Representative on behalf of the Company Shareholders. Without limiting the generality of the foregoing, the Shareholders’ Representative has full power and authority, on behalf of each Company Shareholder and such Company Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Company Shareholders in connection herewith, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement, (iii) receive service of process in connection with any claims under this Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the provisions defense of Third-Party Claims, prosecute and defend claims for indemnification under ARTICLE XI and comply with orders of courts with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (viii) assert the attorney-client privilege on behalf of the Company Shareholders with respect to any communications that relate in any way to the transactions contemplated hereby, (ix) deliver to Parent any and all Ancillary Agreements executed by the Company Shareholders and deposited with the Shareholders’ Representative, upon the Shareholders’ Representative’s determination that the conditions to Closing have been satisfied or waived and (x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative on behalf of the Company Shareholders in connection with this Agreement. 75
(b) Service by the Shareholders’ Representative shall be without compensation except for the reimbursement by the Company Shareholders of out-of-pocket expenses and indemnification specifically provided herein.
(c) Notwithstanding Section 12.11(a), if the Shareholders’ Representative believes that he or she requires further authorization or advice from any Company Shareholder on any matters concerning this Agreement or any other agreement contemplated hereby, the Shareholders’ Representative will be entitled, but not obligated, to seek such further authorization solely from such Company Shareholder.
(d) From and after the date hereof, but except as expressly provided herein, each of Parent and the Company is entitled to deal exclusively with the Shareholders’ Representative on all matters relating to this Agreement and the transactions contemplated hereby. A decision, act, consent or instruction of the Shareholders’ Representative constitutes a decision of all the Company Shareholders in respect of this Agreement and the transactions contemplated hereby. Such decision, act, consent or instruction is final, binding and conclusive upon each Company Shareholder, and each of Parent and the Company 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 Company Shareholder by the Shareholders’ Representative, and on any other decision, act, consent or instruction taken or purported to be taken on behalf of any Company Shareholder by the Shareholders’ Representative, as being fully binding upon such Person. Notices or communications to or from the Shareholders’ Representative will constitute notice to or from each Company Shareholder. 76
(e) The Shareholders’ Representative may resign at any time, and may appoint a new Shareholders’ Representative to act in his or her stead, and may be removed for any reason or no reason by the vote or written consent of the Company Shareholders holding a majority of the Company Ordinary Shares as of the date hereof; provided, however, in no event shall the Shareholders’ Representative be removed without the Company Shareholders holding a majority of the Company Ordinary Shares having first appointed a new Shareholders’ Representative who shall assume such duties immediately upon the removal of the Shareholders’ Representative. In the event of the death, incapacity, or removal of the Shareholders’ Representative, a new Shareholders’ Representative shall be appointed by the vote or written consent of the Company Shareholders holding a majority of the Company Ordinary Shares as of the date hereof and a copy of the written consent or minutes appointing such new Shareholders’ Representative shall be sent to Parent, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Parent; provided that until such notice is received, Parent and the Company shall be entitled to rely on the decisions and actions of the prior Shareholders’ Representative as described in this Section 9.13 12.11.
(f) The Shareholders’ Representative shall hold and be entitled to use the Shareholders’ Representative Fund, defined below, for the purposes of paying for, or reimbursing the Shareholders’ Representative for, any and all costs and expenses (including counsel and legal fees and expenses) incurred by the Shareholders’ Representative in connection with the protection, defense, enforcement or other exercise or fulfillment of any rights or obligations under this Agreement (collectively, the “Shareholders’ Representative Expenses”). The Shareholders’ Representative shall hold the Shareholders’ Representative Fund in a segregated bank account and shall not comingle it with any other funds (the “Representative Fund”. At such time as the Shareholders’ Representative deems appropriate, the Shareholders’ Representative shall distribute to the Company Shareholders (in accordance with their respective Pro Rata Shares) the remaining Shareholders’ Representative Fund. The Shareholders’ Representative will be binding promptly reimbursed by the Company Shareholders (based on their respective Pro Rata Shares) for Shareholders’ Representative Expenses not covered by the Shareholders’ Representative Fund upon demand.
(g) The Company Shareholders, severally and not jointly (based on their Pro Rata Share), agree to indemnify and hold harmless the executorsShareholders’ Representative (in his or her capacity as such) for and from any Loss or Liability he or she may incur or be subject to as a result of his duties hereunder or any of his actions or inactions as such, heirs, legal representatives and successors of each Seller and each Ownerexcept as may result from the Shareholders’ Representative’s actions that would constitute fraud or willful misconduct.
(h) The Shareholders’ Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any references in Company Shareholder shall otherwise exist against the Shareholders’ Representative. The Shareholders’ Representative shall not be liable to any Company Shareholder relating to the performance of the Shareholders’ Representative’s duties or exercise of any rights under this Agreement to a Seller for any errors in judgment, negligence, oversight, breach of duty or an Owner will mean and include the successors otherwise except to the rights 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 actual fraud or were taken or not taken in bad faith. The Shareholders’ Representative shall be indemnified and held harmless by the Company Shareholders 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 Sellers and fact that the Owners hereunder, whether Shareholders’ Representative was acting as the Shareholders’ Representative pursuant to testamentary dispositionthis 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 actual 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 the Shareholders’ Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter. The Shareholders’ Representative, solely in his capacity as such, shall not be liable to Parent or any Affiliate of Parent by reason of this Agreement or the performance of the Shareholders’ Representative’s duties hereunder or otherwise. The foregoing indemnities will survive the Closing, the laws resignation or removal of descent and distribution Shareholders’ Representative or otherwise.the termination of this Agreement. 77
Appears in 1 contract
Sources: Merger Agreement (Mountain Crest Acquisition Corp. III)
Shareholders’ Representative. (a) In order to efficiently administer (i) By the waiver execution and delivery of any condition to the obligations a Letter of the Sellers and the Owners to consummate the transactions contemplated herebyTransmittal, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 including counterparts hereof, each of the Sellers and each Owner Equity Holder hereby irrevocably constitutes and appoints a committee consisting of a designee of KRG and designates ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative the true and lawful agent and attorney-in-fact (the "REPRESENTATIVE")“Shareholder Representative”) of such Equity Holder with full powers of substitution to act in the name, place and stead of such Equity Holder with respect to the performance on behalf of such Equity Holder under the terms and provisions hereof and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Shareholder Representative shall deem necessary or appropriate in connection with any transaction contemplated hereunder, including the power to:
(i) act for such Equity Holder, if applicable, with respect to all indemnification matters referred to herein, including the right to compromise or settle any such claim on behalf of such Equity Holder;
(ii) act for such Equity Holder with respect to the General Escrow Amount and the Intellectual Property Escrow Amount;
(iii) act for such Equity Holder with respect to the Viastar Matter and the Viastar Funding Amount;
(iv) amend or waive any provision hereof (including any condition to Closing) in any manner that does not differentiate among any Equity Holder;
(v) employ, obtain and rely upon the advice of legal counsel, accountants and other professional advisors as the Shareholder Representative, in the sole discretion thereof, deems necessary or advisable in the performance of the duties of the Shareholder Representative;
(vi) act for such Equity Holder with respect to all Merger Consideration matters and all Merger Consideration adjustment matters referred to herein;
(vii) incur any expenses, liquidate and withhold assets received on behalf of such Equity Holder prior to their distribution to such Equity Holder to the extent of any amount that the Shareholder Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing bank account established for such purpose;
(viii) receive all notices, communications and deliveries hereunder on behalf of such Equity Holder; and
(ix) do or refrain from doing any further act or deed on behalf of such Equity Holder that the Shareholder Representative deems necessary or appropriate, in the sole discretion of the Shareholder Representative, relating to the subject matter hereof as fully and completely as such Equity Holder could do if personally present and acting and as though any reference to such Shareholder herein was a reference to the Shareholder Representative.
(b) The Sellers appointment of the Shareholder Representative shall be deemed coupled with an interest and the Owners hereby authorize the Representative (i) to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may shall be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereofirrevocable, and (iii) to take any other Person may conclusively and all additional absolutely rely, without inquiry, upon any action as is contemplated to be taken by or on behalf of the Sellers and Shareholder Representative as the Owners by the terms act of this Agreementeach Equity Holder in all matters referred to herein.
(c) In the event the Shareholder Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Shareholder Representative shall be the Person that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy KRG and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the sameappoint.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver of any condition to the obligations of the Sellers Each EAI Shareholder constitutes and the Owners to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇J▇▇▇ ▇▇▇▇▇▇ (the “Shareholders’ Representative”) as his, her or its representative and attorneyits true and lawful attorney in fact, with full power and authority in its name and on its behalf:
(i) to act on such EAI Shareholder’s behalf in the absolute discretion of Shareholders’ Representative with respect to all matters relating to this Closing Agreement, including execution and delivery of any amendment, supplement, or modification of this Closing Agreement and any waiver of any claim or right arising out of this Closing Agreement and to execute and deliver any other documents as required, in the determination of the Shareholders’ Representative, to effect the provisions herein;
(ii) to execute and deliver the Lock-inUp Agreement to be delivered by each such EAI Shareholder, and thereafter to undertake, agree to, execute and deliver any amendments to such Lock-fact Up Agreement as determined to be necessary in the discretion of the Shareholders’ Representative; and
(iii) in general, to do all things and to perform all acts, including executing and delivering all agreements, certificates, receipts, instructions, and other instruments contemplated by or deemed advisable by the "REPRESENTATIVE")Shareholders’ Representative to effectuate the provisions of this Section 6.09.
(b) The Sellers This appointment and grant of power and authority is coupled with an interest and is in consideration of the Owners hereby authorize the Representative (i) to take all action necessary mutual covenants made in connection with (aa) the waiver this Closing Agreement and is irrevocable and will not be terminated by any act of any condition EAI Shareholder or by operation of Law, whether by the death or incapacity of any EAI Shareholder or by the occurrence of any other event. Each EAI Shareholder hereby consents to the obligations taking of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated actions and the making of any decisions required or permitted to be taken or made by Shareholders’ Representative pursuant to this Section 6.09. Each EAI Shareholder agrees that Shareholders’ Representative shall have no obligation or on behalf liability to any Person for any action taken or omitted by Shareholders’ Representative in good faith, even if taken or omitted negligently, and each EAI Shareholder shall indemnify and hold harmless Shareholders’ Representative from, and shall pay to Shareholders’ Representative the amount of, or reimburse Shareholders’ Representative for, any Loss that Shareholders’ Representative may suffer, sustain, or become subject to as a result of the Sellers and the Owners by the terms of this Agreementany claim made or threatened against Shareholders’ Representative in his capacity as such.
(c) In The Company shall be entitled to rely upon any document or other paper delivered by Shareholders’ Representative as being authorized by EAI Shareholders and each EAI Shareholder, and the event that Company shall not be liable to any EAI Shareholder for any action taken or omitted to be taken by the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from Company based on such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreementreliance.
(d) All decisions and actions Until all obligations under this Closing Agreement shall have been discharged, EAI Shareholders who, immediately prior to the Closing, are entitled in the aggregate to receive more than fifty percent (50%) of the Exchange Shares, may, from time to time upon notice to the Company, appoint a new Shareholders’ Representative upon the death, incapacity, or resignation of Shareholders’ Representative. If, after the death, incapacity, or resignation of Shareholders’ Representative, a successor Shareholders’ Representative shall not have been appointed by EAI Shareholders within fifteen (15) Business Days after a request by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary dispositionCompany, the laws Company may appoint a Shareholders’ Representative from among the EAI Shareholders to fill any vacancy so created by notice of descent and distribution or otherwisesuch appointment to EAI Shareholders.
Appears in 1 contract
Sources: Closing Share Exchange Agreement (Recall Studios, Inc.)
Shareholders’ Representative. (ap) In order to efficiently administer (i) the waiver of any condition to the obligations of the Sellers The Sellers, by executing or approving this Agreement and the Owners to consummate the transactions contemplated hereby, irrevocably agree to appoint and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇constitute ▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative (and attorney-in-fact (the "REPRESENTATIVE").
(b) The Sellers and the Owners hereby authorize the Representative (i) to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Sellers and the Owners by the terms execution of this Agreement.
(c) In Agreement as the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Shareholders’ Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively hereby accept his appointment) for and on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each behalf of the Sellers as the true, exclusive and all lawful agent and attorney-in-fact for and on behalf of each such Seller to act: (i) as the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Shareholders’ Representative under this Agreement, except for fraud and to have the right, power and authority to perform all actions (or willful misconduct refrain from taking any actions) the Shareholders’ Representative shall deem necessary, appropriate or advisable in connection with, or related to, this Agreement and the transactions contemplated hereby; (ii) in the name, place and stead of each Seller (A) in connection with the Share Purchase and the transactions contemplated by this Agreement and in accordance with the terms and provisions of this Agreement, and (B) in any proceeding involving this Agreement, to do, or refrain from doing, all such further acts and things, necessary, appropriate or advisable in connection with any of the foregoing, including execute and deliver all such documents as the Shareholders’ Representative shall deem necessary or appropriate in connection with the Share Purchase, including this Agreement or agreeing to any modification or amendment of this Agreement in accordance with Section 9.10 of this Agreement and executing and delivering an agreement of such modification or amendment. Without derogating from the generality of the foregoing, as of the date hereof the Shareholders’ Representative shall have the right, power and authority to: (i) give and receive notices, consents and communications, executed by the Shareholders’ Representative;
, including where this Agreement expressly require an action or consent of the Shareholders' Representative; (ii) authorize delivery to Buyer Indemnitees of the applicable portion of the Aggregate Consideration or supplemental indemnification amounts, if any, in satisfaction of claims by Indemnified Parties, (iii) object to such deliveries, (iv) agree to, negotiate, defend, resolve, enter into settlements and compromises of, any suit, proceeding, claim or dispute under this Agreement on behalf of the provisions Sellers and comply with orders of courts and awards of arbitrators with respect to such claims, (v) agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Section 9.13 are independent Agreement, including termination of this Agreement, (vi) retain legal counsel, accountants, consultants, advisors and severableother experts, are irrevocable and incur any other reasonable expenses, in connection with all matters and things set forth or necessary with respect to this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby; and (vii) to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of any or all of the foregoing. The identity of the Shareholders’ Representative may be changed by the joint consent of the Sellers upon not less than fifteen (15) days’ prior written notice to all of the Parties. The Shareholders’ Representative may resign from his position by providing a 15-day prior written notice to the Sellers and in such case, or in the case of death, disability, or inability of the Shareholders’ Representative, the other Seller shall become the replacement Shareholders’ Representative and notify the Parties. 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 shall constitute notice to or from each of the Sellers. Any and all decisions, acts, consents or instructions made or given by the Shareholders’ Representative in connection with this Agreement shall constitute a decision of all the Sellers and shall be final, binding and conclusive upon each and every Seller, and Parent and Buyer shall be entitled to rely upon any such decision, act, consent or instruction of the Shareholders’ Representative. This power of attorney is coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseis irrevocable.
Appears in 1 contract
Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver of any condition to the obligations of the Sellers Each TARGET Shareholder constitutes and the Owners to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably appoints and designates M▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative and attorney-in-fact (the "REPRESENTATIVE").
(b) The Sellers and the Owners hereby authorize the Representative (i) to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Sellers and the Owners by the terms of this Agreement.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to (the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby“Shareholders’ Representative”) as its representative and its true and lawful attorney in fact, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers with full power and all of the Owners, authority in its name and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree thaton its behalf:
(i) to act on such TARGET Shareholder’s behalf in the Purchaser or ▇▇▇▇▇▇▇ will be able absolute discretion of Shareholders’ Representative with respect to rely conclusively on the instructions all matters relating to this Agreement, including execution and decisions of the Representative as to (aa) the settlement delivery of any claims amendment, supplement, or modification of this Agreement and any waiver of any claim or right arising out of Article 8 hereofthis Agreement and to execute and deliver any other documents as required, in the determination of the Shareholders’ Representative, to effect the provisions herein;
(ii) to execute and deliver the Lock-Up Agreement to be delivered by each such TARGET Shareholder, and thereafter to undertake, agree to, execute and deliver any amendments to such Lock-Up Agreement as determined to be necessary in the discretion of the Shareholders’ Representative; and
(iii) in general, to do all things and to perform all acts, including executing and delivering all agreements, certificates, receipts, instructions, and other instruments contemplated by or deemed advisable by the Shareholders’ Representative to effectuate the provisions of this Section 6.02.
(b) This appointment and grant of power and authority is coupled with an interest and is in consideration of the mutual covenants made in this Agreement and is irrevocable and will not be terminated by any act of any TARGET Shareholder or by operation of Law, whether by the death or incapacity of any TARGET Shareholder or by the occurrence of any other event. Each TARGET Shareholder hereby consents to the taking of any and all actions and the making of any decisions required or permitted to be taken or made by Shareholders’ Representative pursuant to this Section 6.02. Each TARGET Shareholder agrees that Shareholders’ Representative shall have no obligation or liability to any Person for any action taken or omitted by Shareholders’ Representative in good faith, even if taken or omitted negligently, and each TARGET Shareholder shall indemnify and hold harmless Shareholders’ Representative from, and shall pay to Shareholders’ Representative the amount of, or reimburse Shareholders’ Representative for, any Loss that Shareholders’ Representative may suffer, sustain, or become subject to as a result of any claim made or threatened against Shareholders’ Representative in his capacity as such.
(bbc) The Company shall be entitled to rely upon any document or other actions required paper delivered by Shareholders’ Representative as being authorized by TARGET Shareholders and each TARGET Shareholder, and the Company shall not be liable to any TARGET Shareholder for any action taken or omitted to be taken by the Company based on such reliance.
(d) Until all obligations under this Agreement shall have been discharged, TARGET Shareholders who, immediately prior to the Closing, are entitled in the aggregate to receive more than fifty percent (50%) of the Exchange Shares, may, from time to time upon notice to the Company, appoint a new Shareholders’ Representative hereunderupon the death, and no party hereunder will incapacity, or resignation of Shareholders’ Representative. If, after the death, incapacity, or resignation of Shareholders’ Representative, a successor Shareholders’ Representative shall not have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken been appointed by TARGET Shareholders within fifteen (15) Business Days after a request by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary dispositionCompany, the laws Company may appoint a Shareholders’ Representative from among the TARGET Shareholders to fill any vacancy so created by notice of descent and distribution or otherwisesuch appointment to TARGET Shareholders.
Appears in 1 contract
Sources: Share Exchange and Purchase Agreement (Pulse Evolution Group, Inc.)
Shareholders’ Representative. (a) In order to administer efficiently administer (i) the waiver of any condition to the rights and obligations of the Sellers Shareholders under this Agreement, the Shareholders hereby designate and the Owners to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇appoint ▇▇▇▇▇▇▇ ▇▇▇▇▇ as histhe Shareholders' Representative, her or its representative to serve as the Shareholders' agent and attorney-in-fact (for the "REPRESENTATIVE")limited purposes set forth in this Agreement.
(b) The Sellers Each of the Shareholders 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 Owners hereby authorize the Representative full power and authority on such Shareholder's behalf (i) to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated herebyby this Agreement, or (bbii) to disburse any funds received hereunder to the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereofShareholders, and (iii) to take execute and deliver on behalf of each Shareholder any amendment or waiver under this Agreement, and to agree to resolution of all Adjustments pursuant to Section 1.4 or 10, and of all Claims hereunder, (iv) to retain legal counsel and other professional services, at the expense of the Shareholders, in connection with the performance by the Shareholders' Representative of this Agreement, and (v) to do each and every act and exercise any and all additional action as is contemplated rights which such Shareholder or Shareholders are permitted or required to be taken by do or on behalf exercise under this Agreement and the other agreements, documents and certificates executed in connection herewith. Each of the Sellers Shareholders agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the Owners by consent of the terms Shareholders' Representative and shall survive the death, bankruptcy or other incapacity of this Agreementany Shareholder.
(c) Each of the Shareholders hereby agrees that any amendment or waiver under this Agreement, 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 Adjustment or Claim (including any action taken to object to, defend, compromise or agree to the payment of such Adjustment or Claim), shall be effective if approved in writing by the Shareholders' Representative and the holders of a majority of the Corporation's Stock (including any Corporation's Stock held by the Shareholders' Representative), or, in the case of any amendment or waiver made or given or action taken after the Closing, if so approved by persons who were the holders of a majority of the Corporation's Stock immediately prior to the Closing, and that each and every action so taken shall be binding and conclusive on every Shareholder, whether or not such Shareholder had notice of, or approved, such amendment or waiver.
(d) ▇▇▇▇▇▇▇ shall serve as the Shareholders' Representative until he resigns or is otherwise unable or unwilling to serve. In the event that the a Shareholders' Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such positionposition or is otherwise unable or unwilling to serve, the remaining Shareholders shall select, by the vote of the holders of a majority of the Owners will select another Corporation's Stock immediately prior to the Closing, a successor representative to fill each such vacancy vacancy, shall provide prompt written notice to United of such change and such substituted representative will shall then be irrevocably appointed and designated deemed to be the Shareholders' Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver of any condition to the obligations of the Sellers The Company Shareholders, by approving this Agreement and the Owners to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably appoints appoint Shareholder Representative Services LLC, a Colorado limited liability company, as the Shareholders’ Representative and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative their agent and attorney-in-fact for purposes of Article 9 and the Escrow Agreement, and consent 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 him under the Escrow Agreement (including, without limitation, the "REPRESENTATIVE"exercise of the power to authorize delivery to Parent of cash out of the Escrow Fund in satisfaction of claims by Parent). 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, take all actions necessary in his judgment for the accomplishment of the foregoing and hereby accepts his appointment as the Shareholders’ Representative for purposes of Article 9 and the Escrow Agreement. Parent shall be entitled to deal exclusively with the Shareholders’ Representative on all matters relating to Article 9 and the Escrow Agreement and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Company Shareholder by the Shareholders’ Representative, and on any other action taken or purported to be taken on behalf of any Company Shareholder by the Shareholders’ Representative, as fully binding upon such Company Shareholder. Each Effective Time Holder hereby agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Sellers and If the Owners hereby authorize the Shareholders’ Representative (i) shall resign, die, become disabled or otherwise be unable to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action fulfill his responsibilities as is contemplated to be taken by or on behalf agent of the Sellers Company Shareholders, then within 30 days after such resignation, death or disability, a majority-in-interest of the Effective Time Holders shall appoint a successor representative reasonably satisfactory to Parent. Any such successor shall become the “Shareholders’ Representative” for purposes of Article 9, the Escrow Agreement and the Owners by the terms of this AgreementSection 10.1.
(c) In A Shareholders’ Representative shall not be liable to the event that Effective Time Holders for any act done or omitted hereunder as Shareholders’ Representative except for gross negligence or willful misconduct. The Effective Time Holders shall indemnify each Shareholders’ Representative and hold each Shareholders’ Representative harmless against any loss, Liability or expense incurred and arising out of or in connection with the Representative diesacceptance or administration of such Shareholders’ Representative’s duties hereunder, becomes unable to perform his responsibilities hereunder or resigns from including the reasonable fees and expenses of any legal counsel retained by such positionShareholders’ Representative, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreementas set forth in Section 10.1(d) below.
(d) All decisions and actions The reasonable expenses incurred by the RepresentativeShareholders’ Representative while acting on behalf of the Company Shareholders under the authorization granted in this Section 10.1 shall be borne by the Effective Time Holders pro rata and shall be payable first out of the Shareholders’ Representative Funds and then out of the Escrow Fund; provided, includinghowever, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating that all payments to the waiver Shareholders’ Representative out of the Escrow Fund pursuant to this Section 10.1(d) shall not exceed the actual amount of any condition to earnings realized from the obligations investments of all or any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each portion of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the sameEscrow Fund.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Sources: Merger Agreement (Semtech Corp)
Shareholders’ Representative. (a) In order By executing and delivering a Letter of Transmittal or by voting in favor of the adoption of this Agreement, the approval of the principal terms of the LCV Transaction, and by virtue of the consummation of the LCV Transaction or participating in the LCV Transaction and receiving the benefits thereof, including the right to efficiently administer receive consideration payable in connection with the LCV Transaction, each LCV Shareholder, each holder of the LCV 2019 Notes and each holder of the LCV 2020 Warrants shall be deemed to have approved of the designation of and appointed, and hereby irrevocably designates and appoints Shareholder Representative Services LLC as to act solely in its capacity as the true and lawful attorney-in-fact, agent and representative of the LCV Shareholders, the holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants (the “Shareholders’ Representative”) after Closing for all purposes in connection with this Agreement and the agreements ancillary hereto with full power of substitution 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 hereby and the exercise of all rights and the performance of all obligations hereunder, including: (i) authorizing payments under or pursuant to this Agreement and authorizing the waiver disbursements thereof to the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants as contemplated by this Agreement; (ii) receiving and forwarding of notices and communications pursuant to this Agreement and accepting service of process; (iii) giving or agreeing to, on behalf of all the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants any and all consents, waivers and amendments deemed by the Shareholders’ Representative, in its reasonable and good faith discretion, to be necessary or appropriate under this Agreement and the execution or delivery of any condition documents that may be necessary or appropriate in connection therewith; and (iv) with respect to any and all matters arising under this Agreement, (A) disputing or refraining from disputing, on behalf of each LCV Shareholder, each holder of the LCV 2019 Notes and each holder of the LCV 2020 Warrants relative to any amounts to be received by the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants under this Agreement or any agreements contemplated hereby, or any claim made by Subversive under this Agreement, (B) negotiating and compromising, on behalf of each LCV Shareholder, each holder of the LCV 2019 Notes and each holder of the LCV 2020 Warrants any dispute that may arise under, and exercise or refrain from exercising any remedies available under, this Agreement, and (C) executing, on behalf of each LCV Shareholder, each holder of the LCV 2019 Notes and each holder of the LCV 2020 Warrants any settlement agreement, release or other document with respect to such dispute or remedy, except in each case with respect to a dispute between any LCV Shareholder, any holder of the LCV 2019 Notes and any holder of the LCV 2020 Warrants on the one hand and the Shareholders’ Representative on the other hand, provided that, in each case, the Shareholders’ Representative shall not take any action adverse to any LCV Shareholder, any holder of the LCV 2019 Notes and any holder of the LCV 2020 Warrants unless such action is also taken proportionately with respect to the obligations others.
(b) Each LCV Shareholder, each holder of the Sellers LCV 2019 Notes and each holder of the LCV 2020 Warrants hereby agrees that: (i) in all matters in which action by the Shareholders’ Representative is required or permitted, the Shareholders’ Representative is authorized to act on behalf of such LCV Shareholder, notwithstanding any dispute or disagreement among the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants, Subversive shall be entitled to rely on any and all action taken after Closing by the Shareholders’ Representative under this Agreement without any Liability to, or obligation to inquire of, any LCV Shareholder, any holder of the LCV 2019 Notes and any holder of the LCV 2020 Warrants notwithstanding any knowledge on the part of Subversive of any such dispute or disagreement; (ii) all decisions, actions, consents and instructions by the Shareholders’ Representative after Closing shall be binding upon all of the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants and no LCV Shareholder, no holder of the LCV 2019 Notes and no holder of the LCV 2020 Warrants shall have the right to object to, dissent from, protest or otherwise contest any such decision, action, consent or instruction; (iii) notice to the Shareholders’ Representative after Closing, delivered in the manner provided in Section 8.03, shall be deemed to be notice to each LCV Shareholder, each holder of the LCV 2019 Notes and each holder of the LCV 2020 Warrants for the purposes of this Agreement; (iv) the appointment of the Shareholders’ Representative is coupled with an interest and shall be irrevocable by such LCV Shareholder, such holder of the LCV 2019 Notes and such holder of the LCV 2020 Warrants in any manner or for any reason; and (v) in the event that the person or entity serving as the Shareholders’ Representative dies, becomes incapacitated, files for bankruptcy protection or otherwise becomes unable to serve or resigns as a representative of the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants, then the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants shall appoint a new Shareholders’ Representative. The Shareholders’ Representative may resign at any time.
(c) Each LCV Shareholder, each holder of the LCV 2019 Notes and each holder of the LCV 2020 Warrants hereby acknowledges and agrees that no Subversive Party shall have any Liability to any LCV Party with respect to, and the Owners LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants jointly and severally shall indemnify all Subversive Parties against, and agree to consummate hold the transactions contemplated herebySubversive Parties harmless from, any and all Losses incurred by such Subversive Parties arising out of any breach of this Section 8.14 by the Shareholders’ Representative or by any LCV Shareholder, any holder of the LCV 2019 Notes and any holder of the LCV 2020 Warrants or the designation, appointment or actions of the Shareholders’ Representative pursuant to the provisions hereof, including with respect to any (i) failure by the Shareholders’ Representative to deliver funds or other property received by the Shareholders’ Representative (on behalf of any LCV Shareholder, any holder of the LCV 2019 Notes and any holder of the LCV 2020 Warrants) or any other actions taken by the Shareholders’ Representative, and (ii) reliance by the defense and/or settlement of any claims for which Subversive Parties on, and actions taken by the Sellers or Subversive Parties in reliance on, the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereofinstructions of, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative and attorney-in-fact (the "REPRESENTATIVE").
(b) The Sellers and the Owners hereby authorize the Representative (i) to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller notice given by or any Owner to consummate the transactions contemplated hereby, other action taken or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Sellers and the Owners omitted by the terms of this Agreement.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this AgreementShareholders’ Representative.
(d) All decisions and actions The Shareholders’ Representative is hereby authorized to establish an account for the purposes of holding the Expense Fund (the “Expense Account”), which shall be funded by Subversive at the Closing in the amount of the Expense Fund. The Shareholders’ Representative may use the Expense Fund to pay or be reimbursed for any fees, costs, expenses or other obligations incurred by the Shareholders’ Representative pursuant to this Agreement and the agreements ancillary hereto acting in its capacity as such. The LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants will not receive any interest or earnings on the Expenses Account and irrevocably transfer and assign to the 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 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 the event of bankruptcy. For tax purposes, the Expense Fund shall be treated as having been received and voluntarily set aside by the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants at the time of Closing. The Parties agree that the Shareholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund. Without limiting the foregoing, each LCV Shareholder, each holder of the LCV 2019 Notes and each holder of the LCV 2020 Warrants shall, to the extent of its Pro Rata Share, indemnify and defend the Shareholders’ Representative and hold the Shareholders’ Representative harmless from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Shareholders’ Representative Costs”) 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 Cost is suffered or incurred; provided that, in the event that any such Shareholders’ Representative Cost is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Shareholders’ Representative, includingthe Shareholders’ Representative will reimburse the LCV Shareholders, without limitation, (i) any agreement between holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants the amount of such indemnified Shareholders’ Representative and the Purchaser or ▇▇▇▇▇▇▇ relating Cost to the waiver extent attributable to such gross negligence or willful misconduct. Any expense incurred by the Shareholders’ Representative in connection with the performance of any condition its duties under this Agreement shall not be the personal obligation of the Shareholders’ Representative but shall be payable by and attributable to the obligations LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants based on their respective Pro Rata Share. If not paid directly to the Shareholders’ Representative by the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners such Shareholders’ Representative Costs may be required to indemnify recovered by the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
Shareholders’ Representative from (i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on funds in the instructions Expense Fund and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actionsany Contingent Merger Consideration at such time as any such amounts would otherwise be distributable to the LCV Shareholders, decisions and instructions holders of the Representative will be conclusive LCV 2019 Notes and binding upon each holders of the Sellers and all LCV 2020 Warrants; provided, that while this section allows the Shareholders’ Representative to be paid from the aforementioned sources of funds, this does not relieve the LCV Shareholders, holders of the OwnersLCV 2019 Notes and holders of the LCV 2020 Warrants from their obligation to promptly pay such Shareholders’ Representative Costs as they are suffered or incurred, nor does it prevent the Shareholders’ Representative from seeking any remedies available to it at law or otherwise. The Shareholders’ Representative may also from time to time submit invoices to the LCV Shareholders, holders of the LCV 2019 Notes and no party hereto will have holders of the LCV 2020 Warrants covering such Shareholders’ Representative Costs, which shall be paid by the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants promptly following the receipt thereof based on their respective Pro Rata Share. Upon the request of any cause LCV Shareholder, any holder of action against the RepresentativeLCV 2019 Notes and any holder of the LCV 2020 Warrants subject to applicable confidentiality obligations, the Shareholders’ Representative shall provide such LCV Shareholder, such holder of the LCV 2019 Notes and such holder of the LCV 2020 Warrants with an accounting for all expenses and liabilities paid by the Shareholders’ Representative in his its capacity as a Representative, for any action taken, decision made such. The Expense Fund shall be retained in whole or instruction given in part by the Shareholders’ Representative for such time as the Shareholders’ Representative shall determine in its sole discretion. If the Shareholders’ Representative shall determine in its sole discretion to return all or any portion of the Expense Fund to the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants such amount shall be distributed to the Paying Agent for further distribution to the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants in accordance with their respective Pro Rata Share as set forth on the Payment Schedule. In no event will the Shareholders’ Representative be required to advance its own funds on behalf of the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Shareholders’ Representative under this Section 8.14. The foregoing indemnities will survive the Closing, the resignation or removal of the Shareholders’ Representative or the termination of this Agreement, except for fraud . The Shareholders’ Representative will incur no liability of any kind with respect to any action or willful misconduct omission by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have Shareholders’ Representative in connection with the transactions contemplated by Shareholders’ Representative’s services pursuant to this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, Agreement and any references agreements ancillary hereto, except in this Agreement to a Seller the event of liability directly resulting from the Shareholders’ Representative’s gross negligence or an Owner will mean and include the successors willful misconduct. The Shareholders’ Representative shall not be liable for any action or omission pursuant to the rights advice of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwisecounsel.
Appears in 1 contract
Sources: Transaction Agreement and Plan of Reorganization (TPCO Holding Corp.)
Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver By voting in favor of any condition or consenting to the obligations Merger or by surrendering or delivering to the Paying Agent or the Company (or its designee payroll service provider), as applicable, an executed Letter of Transmittal to the Paying Agent, in exchange for the consideration to be paid in accordance with this Agreement, each Company Holder irrevocably approves the depositing of the Sellers funds held in the Shareholders’ Representative Fund and the Owners to consummate the transactions contemplated herebyconstitution and appointment of, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably constitutes and appoints Shareholder Representative Services LLC as the sole, exclusive, true and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as hislawful agent, her or its representative and attorney-in-fact of all Company Holders and each of them (the "REPRESENTATIVE").“Shareholders’ Representative”) with respect to any and all matters relating to, arising out of, or in connection with, this Agreement, the Paying Agent Agreement or any agreements ancillary hereto, including for purposes of taking any action or omitting to take any action on behalf of each Company Holder hereunder to:
(b) The Sellers and the Owners hereby authorize the Representative (i) to take execute and deliver all action amendments, waivers, ancillary agreements, certificates and documents that the Shareholders’ Representative deems necessary or appropriate in connection with (aa) the waiver consummation of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated herebyby this Agreement or the Paying Agent Agreement, or in connection with any of the matters set forth in clauses (bbii) through (xi) of this Section 2.9(a);
(ii) following the Closing, amend any terms of this Agreement related to the Development Milestone Events and the associated payment amounts and timing thereof, Buyer’s obligation to develop and seek Marketing Approval of MT1621 and the Development Milestone Review Committee’s rights to information related to the Development Milestone Events;
(iii) receive funds, make payments of funds and give receipts for funds;
(iv) do or refrain from doing any further act or deed on behalf of the Company Holders that the Shareholders’ Representative deems necessary or appropriate in its discretion relating to the subject matter of this Agreement as fully and completely as the Company Holders could do if personally present;
(v) administer the defense and/or or settlement of any disputes regarding the Closing Cash Payment adjustment pursuant to Section 2.12 and agreeing to or negotiating the Final Closing Statement and Final Closing Cash Payment;
(vi) administer the defense or settlement of any disputes regarding any Contingent Payments pursuant to Section 2.13;
(vii) contest any claims for indemnification pursuant to Section 8.1, to deliver any Claim Dispute Notice pursuant to Section 8.4, and to administer the defense or settlement of any such claims for indemnification, and of any disputes with respect thereto;
(viii) give any written direction to the Paying Agent;
(ix) give or receive notices to be given or received by the Company Holders under this Agreement, or the Paying Agent Agreement (except to the extent that this Agreement, or the Paying Agent Agreement expressly contemplates that any such notice shall be given or received by each Company Holder individually);
(x) receive service of process in connection with any claims under this Agreement or the Paying Agent Agreement; and
(xi) take any other action that, pursuant to the express terms hereof, is to be (or which any Seller or Owner may be required to indemnify taken by) the Purchaser Indemnified Parties pursuant to Article 8 hereofShareholders’ Representative. All actions, notices, communications and (iii) to take any and all additional action as is contemplated to be taken determinations by or on behalf of the Sellers and the Owners Company Holders shall be given or made by the terms of this Agreement.
(c) In the event that the Shareholders’ Representative diesand all such actions, becomes unable to perform his responsibilities hereunder or resigns from such positionnotices, a majority of the Owners will select another representative to fill each such vacancy communications and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions determinations by the RepresentativeShareholders’ Representative shall conclusively be deemed to have been authorized by, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will shall be binding upon each upon, any of the Sellers and all of the OwnersCompany Holders, and no Seller or Owner will Company Holder shall have the right to object, dissent, protest or otherwise contest the same. Without limiting the rights and obligations of the Company, Buyer and Merger Sub under this Agreement, the Shareholders’ Representative shall be entitled to: (i) rely upon the Estimated Closing Statement, Allocation Schedule, the Transaction Expense Schedule, and the CoC Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Holder.
(b) The Shareholders’ Representative may resign at any time. If the Shareholders’ Representative resigns, dies or becomes legally incapacitated, then a majority of the Company Holders, based on their respective Pro Rata Percentages, shall promptly designate in writing to Buyer a single Person to fill the Shareholders’ Representative vacancy as the successor Shareholders’ Representative hereunder. If at any time there shall not be a Shareholders’ Representative or the Company Holders fail to designate a successor Shareholders’ Representative, then Buyer may have a court of competent jurisdiction appoint a Shareholders’ Representative hereunder. A majority of the Company Holders, based on their respective Pro Rata Percentages, may also replace the Person serving as the Shareholders’ Representative from time to time and for any reason upon at least ten (10) days’ prior written notice to Buyer.
(c) The Shareholders’ Representative shall act for the Company Holders on all of the matters set forth in this Agreement in the manner the Shareholders’ Representative reasonably believes to be in the best interest of the Company Holders. The Shareholders’ Representative is authorized to act on behalf of the Company Holders notwithstanding any dispute or disagreement among the Company Holders. In taking any actions as Shareholders’ Representative, the Shareholders’ Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any Person the Shareholders’ Representative reasonably believes to be authorized thereunto. The Shareholders’ Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against the Shareholders’ Representative. The Shareholders’ Representative will incur no liability of any kind with respect to any action or omission by the Shareholders’ Representative in connection with the Shareholders’ Representative’s services pursuant to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Shareholders’ Representative’s gross negligence or willful misconduct. The Shareholders’ Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Company Holders will indemnify, defend and hold harmless the Shareholders’ Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the 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 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 Holders 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 Holders, any such Representative Losses may be recovered by the Shareholders’ Representative from (i) the funds in the Shareholders’ Representative Fund and (ii) the Escrow Fund, any Development Milestone Payment or any Royalty Payment, in each case only at or after such time as remaining amounts would otherwise be distributable to the Company Holders; provided, that while this section allows the Shareholders’ Representative to be paid from the aforementioned sources of funds, this does not relieve the Company Holders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Shareholders’ Representative from 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 Company Holders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Holders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Shareholders’ Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Shareholders’ Representative or the termination of this Agreement. Except for this Agreement and the Shareholders’ Representative engagement letter, the Shareholders’ Representative has not entered into any Contract, arrangement or understanding with the Company or any Company Holder, and the Company Holders do not have any requirements, prerequisites or veto rights in connection with the Shareholders’ Representative’s fulfillment of its obligations or exercise of its rights under this Agreement other than as set forth in such engagement letter.
(d) The Shareholders’ Representative shall treat confidentially any nonpublic information disclosed to it pursuant to this Agreement and shall not use such nonpublic information other than in the performance of its duties as the Shareholders’ Representative. In addition, the Shareholders’ Representative shall not disclose any nonpublic information disclosed to it pursuant to this Agreement to anyone except as required by Law; provided that (i) the Shareholders’ Representative may disclose such nonpublic information to legal counsel and other advisors under an obligation of confidentiality and non-use in its capacity as such (for the purpose of advising the Company Holders on any information disclosed to such Shareholders’ Representative pursuant to this Agreement), (ii) the Shareholders’ Representative (or legal counsel or other advisor to whom information is disclosed pursuant to clause (i) above) may disclose such nonpublic information disclosed to the Shareholders’ Representative pursuant to this Agreement in any Action relating to this Agreement or the transactions contemplated hereby (or, in either case, discussion in preparation therefor) and (iii) the Shareholders’ Representative may disclose to employees, advisors, agents or consultants of the Shareholders’ Representative and to any Company Holder (in each case who have a need to know such information and who are subject to confidentiality obligations with respect thereto) any such nonpublic information disclosed to the Shareholders’ Representative.
(e) By their execution of this Agreement, each Buyer shall be entitled to rely on the authority of the Sellers Shareholders’ Representative as the agent, representative and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions attorney-in-fact of the Representative Company Holders for all purposes under this Agreement and shall have no Liability for any such reliance. No Company Holder may revoke the authority of the Shareholders’ Representative. Each Company Holder, by voting in favor of or consenting to the Merger or by surrendering or delivering a Certificate or an affidavit in lieu thereof to the Paying Agent or the Company (or its designee payroll service provider), as to (aa) the settlement applicable, along with an executed Letter of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunderTransmittal hereby ratifies and confirms, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for hereby agrees to ratify and confirm, any action taken by the Purchaser or ▇▇▇▇▇▇▇ Shareholders’ Representative in reliance upon the instructions or decisions exercise of the power-of-attorney granted to the Shareholders’ Representative pursuant to this Section 2.9, which power-of-attorney, being coupled with an interest, is irrevocable and shall survive the death, incapacity or incompetence of such Company Holder.
(f) At the Closing, Buyer shall pay the Shareholders’ Representative Fund Amount to the Shareholders’ Representative;, which shall be maintained by the Shareholders’ Representative in a segregated account (the aggregate amount of cash so held by the Shareholders’ Representative from time to time, the “Shareholders’ Representative Fund”). 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 the event of bankruptcy. The Company Holders shall not receive interest or other earnings on the Shareholders’ Representative Fund and the Company Holders irrevocably transfer and assign to the Shareholders’ Representative any ownership right that they may have in any interest that may accrue on funds held in the Shareholders’ Representative Fund. The Company Holders acknowledge that the Shareholders’ Representative is not providing any investment supervision, recommendations or advice. The Shareholders’ Representative shall have no responsibility or liability for any loss of principal of the Shareholders’ Representative Fund other than as a result of its bad faith, gross negligence or willful misconduct. For Tax purposes, the Shareholders’ Representative Fund shall be treated in accordance with Section 5.1(f). The Shareholders’ Representative shall be reimbursed for reasonable out-of-pocket expenses incurred in the performance of its duties (including the reasonable fees and expenses of counsel) under this Agreement from the Shareholders’ Representative Fund; provided that if the Shareholders’ Representative Fund is insufficient to pay such expenses, then the Shareholders’ Representative shall be reimbursed directly from the Company Holders on a several basis (and not a joint and several basis) according to their respective Pro Rata Percentages.
(g) Upon the determination of the Shareholders’ Representative that the Shareholders’ Representative Fund is to be distributed to the Company Holders, (i) the Shareholders’ Representative shall calculate the amount to be distributed to the Company Holders after (A) payment of all of the Shareholders’ Representative’s out-of-pocket expenses incurred in connection with its services as Shareholders’ Representative and (B) deduction of the Employer Tax Amount payable on or triggered by such payment of the portion of such amount to be paid to the Company Award Holders by the Surviving Corporation with the amount in clause (B) to be calculated iteratively, (ii) all actions, decisions and instructions deposit with the Paying Agent such portion of the Representative will be conclusive and binding upon each of resulting amount payable to the Sellers and all of Company Holders other than the OwnersCompany Award Holders, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) pay to the provisions Surviving Corporation such portion of this Section 9.13 are independent the resulting amount payable to the Company Award Holders plus the Employer Tax Amount calculated in clause (i)(B) above. The Paying Agent and severablethe Surviving Corporation, are irrevocable as applicable, shall make payments to the Company Holders pursuant to the Allocation Schedule, less any applicable Tax withholding required by applicable Law; provided, however, than such amounts payable to the Company Award Holders shall in no event be paid more than five years following the Closing Date. Any portion of the Shareholders’ Representative Fund that remains undeliverable or unclaimed after twelve (12) months of the initial delivery attempt (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity by Law) shall become, to the extent permitted by Law, including any abandoned property, escheat or similar Law, the property of Buyer, free and coupled with an clear of any claims or interest and will of any Person previously entitled thereto. The Shareholders’ Representative Fund shall not be enforceable notwithstanding available to Buyer to satisfy any rights or remedies that either Seller or any Owner may have claims in connection with this Agreement or the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwisehereby.
Appears in 1 contract
Shareholders’ Representative. (a) In order By virtue of the adoption of this Agreement, each Shareholder hereby initially appoints, as of the date hereof, the Principal Shareholder as the Shareholders’ Representative. The Shareholders’ Representative shall have full power and authority to efficiently administer take all actions under this Agreement and the Escrow Agreements that are to be taken by the Shareholders’ Representative. The Shareholders’ Representative shall take any and all actions which he, she or it believes are necessary or appropriate under this Agreement and the Escrow Agreements, including, without limitation, executing the Escrow Agreements as Shareholders’ Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreements by the Shareholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreements, making payments, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Shareholders’ Representative in connection with this Agreement or the Escrow Agreements, defending all claims arising pursuant to Section 2.6 (a “Working Capital Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent, Buyer and their respective agents regarding such claims, dealing with Parent, Buyer and the Escrow Agent under this Agreement, taking any and all other actions specified in or contemplated by this Agreement or the Escrow Agreements, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Without limiting the generality of the foregoing, the Shareholders’ Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreements and to consent to any amendment hereof or thereof in his, her or its capacity as Shareholders’ Representative.
(b) The Company, the Shareholders, Parent and Buyer each hereby authorizes the Shareholders’ Representative to:
(i) the waiver of any condition Receive all notices or documents given or to be given to Shareholders’ Representative pursuant hereto or to the obligations Escrow Agreements or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement or the Sellers Escrow Agreements;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement or the Owners to consummate Escrow Agreements and the transactions contemplated herebyhereby or thereby as the Shareholders’ Representative may in his or her sole discretion deem appropriate;
(iii) After the Closing, take such action as the Shareholders’ Representative may in his, her or its sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or Buyer contained in this Agreement or in any document delivered by Parent or Buyer pursuant hereto; (B) taking such other action as the Shareholders’ Representative is authorized to take under this Agreement or the Escrow Agreements; (C) receiving all documents or certificates and making all determinations, in their capacity as Shareholders’ Representative, required under this Agreement or the Escrow Agreements; and (iiD) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement and the Escrow Agreements, including, without limitation, the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties indemnification is sought pursuant to this Article 8 hereof, each of the Sellers IX and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative and attorney-in-fact (the "REPRESENTATIVE").
(b) The Sellers and the Owners hereby authorize the Representative (i) to take all action necessary in connection with (aa) the any waiver of any condition to the obligations obligation of any Seller Parent or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Sellers and the Owners by the terms of this AgreementBuyer.
(c) In the event that the The Shareholders’ Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating shall have no duties to the waiver of any condition Shareholders or liability to the obligations of any Seller or Owner Shareholders with respect to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Shareholders’ Representative in connection with the Escrow Agreements or this Agreement.
(d) The Shareholders’ Representative shall, if applicable, be indemnified by the Shareholders for and shall be held harmless against any loss, liability or expense incurred by the Shareholders’ Representative or any of his or her Affiliates and any of their respective partners, directors, officers, employees, agents, shareholders, consultants, attorneys, accountants, advisors, brokers, representatives or controlling persons, in each case relating to such Shareholders’ Representative’s conduct as Shareholders’ Representative, other than losses, liabilities or expenses resulting from such Shareholders’ Representative’s willful misconduct in connection with its performance under this Agreement and the Escrow Agreements. This indemnification shall survive the termination of this Agreement. The costs of such indemnification (including the costs and expenses of enforcing this right of indemnification) shall, when applicable, be paid by the Shareholders. The Shareholders’ Representative may, in all questions arising under this Agreement, except rely on the advice of counsel and for fraud anything done, omitted or willful misconduct suffered in good faith by the Representative;Shareholders’ Representative in accordance with such advice, the Shareholders’ Representative shall not be liable to the Shareholders or the Escrow Agent or any other person. In no event shall the Shareholders’ Representative be liable hereunder or in connection herewith for (i) any indirect, punitive, special or consequential damages, or (ii) any amounts other than those that are satisfied out of the Escrow Amount.
(iiie) The Shareholders’ Representative shall have reasonable access to information of and concerning any Working Capital Claim and/or any Indemnity Claim and which is in the possession, custody or control of Parent or Buyer or Company Group and the reasonable assistance of Parent’s, the Buyer’s and the Company Group’s officers and employees for purposes of performing the Shareholders’ Representative’s duties under this Agreement or the Escrow Agreements and exercising its rights under this Agreement and the Escrow Agreements, including for the purpose of evaluating any Indemnity Claim against the Indemnification Escrow Fund and any Working Capital Claim against the Working Capital Escrow Fund; provided that the Shareholders’ Representative shall treat confidentially and not, except in connection with enforcing its rights under this Agreement and the Escrow Agreements, disclose any nonpublic information from or concerning any Indemnity Claim or any Working Capital Claim to anyone (except to the Shareholders’ Representative’s attorneys, accountants or other advisers, to Shareholders and on a need-to-know basis to other individuals who agree to keep such information confidential).
(f) In the performance of its duties hereunder, the Shareholders’ Representative shall be entitled to (i) rely upon any document or instrument reasonably believed to be genuine, accurate as to content and signed by any Shareholder or any party hereunder and (ii) assume that any Person purporting to give any notice in accordance with the provisions hereof has been duly authorized to do so.
(g) Each Shareholder acknowledges that Parent and Buyer are relying and shall rely on the authority of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest the Shareholder granted hereunder and will be enforceable notwithstanding materially prejudiced if this authority is revoked. Each Shareholder hereby agrees that it shall indemnify, hold harmless, compensate and reimburse Parent and each other Parent/Buyer Indemnified Party for any rights or remedies that either Seller Losses suffered by Parent or any Owner may have in connection with other Parent/Buyer Indemnified Party as a result of a revocation by such Shareholder of the transactions contemplated by this Agreement; andauthority granted hereunder other than as provided for herein.
(ivh) Subject to Section 9.6(g), the provisions appointment of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each OwnerShareholders’ Representative hereunder is irrevocable, and any references action taken by the Shareholders’ Representative pursuant to the authority granted in this Agreement to a Seller or an Owner will mean Section 9.6 shall be effective and include absolutely binding as the successors to the rights action of the Sellers and Shareholders’ Representative under this Agreement or the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseEscrow Agreements.
Appears in 1 contract
Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver of any condition to the obligations of the Sellers and the Owners to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner Each Significant Shareholder hereby irrevocably makes, constitutes and appoints and designates ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as his, her or its representative exclusive agent and true and lawful attorney-in-fact (with full power of substitution to do any and all things and execute any and all documents which may be necessary, convenient or appropriate to facilitate the "REPRESENTATIVE").
(b) The Sellers and consummation of the Owners hereby authorize the Representative transactions contemplated by this Agreement, including but not limited to: (i) make all decisions relating to take the determination of the Actual Closing Date Working Capital Amount; (ii) make all action necessary in connection with decisions relating to the distribution of any amounts payable or distributable to the Sellers hereunder; (aaiii) execution and delivery, on behalf of Sellers, the Stock Escrow Agreement and Cash Escrow Agreement and any other document required by this Agreement; (iv) receipt of payments hereunder and under the Stock Escrow Agreement and the Cash Escrow Agreement and the disbursement thereof to the Sellers and others; (v) receipt and forwarding of notices and communications pursuant to this Agreement, the Stock Escrow Agreement and the Cash Escrow Agreement; (vi) administration of this Agreement, the Stock Escrow Agreement, and the Cash Escrow Agreement, including the resolution of any dispute or claim; (vii) the resolution, settlement, or compromise of any claim for indemnification asserted against Sellers pursuant to 5.1(a); (viii) asserting, on behalf of the Sellers, claims for indemnification under Section 5.1(b) and resolving, settling or compromising all such claims; (ix) consent or agree to any amendment to this Agreement, or waiver of any condition of its terms and conditions; and (x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the obligations consent of any Seller or other Person under any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Sellers and the Owners by the terms of this Agreement.
(c) circumstance. In the event that the Representative dies, becomes ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ is unwilling or unable to perform his responsibilities hereunder serve as Shareholders’ Representative, then each Significant Shareholder hereby irrevocably makes, constitutes and appoints R. ▇▇▇▇ ▇▇▇▇ as Shareholders’ Representative for all purposes of this Agreement. In the event that both ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and R. ▇▇▇▇ ▇▇▇▇ are unwilling or resigns from such positionunable to serve as Shareholders’ Representative, a majority of the Owners will select another representative to fill then each such vacancy Significant Shareholder hereby irrevocably makes, constitutes and such substituted representative will be irrevocably appointed and designated the appoints ▇▇▇▇ Friendly as Shareholders’ Representative for all purposes of this Agreement.
(db) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative Buyer and the Purchaser or ▇▇▇▇▇▇▇ relating to Escrow Agent shall be fully protected in dealing with the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Shareholders’ Representative under this Agreement, except for fraud or willful misconduct Agreement and may rely upon the authority of the Shareholders’ Representative to act as agent of the Sellers. Any payment by Buyer to the Representative;
(iii) Shareholders’ Representative under this Agreement shall be considered a payment by Buyer to the provisions Sellers. The appointment of this Section 9.13 are independent and severable, are irrevocable and the Shareholders’ Representative is coupled with an interest and will shall be enforceable notwithstanding irrevocable by any rights Seller in any manner and for any reason. This power of attorney shall not be affected by the disability or remedies that either Seller or incapacity of the principal pursuant to any Owner may have in connection with the transactions contemplated by this Agreement; andapplicable law.
(ivc) The Shareholders’ Representative acknowledges that the Shareholders’ Representative has carefully read and understands this Agreement and the form of Individual Seller Agreement to be entered into by the Minority Shareholders, hereby accepts such appointment and designation, and represents that he will act in his capacity as Shareholders’ Representative in strict compliance with and conformance to the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseAgreement.
Appears in 1 contract
Shareholders’ Representative. (a) In order to efficiently administer (i) By virtue of the waiver adoption and approval of this Agreement and approval of the Merger and/or acceptance of any condition consideration pursuant to this Agreement or by signing the obligations Shareholder Consent or the Letter of Transmittal and receiving the benefits thereof and without any further action of any of the Sellers Shareholders or the Company, the Shareholders have constituted, appointed and empowered and hereby do appoint Fortis Advisors LLC, a Delaware limited liability company, as the Owners to consummate Shareholders’ Representative, for the transactions contemplated herebybenefit of the Shareholders, and (ii) as the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative exclusive agent and attorney-in-fact under this Agreement, the Escrow Agreement and the Paying Agent Agreement to act on behalf of each Shareholder effective as of the Closing, in connection with and to facilitate the consummation of the transactions contemplated hereby, which shall include the power and authority to: (i) execute this Agreement, the "REPRESENTATIVE"Ancillary Agreements and other agreements, documents and certificates pursuant to such agreements, including all amendments to such agreements, and take all actions required or permitted to be taken under such agreements, (ii) authorize delivery to Parent of all or any portion of the Escrow Fund, in satisfaction of purchase price adjustment claims, indemnification claims or other claims contemplated by this Agreement or as provided in the Escrow Agreement or Paying Agent Agreement, (iii) negotiate, execute and deliver such waivers, consents and amendments as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; (iv) enforce and protect the rights and interests of the Shareholders 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 or the Ancillary Agreements 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 or the Ancillary Agreements for and on behalf of the Shareholders, including consenting to, compromising or settling any such claims, conducting negotiations with Parent, the Company and their respective Representatives regarding such claims, and, in connection therewith, to: (A) assert any claim or institute any action, proceeding or investigation; (B) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Parent, the Company or any other Person, or by any Governmental Entity against the Shareholders’ Representative and/or any of the Shareholders, and receive process on behalf of any or all Shareholders 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 or the Ancillary Agreements; (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; and (F) use the Expense Fund to satisfy any expenses incurred by the Shareholders’ Representative in connection with fulfilling its obligations hereunder from and after the Closing Date (including the fees and expenses of any Independent Auditor pursuant to Article III or Article X and any Transfer Taxes payable by the Shareholders pursuant to Article X); (v) refrain from enforcing any right of the Shareholders arising out of or under or in any manner relating to this Agreement; 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 or by the Shareholders unless such waiver is in writing signed by the waiving party or by the Shareholders’ Representative; (vi) 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 or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement; (vii) engage special counsel, accountants and other advisors and incur such other expenses on behalf of the Shareholders in connection with any matter arising under this Agreement; (viii) collect, hold and disburse the Expense Fund, in accordance with the terms of this Agreement or the Ancillary Agreements; and (ix) take or refrain from taking any or all of the foregoing actions and do or refrain from doing any further act or deed on behalf of the Shareholders relating to the subject matter of this Agreement, the Escrow Agreement and the Paying Agent Agreement which the Shareholders’ Representative deems necessary or appropriate in its sole discretion. Notwithstanding the foregoing, the Shareholders’ Representative shall have no obligation to act on behalf of the Shareholders, except as expressly provided herein, in the Escrow Agreement, in the Paying Agent Agreement and in the Shareholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Shareholders’ Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedules.
(b) The Sellers Without limiting the generality of the above, by virtue of the adoption and approval of this Agreement and approval of the Owners hereby authorize Merger or by signing the Representative (i) Shareholder Consent or the Letter of Transmittal and receiving the benefits thereof, including the right to take all action necessary receive the consideration payable in connection with (aa) the waiver Merger, each Shareholder grants unto the Shareholders’ Representative full power and authority to do and perform each and every act and thing as described above, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that the Shareholders’ Representative may lawfully do or cause to be done by virtue hereof. Each Shareholder further acknowledges and agrees that, upon execution of this Agreement, with respect to any delivery by the Shareholders’ Representative of any condition documents executed by the Shareholders’ Representative pursuant to the obligations of any Seller or any Owner to consummate the transactions contemplated herebythis Section 11.17, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may such Shareholder shall be bound by such documents as fully as if such Shareholder had executed and delivered such documents. No bond shall be required to indemnify of the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any Shareholders’ Representative. Any and all additional action as is contemplated to be actions taken by or the Shareholders’ Representative on behalf of the Sellers Shareholders shall be deemed to be facts ascertainable outside this Agreement and shall be binding on all of the Owners Shareholders and each Shareholder’s successors as if expressly confirmed and ratified in writing by each such Shareholder. The Shareholders shall cooperate with the terms Shareholders’ Representative and any accountants, attorneys or other agents whom the Shareholders’ Representative may retain to assist in carrying out the Shareholders’ Representative duties hereunder. The Parties acknowledge that the Shareholders’ Representative obligations under this Section 11.17 are solely as a representative of the Shareholders as set forth in this Agreement.
(c) Certain Shareholders have entered into an engagement agreement (the “Shareholders’ Representative Engagement Agreement”) with the Shareholders’ Representative to provide direction to the Shareholders’ Representative in connection with its services under this Agreement, the Escrow Agreement, the Paying Agent Agreement and the Shareholders’ Representative Engagement Agreement (such Shareholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Shareholders’ Representative shall be entitled to (a) receive reimbursement from the Shareholders for all expenses and charges incurred by the Shareholders’ Representative in connection with the performance of their duties and the fulfillment of their obligations under this Agreement, and (b) be indemnified by the Shareholders. Neither the Shareholders’ Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Shareholders’ Representative Group”) shall incur liability or responsibility whatsoever to any Shareholder by reason of any error in judgment or any act or omission performed or omitted hereunder or otherwise in connection with the acceptance or administration of the Shareholders’ Representative’s responsibilities hereunder, under the Escrow Agreement, under the Paying Agent Agreement or under the Shareholders’ Representative Engagement Agreement, excepting and only to the extent any such act or failure to act is finally judicially determined to constitute Fraud, gross negligence, bad faith or willful misconduct. Without limiting the generality of the foregoing, the Shareholders’ Representative shall be entitled to rely on the 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 Group to Liability to any Shareholder. Each Shareholder shall indemnify, defend and hold harmless, severally and not jointly, based on such Shareholder’s Pro Rata Portion, the Shareholders’ Representative Group from and against all losses, damages, liabilities, claims, obligations, fines, fees, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ and professionals’ fees and the amount of any judgment against them, of any nature whatsoever (including 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 acts or omissions of the Shareholders’ Representative hereunder , or otherwise arising out of or in connection with the acceptance or administration of the Shareholders’ Representative’s duties hereunder, under the Escrow Agreement, under the Paying Agent Agreement or under the Shareholders’ Representative Engagement Agreement (collectively, the “Shareholders’ Representative Expenses”); provided that, in the event that any such indemnified Shareholders’ Representative Expense is finally adjudicated to have been primarily caused by Fraud, gross negligence, bad faith or willful misconduct of the Shareholders’ Representative, the Shareholders’ Representative will reimburse the Shareholders the amount of such indemnified Shareholders’ Representative Expense attributable to such Fraud, gross negligence, bad faith or willful misconduct. Shareholders’ Representative Expenses may be recovered first, from the Expense Fund, second, from any distribution of the Escrow Amount and any other amounts otherwise distributable to the Shareholders at the time of distribution, and third, directly from the Shareholders. Without limiting the generality of the foregoing, the Shareholders’ Representative shall have the right to recover, at its sole discretion, from the Expense Fund, prior to any distribution to the Shareholders, any amounts to which they are entitled pursuant to the expense reimbursement and indemnification provisions of this Section 11.17(c). In the event that any amounts (individually or in the aggregate) to which the Shareholders’ Representative diesis entitled or is obligated to pay pursuant to the foregoing exceed the Expense Fund, becomes unable upon written notice from the Shareholders’ Representative to perform his responsibilities hereunder or resigns from the Shareholders as to the existence of such positiona deficiency, a majority each Shareholder shall promptly deliver to the Shareholders’ Representative full payment of such Shareholder’s Pro Rata Portion of the Owners will select another representative amount of such deficiency. The Shareholders acknowledge that the Shareholders’ Representative shall not be required to fill each such vacancy and such substituted representative will be irrevocably appointed and designated expend or risk its own funds or otherwise incur any financial liability in the Representative for all purposes exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement, the Paying Agent Agreement, the Shareholders’ Representative Engagement Agreement or the transactions contemplated hereby or thereby. 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 be entitled to: (i) rely upon the Allocation Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Shareholder or other party.
(d) All decisions Notwithstanding anything to the contrary contained in this Agreement, the Shareholders’ Representative shall establish such terms and actions by procedures for administering, investing and disbursing any amounts from the RepresentativeExpense Fund, includingas it may determine in its reasonable judgment to be necessary, without limitationadvisable or desirable to give effect to the provisions of this Agreement. Without limiting the generality of the foregoing, the following shall apply: (i) the Expense Fund shall be held by the Shareholders’ Representative in a segregated client account and shall be used for the purposes of paying directly or reimbursing the Shareholders’ Representative for any agreement between Shareholders’ Representative Expenses incurred pursuant to this Agreement, the Escrow Agreement, the Paying Agent Agreement or any Shareholders’ Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated herebyEngagement Agreement, or as otherwise determined by the Advisory Group; (ii) the defense Shareholders’ Representative is not providing any investment supervision, recommendations or settlement advice and shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its Fraud, gross negligence, bad faith or willful misconduct; (iii) as between the Shareholders and the Shareholders’ Representative, the Shareholders’ Representative is not acting as a withholding agent or in any claims for which similar capacity in connection with the Sellers Expense Fund and has no tax reporting or income distribution obligations; (iv) the Shareholders will not receive any interest on the Expense Fund and assign to the Shareholders’ Representative any such interest; (v) subject to Advisory Group approval, the Shareholders’ Representative may contribute funds to the Expense Fund from any consideration otherwise distributable to the Shareholders; and (vi) as soon as reasonably determined by the Shareholders’ Representative that the Expense Fund is no longer required to be withheld, the Shareholders’ Representative shall distribute the remaining Expense Fund (if any) to the Paying Agent on behalf of the Shareholders (other than the holders of Vested Company Stock Options) or the Owners may be required Surviving Corporation (in the case of holders of Vested Company Stock Options), as applicable, for further distribution to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the sameShareholders.
(e) By their execution The Shareholders’ Representative may resign at any time, and may be removed or replaced by the vote of Shareholders with a majority of the Pro Rata Portion of the Purchase Price. All of the indemnities and immunities granted to the Shareholders’ Representative Group under this Agreement shall survive the resignation or removal of the Shareholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement, each of the Sellers and Escrow Agreement or the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.P
Appears in 1 contract
Shareholders’ Representative. (a) In order Each Shareholder hereby irrevocably appoints Diamond Castle Partners IV, L.P. (the “Shareholders’ Representative”) as such Shareholder’s representative, attorney-in-fact and agent, with full power of substitution, and to efficiently administer act on behalf of such Shareholder in any amendment of or litigation or arbitration involving this Agreement and the Escrow Agreement and to do or refrain from doing all such further acts and things, and to execute and deliver all such documents, as such Shareholders’ Representative shall deem necessary or appropriate in conjunction with any of the transactions contemplated by this Agreement and the Escrow Agreement including, without limitation, the power:
(i) to take all action necessary or desirable in connection with the waiver of any condition to the obligations of the Sellers and the Owners Shareholders to consummate the transactions contemplated herebyby this Agreement;
(ii) to negotiate, execute and deliver (A) the Escrow Agreement (with all such modifications or changes thereto as to which the Shareholders’ Representative, in its sole discretion, shall have consented), and (iiB) all ancillary agreements, statements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to given in connection with the defense and/or consummation of the transactions contemplated by this Agreement and the Escrow Agreement (it being understood that such Shareholder shall execute and deliver any such documents which the Shareholders’ Representative agrees to execute);
(iii) to collect and receive any amounts due or paid for the benefit of such Shareholder under this Agreement and to disburse such amounts to such Shareholder in accordance with its respective Escrow Percentage;
(iv) to enforce and protect the rights and interests of such Shareholder arising out of or under or in any manner relating to this Agreement and the Escrow Agreement, and each other agreement, document, instrument or certificate referred to herein or therein or the transactions provided for herein or therein (including without limitation, in connection with any and all claims for indemnification brought by any indemnifying party under Article IX hereof);
(v) to enforce payment of amounts due to such Shareholder from the Escrow Funds and any other amounts payable to such Shareholder under this Agreement or the Escrow Agreement, in each case, on behalf of such Shareholder to the extent of such Shareholder’s Escrow Percentage, in the name of the Shareholders’ Representative or, if the Shareholders’ Representative so elects, in the names of such Shareholder;
(vi) to cause to be paid out of the Escrow Fund the full amount of any Losses arising out of the indemnification provisions set forth in Article IX hereof, or any amounts payable by such Shareholder to an indemnified party in respect of any compromise or settlement of any claim for indemnification under such Article IX agreed to by the Shareholders’ Representative in its sole discretion;
(vii) to refrain from enforcing any right of such Shareholder arising out of or under or in any manner relating to this Agreement or the Escrow Agreement;
(viii) to utilize the funds comprising the Escrow Amount to make any payment which is required pursuant to this Agreement or the Escrow Agreement;
(ix) to terminate this Agreement if the Shareholders are entitled to do so;
(x) to give and receive all notices and communications to be given or received under this Agreement and to receive service of process in connection with the any claims for under this Agreement, including service of process in connection with arbitration; and
(xi) to take all actions which under this Agreement may be taken by the Shareholders and to do or refrain from doing any further act or deed on behalf of the Shareholders which the Sellers Shareholders’ Representative deems necessary or appropriate in his sole discretion relating to the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each subject matter of the Sellers this Agreement as fully and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ completely as his, her or its representative and attorney-in-fact (the "REPRESENTATIVE")such Shareholder could do if personally present.
(b) The Sellers and the Owners hereby authorize the Shareholders’ Representative (i) to take all action necessary will not be liable for any act taken or omitted by it as permitted under this Agreement, except if such act is taken or omitted in connection with (aa) the waiver of bad faith or by intentional misconduct. The Shareholders’ Representative will also be fully protected in relying upon any condition to the obligations of any Seller written notice, demand, certificate or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated document that it in good faith believes to be taken by or on behalf of the Sellers and the Owners by the terms of this Agreementgenuine (including facsimiles thereof).
(c) The Shareholders’ Representative shall not be paid any fee for services to be rendered hereunder. All reasonable fees and expenses incurred by the Shareholders’ Representative in performing its duties hereunder or under the Escrow Agreement (including any fees and expenses of legal counsel retained by such Representative) shall be borne by the Securityholders (severally as to each Securityholder only and not jointly as to or with any other Securityholder) according to their respective Escrow Percentages; provided, that, to the extent practical, the Shareholders’ Representative shall cause Parent or the Escrow Agent, as applicable, to deduct such fees and expenses from the amounts otherwise distributable to the Securityholders. In particular and without limitation, the event Shareholders acknowledge that the sum of $250,000 is being deposited by Parent into an account designated by the Shareholders’ Representative diesin accordance with Section 2.8(b) hereof (the “Shareholders’ Representative Expense Amount”), becomes unable to perform his responsibilities hereunder or resigns be used for anticipated administrative expenses. At such time that the Shareholders’ Representative believes, in its sole and absolute discretion, that no additional administrative expenses will be incurred, the Shareholders’ Representative shall distribute any remaining funds from such positionthe Shareholders’ Representative Expense Amount to the Securityholders, a majority according to their respective Escrow Percentages. If the expenses of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated Shareholders’ Representative exceed the Shareholders’ Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitationExpense Amount, (i) such expenses shall be borne by the Securityholders (severally as to each Securityholder only and not jointly as to or with any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating other Securityholder) according to their respective Escrow Percentages immediately prior to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or Effective Time and (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all Shareholders hereby authorizes the Shareholders’ Representative to apply proceeds otherwise distributable to such Shareholder pursuant to the Escrow Agreement to satisfy any of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative such Shareholder’s obligations under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise10.2.
Appears in 1 contract
Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver of any condition to the obligations of the Sellers and the Owners to consummate By executing this Agreement or a Shareholder Joinder, consummating the transactions contemplated herebyby this Agreement, or participating in such transactions and receiving the benefits thereof, including the right to receive the consideration payable in connection with such transactions, each Shareholder irrevocably authorizes and designates the Representative as the representative and agent of and on behalf of such Shareholder, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers as such Shareholder’s true and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative and lawful attorney-in-fact fact, with full power and authority in such Shareholder’s name, for all purposes in connection with this Agreement and any agreements ancillary hereto, including: (i) accepting notices on behalf of the "REPRESENTATIVE")Shareholders under this Agreement and any Transaction Document; (ii) providing any consent, certificate, instrument, receipt or approval on behalf of all Shareholders under this Agreement, and making, enforcing or settling any claim under Articles 1, 5, 6, 7 on behalf of the Shareholders; and (iii) taking any and all other actions and doing any and all other things provided in, or contemplated by, this Agreement or any Transaction Document to be performed by the Shareholder (to the extent all of the other Shareholders are also required to perform) arising out of the transactions contemplated hereby or thereby as Representative, in its sole discretion, determines to be necessary, appropriate or desirable. - 58 - Notwithstanding the foregoing sentence, Representative may not (x) increase any liability or obligation of a Shareholder under this Agreement or any Transaction Document without the prior written consent of such Shareholder or (y) take any action (including, without limitation, executing and delivering any consent, certificate, instrument, receipt, or approval) in respect of a Shareholder that discriminates against that Shareholder relative to the effect of such action on the other Shareholders unless the affected Shareholder gives his, her, their, or its prior written consent; provided that for the avoidance of doubt, the Representative consenting to all or a portion of an indemnification claim under Article 7, or entering into a settlement agreement with respect thereto, in accordance with the procedures, limitations of liability and Representative authority set forth in this Agreement shall not be deemed to implicate the foregoing clause (y) of the previous sentence or require the prior written approval of such Shareholders pursuant to the previous sentence. The authorization of Representative is coupled with an interest and is in consideration of the mutual covenants in this Agreement and is irrevocable (unless a court of competent jurisdiction determines in a final, non-appealable judgment that Representative has engaged in willful misconduct or gross negligence in connection herewith, in which case that Shareholder may, upon written notice to Buyer and Representative, revoke the appointment) and will not be terminated by operation of law, whether by the death or incapacity of any Shareholder.
(b) The Sellers Representative shall act as joint agent for all of the Shareholders, shall have the authority to bind each such Shareholder in accordance with this Agreement and any agreements ancillary hereto, and the Owners hereby authorize Buyer may rely on such appointment and authority and on the actions taken, decisions made or instructions given by Representative unless and until Buyer receives written notice of the appointment of a successor chosen by the Shareholders, acting by two-thirds consent (determined based on the Shareholders who received at least two-thirds of the Closing Merger Consideration as allocated in accordance with Annex I), upon thirty (30) days’ prior written notice to the Buyer. The Representative may (i) to take all action necessary in connection with (aa) the waiver of resign at any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated herebytime, or (bbii) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken removed by or on behalf those Shareholders who received at least two-thirds of the Sellers Closing Merger Consideration as allocated in accordance with Annex I, in each case upon thirty (30) days’ prior written notice, whereupon the Shareholders who received at least two-thirds of the Closing Merger Consideration as allocated in accordance with Annex I shall appoint and designate a new Representative. Further, the Owners Representative shall be automatically removed (the “Automatic Removal”) upon a final non-appealable determination by a court of competent jurisdiction or upon entry into a final binding settlement that the terms Representative has committed gross negligence, willful misconduct or fraud in any action taken hereunder or under its engagement letter. Notwithstanding the first sentence of this AgreementSection 9.9(b), in the event of Automatic Removal, the Shareholders who are to receive a majority of the Closing Merger Consideration as allocated in accordance with Annex I shall appoint and designate a new Representative.
(c) In The Representative, in its capacity as the representative to the Shareholders and not in its capacity as a Shareholder of the Company, will incur no liability of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Representative’s gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. Each Shareholder shall jointly and severally indemnify and hold harmless Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement (as the Representative only) and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative dieswill reimburse the 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 Representative by the Shareholders, any such Representative Losses may be recovered by the Representative from (i) any Earnout at such time as any amounts thereof would otherwise be distributable to the Shareholders; (ii) the Escrow Amount; and (iii) the Contingency Escrow, but only after and to the extent that any remaining amount otherwise becomes unable distributable to perform his responsibilities hereunder the Shareholders; provided, that while this section allows the Representative to be paid from the aforementioned sources of funds, this does not relieve the Shareholders from their obligation to promptly pay such Representative Losses as they are suffered or resigns incurred, nor does it prevent the Representative from such position, a majority seeking any remedies available to it at law or otherwise. In no event will the Representative be required to advance its own funds on behalf of the Owners will select another representative Shareholders or otherwise. Notwithstanding anything in this Agreement to fill each such vacancy and such substituted representative will the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Shareholders set forth elsewhere in this Agreement are not intended to be irrevocably appointed and designated applicable to the indemnities provided to the Representative for all purposes under this Section 9.9(c). The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between Each Shareholder has authorized the Representative and to direct the Purchaser or ▇▇▇▇▇▇▇ relating Escrow Agent to distribute from time to time amounts from the Escrow Account any amounts owed to the waiver of any condition to Buyer once the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers definitive Closing Merger Consideration Certificate has been determined under Section 1.6 and all of the Owners, Disputed Items have been determined and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative settled under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.Section
Appears in 1 contract
Shareholders’ Representative. (a) In order to efficiently administer Each Shareholder constitutes and appoints the Shareholders’ Representative as its Representative and its true and lawful attorney in fact, with full power and authority in its name and on its behalf:
(i) to act on such Shareholders’ behalf in the absolute discretion of Shareholders’ Representative with respect to all matters relating to this Agreement, including execution and delivery of any amendment, supplement, or modification of this Agreement or any Transaction Document and any waiver of any condition to claim or right arising out of this Agreement or the obligations provision of the Sellers and the Owners to consummate the transactions contemplated hereby, and any consent or agreement hereunder; and
(ii) in general, to do all things and to perform all acts, including executing and delivering all agreements, certificates, receipts, instructions, and other instruments contemplated by or deemed advisable to effectuate the defense and/or settlement provisions of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative and attorney-in-fact (the "REPRESENTATIVE")this Section 6.05.
(b) The Sellers This appointment and grant of power and authority is coupled with an interest and is in consideration of the Owners hereby authorize the Representative (i) to take all action necessary mutual covenants made in connection with (aa) the waiver this Agreement and is irrevocable and will not be terminated by any act of any condition Shareholder or by operation of law, whether by the death or incapacity of any Shareholder or by the occurrence of any other event. Each Shareholder hereby consents to the obligations taking of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated actions and the making of any decisions required or permitted to be taken or made by Shareholders’ Representative pursuant to this Section 6.05. Each Shareholder agrees that Shareholders’ Representative shall have no obligation or on behalf liability to any Person for any action taken or omitted by Shareholders’ Representative in good faith, even if taken or omitted negligently, and each Shareholder shall indemnify and hold harmless Shareholders’ Representative from, and shall pay to Shareholders’ Representative the amount of, or reimburse Shareholders’ Representative for, any Loss that Shareholders’ Representative may suffer, sustain, or become subject to as a result of the Sellers and the Owners by the terms of this Agreementany claim made or threatened against Shareholders’ Representative in his capacity as such.
(c) In the event that the The Company shall be entitled to rely upon any document or other paper delivered by Shareholders’ Representative diesas being authorized by Shareholders, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser Company shall not be liable to any Shareholder for any action taken or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required omitted to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseCompany based on such reliance.
Appears in 1 contract
Shareholders’ Representative. (a) In order By voting in favor of the Merger, executing the Voting and Support Agreement or Support Agreement or, in the case of Company Option Holders and Company Restricted Stock Unit Holders, a Letter of Transmittal or participating in the conversion or cancellation, as applicable, of the Company’s Capital Stock, Common Options or Restricted Stock Units, each Equity Holder 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 efficiently administer (i) the waiver act solely and exclusively on behalf of any condition such Company Indemnifying Party with respect to the obligations 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 Sellers and the Owners to consummate Shareholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated hereby, and including 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 defense and/or settlement transactions contemplated hereby or amendments thereto that the Shareholders’ Representative deems necessary or appropriate;
(iv) to receive funds for the payment of expenses of such Company Indemnifying Party and apply such funds in payment for such expenses;
(v) to distribute any unused portion of the Reserve Account to the Company Indemnifying Parties in accordance with the terms of this Agreement;
(vi) to do or refrain from doing any further act or deed on behalf of such Company Indemnifying Party 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 such Company Indemnifying Party could do if personally present; and
(vii) to receive service of process in connection with any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative and attorney-in-fact (the "REPRESENTATIVE")under this Agreement.
(b) The Sellers appointment of the Shareholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Buyer, the Owners hereby authorize Merger Sub and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Shareholders’ Representative in all matters referred to herein. After the Closing, all notices required to be made or delivered by Buyer or the Merger Sub to the Company Indemnifying Party described above shall be made to the Shareholders’ Representative for the benefit of such Company Indemnifying Party and shall discharge in full all notice requirements of Buyer, any Buyer Indemnitee or the Merger Sub as applicable, to such Company Indemnifying Party with respect thereto. The Shareholders’ Representative shall act for the Company Indemnifying Parties on all of the matters 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 Sub, 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 or any agreements ancillary hereto, except that the Shareholders’ Representative shall be responsible for any damages directly resulting from the Shareholders’ Representative’s gross negligence or willful misconduct in the performance of its duties under this Agreement. 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. The Shareholders’ Representative shall be entitled to consult with counsel and shall not be liable for any action or omission pursuant to the advice of counsel. The Shareholders’ Representative will incur no liability of any kind with respect to any action or omission by the Shareholders’ Representative in connection with the Shareholders’ Representative’s services pursuant to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Shareholders’ Representative’s gross negligence or willful misconduct. By voting in favor of the Merger, executing the Voting and Support Agreement or Support Agreement or, in the case of Company Option Holders and Company Restricted Stock Unit Holders, a Letter of Transmittal or participating in the conversion or cancellation, as applicable, of the Company’s Capital Stock or Common Options or Restricted Stock Units, each Company Indemnifying Party agrees (on a several and not joint basis in accordance with his, her or its Pro Rata Portion) to indemnify, defend and hold harmless the Shareholders’ Representative, its agents and assigns from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of outside counsel and third party experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) 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 Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Shareholders’ Representative, the Shareholders’ Representative will reimburse the Company Indemnifying Parties 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 Indemnifying Parties, any such Representative Losses may be recovered by the Shareholders’ Representative from (i) to take all action necessary in connection with the Reserve Amount and (aaii) the waiver of any condition funds in the Escrow Fund but only at such time as remaining amounts would otherwise be distributable to the obligations Company Indemnifying Parties; provided, that while this section allows the Shareholders’ Representative to be paid from the aforementioned sources of funds, this does not relieve the Company Indemnifying Parties from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Shareholders’ Representative from seeking any Seller remedies available to it at law or any Owner to consummate otherwise. In no event will the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may Shareholders’ Representative be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or advance its own funds on behalf of the Sellers Company Indemnifying Parties or otherwise. The Company Indemnifying Parties acknowledge and agree that the Owners by foregoing indemnities will survive the terms resignation or removal of the Shareholders’ Representative or the termination of this Agreement.
(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 Sub 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 Shareholders’ Representative will have the right to be reimbursed from the Reserve Account solely for its out-of-pocket expenses incurred, in its capacity as such, pursuant to this Agreement but will not otherwise be separately compensated for its services hereunder other than pursuant to the terms of that certain Engagement Letter to be entered into by and among Shareholders’ Representative, the Company, and certain of the Company Indemnifying Parties. The Reserve Account will be used solely for the purpose of paying the Shareholders’ Representative’s expenses under this Section 11.13(d) and any amounts representing the indemnification obligations of the Company Indemnifying Parties to the Shareholders’ Representative under Section 11.13(b) above as if such obligations were a reimbursable expense. The Company Indemnifying Parties will not receive any interest or earnings on the Reserve Account and irrevocably transfer and assign to the 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 Reserve Account 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 the event of bankruptcy. Any amounts remaining in the Reserve Account on the Reserve Amount Release Date shall be released to the Paying Agent and Surviving Corporation for their payments to the Shareholders respectively. For tax purposes, the Reserve Amount will be treated as having been received and voluntarily set aside by the Company Indemnifying Parties (and, with respect to Company Option Holders and Company Restricted Stock Unit Holders, subject to applicable Tax withholding) at the time of Closing.
(e) In the event that the Shareholders’ Representative dies, becomes unable legally incapacitated, resigns (by providing Buyer a minimum of 10 day advance written notice), or is hereby removed by a vote of a majority in interest of the Company Indemnifying Parties from its position as Shareholders’ Representative, a successor Shareholders’ Representative shall be appointed in writing by a majority in interest of the Company Indemnifying Parties, such appointment to become effective upon the delivery of executed counterparts of such writing to Buyer, 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 his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for bound by all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severableAgreement applicable to the Shareholders’ Representative. Failing such appointment, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner Company Indemnifying Party may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement apply to a Seller or an Owner will mean and include court of competent jurisdiction for the successors appointment of a successor Shareholders’ Representative. If for any reason there is no Shareholders’ Representative at any time, all references herein to the rights of Shareholders’ Representative shall be deemed to refer to the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseCompany Indemnifying Parties.
Appears in 1 contract
Sources: Merger Agreement (MeetMe, Inc.)
Shareholders’ Representative. (a) In order Each Shareholder irrevocably appoints ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (“Shareholders Representative”) as such Shareholder’s attorney-in-fact and agent, with full power of substitution to efficiently administer act in the name, place and stead of such Shareholder with respect to the delivery of such Shareholder’s Shares to Parent in accordance with the terms and conditions of this Agreement and to act on behalf of such Shareholder in any litigation or arbitration involving this Agreement and to do or refrain from doing all such further acts and things, and to execute all such documents, as such Shareholders Representative shall deem necessary or appropriate in connection with any of the above transactions contemplated under this Agreement. Including, without limitation:
(i) To take all action necessary or desirable in connection with the waiver of any condition to the obligations of the Sellers and the Owners Shareholders to consummate the Merger and the other transactions contemplated hereby, and by this Agreement;
(ii) To receive, hold and deliver to Parent, the defense and/or settlement Company Stock Certificates accompanied by executed Letters of Transmittal and any other documents relating thereto on behalf of such Shareholder;
(iii) To execute and deliver all ancillary agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the Merger and the other transactions contemplated by this Agreement;
(iv) To receive funds and give receipt for funds including in respect of the Aggregate Merger Consideration, and any adjustments thereto, to distribute to Shareholders their respective share of the Aggregate Merger Consideration, and any adjustments thereto, and to withhold from such funds a contingency reserve for the matters referred to herein;
(v) To give and receive all notices and communications to be given or received under this Agreement and to receive service of process in connection with any claims for under this Agreement, including service of process in connection with arbitration; and
(vi) To take all actions which the Sellers or the Owners under this Agreement may be required taken by the Shareholders Representative and to indemnify do or refrain from doing any further act or deed on behalf of each Shareholder which Shareholders Representative deems necessary or appropriate in his sole and absolute discretion relating to the Purchaser Indemnified Parties pursuant to Article 8 hereof, each subject matter of the Sellers this Agreement as fully and each Owner hereby irrevocably appoints and designates completely as such Shareholder could do if personally present.
(b) If ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ dies or otherwise becomes incapacitated and unable to serve as Shareholders Representative, ▇▇▇▇▇▇ as his, her or its representative and attorney-in-fact (the "REPRESENTATIVE").
(b) The Sellers and the Owners hereby authorize the Representative (i) to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Sellers and the Owners by the terms of this Agreement.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇. ▇▇▇▇▇▇▇▇▇ relating shall become Shareholders Representative. The death or incapacity of any Shareholder shall not terminate the agency and power of attorney hereby granted to the waiver Shareholders Representative. The appointment of Shareholders Representative shall be deemed coupled with an interest and shall be irrevocable and Parent and any condition to other person may conclusively and absolutely rely, without inquiry, upon any action of Shareholders Representative, as the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each action of the Sellers and Shareholders in all of the Owners, and no Seller or Owner will have the right matters referred to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all herein. All actions, decisions and instructions of the Shareholders Representative will shall be conclusive and binding upon each of the Sellers and all of the Owners, Shareholders and no party hereto will Shareholder shall have any cause of action against the Representative, Shareholders Representative in his capacity role as a Representativesuch, except for any action taken, decision or omission made fraudulently or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;in bad faith with respect to such Shareholder.
(iiic) the provisions of this Section 9.13 are independent All reasonable out-of-pocket expenses and severable, are irrevocable fees (including fees payable to counsel and coupled other professionals including brokerage fees) incurred by Shareholders Representative in connection with an interest performing such function and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the Merger and the other transactions contemplated hereby and all payments, damages, costs, fees and expenses in connection with any claim by or other dispute with Parent or the Surviving Company under this Agreement; andAgreement shall be paid by Shareholders in proportion to their respective interests in the Shares and may be deducted by Shareholders Representative from any amounts otherwise payable to any Shareholder hereunder. Shareholder’s Representative may withhold from funds received on behalf of Shareholders prior to distribution of such funds to Shareholders any amount which Shareholders Representative deems necessary as a reserve for any such fees, expenses and claims, and as a reserve for any potential decrease to the Aggregate Merger Consideration pursuant hereto.
(ivd) Even though the provisions of Shareholders have joint and several obligations to Parent and Merger Sub hereunder, the Shareholders agree among themselves that any amounts to be paid to the Shareholders under this Section 9.13 will be binding upon Agreement following the executors, heirs, legal representatives and successors of each Seller and each Owner, Closing and any references in amounts owed by the Shareholders under this Agreement following the Closing shall be paid to a Seller or an Owner will mean and include borne by the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseShareholders proportionately in accordance with their Ownership Percentages.
Appears in 1 contract
Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver of any condition addition to the obligations of the Sellers other rights and the Owners to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative and attorney-in-fact (the "REPRESENTATIVE").
(b) The Sellers and the Owners hereby authorize the Representative (i) to take all action necessary in connection with (aa) the waiver of any condition authority granted to the obligations of any Seller or any Owner to consummate Shareholders’ Representative elsewhere in this Agreement and except as expressly provided herein, by participating in the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, execution and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Sellers and the Owners by the terms delivery of this Agreement.
(c) In Agreement and receiving the event that the Representative diesbenefits thereof, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have including the right to object, dissent, protest or otherwise contest receive the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have consideration payable in connection with the transactions contemplated by this Agreement; and
, each Company Shareholder (which, for the purpose of this Section 12.11, shall also mean each Company Shareholder) hereby irrevocably authorizes and appoints Shareholders’ Representative as agent, attorney-in-fact and representative to act for and on behalf of such Company Shareholder regarding any matter under this Agreement or relating to the transactions contemplated hereby, with full power of substitution to act in the name, place and stead of such Company Shareholder and to act on behalf of such Company Shareholder with respect to the transactions contemplated hereby, including in any amendment of or dispute, litigation or arbitration involving this Agreement and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Shareholders’ Representative shall determine to be necessary or appropriate in conjunction with any of the transactions contemplated by this Agreement. This power of attorney and all authority hereby conferred is coupled with an interest and is irrevocable and shall not terminate or otherwise be affected by the death, disability, incompetence, bankruptcy or insolvency of any Company Shareholder. Except as expressly provided herein, no Company Shareholder shall directly have the right to exercise any right hereunder, it being understood and agreed that all such rights shall only be permitted to be exercised by the Shareholders’ Representative on behalf of the Company Shareholders. Without limiting the generality of the foregoing, the Shareholders’ Representative has full power and authority, on behalf of each Company Shareholder and such Company Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Company Shareholders in connection herewith, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement, (iii) receive service of process in connection with any claims under this Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the provisions defense of Third-Party Claims, prosecute and defend claims for indemnification under ARTICLE XI and comply with orders of courts with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (viii) assert the attorney-client privilege on behalf of the Company Shareholders with respect to any communications that relate in any way to the transactions contemplated hereby, (ix) deliver to SPAC any and all Ancillary Agreements executed by the Company Shareholders and deposited with the Shareholders’ Representative, upon the Shareholders’ Representative’s determination that the conditions to Closing have been satisfied or waived and (x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative on behalf of the Company Shareholders in connection with this Agreement.
(b) Service by the Shareholders’ Representative shall be without compensation except for the reimbursement by the Company Shareholders of out-of-pocket expenses and indemnification specifically provided herein.
(c) Notwithstanding Section 12.11(a), if the Shareholders’ Representative believes that he or she requires further authorization or advice from any Company Shareholder on any matters concerning this Agreement or any other agreement contemplated hereby, the Shareholders’ Representative will be entitled, but not obligated, to seek such further authorization solely from such Company Shareholder.
(d) From and after the date hereof, but except as expressly provided herein, each of SPAC and the Company is entitled to deal exclusively with the Shareholders’ Representative on all matters relating to this Agreement and the transactions contemplated hereby. A decision, act, consent or instruction of the Shareholders’ Representative constitutes a decision of all the Company Shareholders in respect of this Agreement and the transactions contemplated hereby. Such decision, act, consent or instruction is final, binding and conclusive upon each Company Shareholder, and each of SPAC and the Company 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 Company Shareholder by the Shareholders’ Representative, and on any other decision, act, consent or instruction taken or purported to be taken on behalf of any Company Shareholder by the Shareholders’ Representative, as being fully binding upon such Person. Notices or communications to or from the Shareholders’ Representative will constitute notice to or from each Company Shareholder.
(e) The Shareholders’ Representative may resign at any time, and may appoint a new Shareholders’ Representative to act in his or her stead, and may be removed for any reason or no reason by the vote or written consent of the Company Shareholders holding a majority of the Company Ordinary Shares as of the date hereof; provided, however, in no event shall the Shareholders’ Representative be removed without the Company Shareholders holding a majority of the Company Ordinary Shares having first appointed a new Shareholders’ Representative who shall assume such duties immediately upon the removal of the Shareholders’ Representative. In the event of the death, incapacity, or removal of the Shareholders’ Representative, a new Shareholders’ Representative shall be appointed by the vote or written consent of the Company Shareholders holding a majority of the Company Ordinary Shares as of the date hereof and a copy of the written consent or minutes appointing such new Shareholders’ Representative shall be sent to SPAC, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by SPAC; provided that until such notice is received, SPAC and the Company shall be entitled to rely on the decisions and actions of the prior Shareholders’ Representative as described in this Section 9.13 12.11.
(f) The Shareholders’ Representative shall hold and be entitled to use the Shareholders’ Representative Fund, defined below, for the purposes of paying for, or reimbursing the Shareholders’ Representative for, any and all costs and expenses (including counsel and legal fees and expenses) incurred by the Shareholders’ Representative in connection with the protection, defense, enforcement or other exercise or fulfillment of any rights or obligations under this Agreement (collectively, the “Shareholders’ Representative Expenses”). The Shareholders’ Representative shall hold the Shareholders’ Representative Fund in a segregated bank account and shall not comingle it with any other funds (the “Representative Fund”). At such time as the Shareholders’ Representative deems appropriate, the Shareholders’ Representative shall distribute to the Company Shareholders (in accordance with their respective Pro Rata Portion) the remaining Shareholders’ Representative Fund. The Shareholders’ Representative will be binding promptly reimbursed by the Company Shareholders (based on their respective Pro Rata Portion) for Shareholders’ Representative Expenses not covered by the Shareholders’ Representative Fund upon demand.
(g) The Company Shareholders, severally and not jointly (based on their Pro Rata Portion), agree to indemnify and hold harmless the executorsShareholders’ Representative (in his or her capacity as such) for and from any Loss or Liability he or she may incur or be subject to as a result of his duties hereunder or any of his actions or inactions as such, heirs, legal representatives and successors of each Seller and each Ownerexcept as may result from the Shareholders’ Representative’s actions that would constitute fraud or willful misconduct.
(h) The Shareholders’ Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any references in Company Shareholder shall otherwise exist against the Shareholders’ Representative. The Shareholders’ Representative shall not be liable to any Company Shareholder relating to the performance of the Shareholders’ Representative’s duties or exercise of any rights under this Agreement to a Seller for any errors in judgment, negligence, oversight, breach of duty or an Owner will mean and include the successors otherwise except to the rights 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 actual fraud or were taken or not taken in bad faith. The Shareholders’ Representative shall be indemnified and held harmless by the Company Shareholders 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 Sellers and fact that the Owners hereunder, whether Shareholders’ Representative was acting as the Shareholders’ Representative pursuant to testamentary dispositionthis 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 actual 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 the Shareholders’ Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter. The Shareholders’ Representative, solely in his capacity as such, shall not be liable to SPAC or any Affiliate of SPAC by reason of this Agreement or the performance of the Shareholders’ Representative’s duties hereunder or otherwise. The foregoing indemnities will survive the Closing, the laws resignation or removal of descent and distribution the Shareholders’ Representative or otherwisethe termination of this Agreement.
Appears in 1 contract
Sources: Business Combination Agreement (DT Cloud Acquisition Corp)
Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver of any condition to the obligations Each of the Sellers and the Owners to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner Shareholders hereby irrevocably makes, constitutes and appoints Scott A. Schuster as his agent and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative entative and attorney-in-fact (the "REPRESENTATIVEShareholders' 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 Phoenix 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 Shareholders' Representative promptly shall forward a copy of such notice or process to each Shareholder ;
(b) The Sellers and Deliver at the Owners hereby authorize Closing the Representative (i) to take all action necessary certificates for the Shares of each Shareholder in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims exchange for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf his portion of the Sellers and the Owners by the terms of this Agreement.Exchange Consideration;
(c) In Sign and deliver to Phoenix at the event that the Representative dies, becomes unable to perform Closing a receipt for his responsibilities hereunder or resigns from such position, a majority portion of the Owners will select another representative Exchange Consideration and transmit the Exchange Consideration to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.Shareholder;
(d) All decisions Deliver to Phoenix at the Closing all certificates and actions documents to be delivered to Phoenix by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties Shareholders pursuant to Article 8 hereofthis Agreement, will be binding upon together with any other certificates and documents executed by each of Shareholder and deposited with the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.Shareholders' Representative for such purpose;
(e) By their execution 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, each of the Sellers Agreement and the Owners agree thattransactions contemplated hereby 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 Purchaser representations or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions warranties of the Representative as to (aa) the settlement of Phoenix contained in this Agreement or in any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken document delivered by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representativeit pursuant hereto;
(ii) all actions, decisions and instructions Waiving the fulfillment of any of the Representative will be conclusive and binding upon each of conditions precedent to the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the RepresentativeShareholders' 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 provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by Shareholders required under this Agreement; and
(ivv) All such other matters as the provisions Shareholders' Representative may deem necessary or appropriate to consummate this Agreement and the transactions contemplated hereby. The appointment of the Shareholders' Representative hereunder is irrevocable and is deemed coupled with an interest and any action taken by Shareholders' Representative pursuant to the authority granted in this Section 9.13 will 9.1 shall be effective and absolutely binding upon on each Shareholder notwithstanding any contrary action of or direction from a Shareholder. The death or incapacity of any Shareholder shall not terminate the executors, heirs, legal representatives prior authority and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights agency of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseShareholders' Representative.
Appears in 1 contract
Sources: Share Exchange Agreement (Phoenix International Industries Inc /Fl/)
Shareholders’ Representative. (a) In order to administer efficiently administer the transactions contemplated hereby, including (i) the waiver of any condition to the obligations of the Sellers and the Owners Shareholders to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners that may be required made by Purchaser following the Closing against the Escrow Fund (as defined in Section 8.2(a) below), and (iii) the preparation of all documentation and conduct of all matters relating to indemnify the Purchaser Indemnified Parties Tax Returns (as defined in Section 4.13 below) and computations of the Company and the Subsidiary pursuant to Article 8 hereofthe provisions of Section 6.11 below, each of the Sellers and each Owner Shareholders hereby irrevocably appoints and designates ▇designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as his, her or its their representative and attorney-in-fact (the "REPRESENTATIVEShareholders' Representative").
(b) The Sellers Each Shareholder irrevocably 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 Owners hereby authorize the Representative Shareholders, (i) to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner the Shareholders to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner that may be made by Purchaser following the Closing against the Escrow Fund, (ii) to give and receive all notices required to indemnify be given or received by the Shareholders under this Agreement or the Escrow Agreement, (iii) to authorize delivery to Purchaser Indemnified Parties pursuant of shares of Purchaser Common from the Escrow Fund in satisfaction of claims by Purchaser, to Article 8 hereofobject to such deliveries, to agree to negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and (iiiiv) to take any and all additional action necessary or appropriate in the judgment of the Shareholders' Representative for the accomplishment of the foregoing or as is contemplated to be taken by or on behalf of the Sellers and the Owners Shareholders by the terms of this Agreement and the Escrow Agreement.
(c) The agency of the Shareholders' Representative may be changed by the Shareholders from time to time upon not less than 30 days' prior written notice to Purchaser; provided that the Shareholders' Representative may not be removed unless holders of at least two-thirds in interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. In the event that the Shareholders' Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Shareholders holding, prior to Closing, a majority in interest of the Owners will Escrow Fund shall select another representative to fill each such vacancy and such substituted representative will shall be irrevocably appointed and designated deemed to be the Shareholders' Representative for all purposes of this AgreementAgreement and the documents delivered pursuant hereto. No bond shall be required of the Shareholders' Representative, and 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, including without limitation, (i) limitation any agreement between the Shareholders' Representative and the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or and/or settlement of any claims for which the Sellers or the Owners that may be required to indemnify made by Purchaser following the Purchaser Indemnified Parties pursuant to Article 8 hereofClosing against the Escrow Fund, will shall be binding upon each of the Sellers and all of the Owners, Shareholders and no Seller or Owner will Shareholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) By their such Shareholder's execution of this Agreement, each of the Sellers and the Owners agree Shareholder agrees that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will shall be able to rely conclusively on the instructions and decisions of the Shareholders' Representative as to (aa) the settlement of any claims arising out for indemnification of Purchaser and/or the Company pursuant to the Escrow Agreement or Article 8 hereof, VIII below or (bb) any other actions required or permitted to be taken by the Shareholders' Representative hereunder, and no party hereunder will shall have any cause of action against Purchaser to the extent that Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance has relied upon the instructions or decisions of the Shareholders' Representative;
(ii) all actions, decisions and instructions of the Shareholders' Representative will shall be conclusive and binding upon each of the Sellers and all of the Owners, Shareholders and no party hereto will Shareholder shall have any cause of action against the Representative, in his capacity as a Representative, Shareholders' Representative for any action taken, decision made or instruction given by the Shareholders' Representative under this Agreement, except for fraud or willful misconduct breach of this Agreement by the Shareholders' Representative;
(iii) notices or communications to or from the Shareholders' Representative shall constitute notice to or from each of the Shareholders for purposes of this Agreement and the Escrow Agreement;
(iv) the provisions of this Section 9.13 1.7 are independent and severable, are irrevocable and coupled with an interest and will shall be enforceable notwithstanding any rights or remedies that either Seller or any Owner Shareholder may have in connection with the transactions contemplated by this Agreement;
(v) remedies available at law for any breach of the provisions of this Section 1.7 are inadequate; therefore, Purchaser and the Company shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either Purchaser or the Company brings an action to enforce the provisions of this Section 1.7.
(vi) as between such Shareholder and the other Shareholders, the Shareholders' Representative 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, attorney, banker, broker, accountant or other expert and shall not be responsible for any loss occasioned by so acting;
(vii) 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;
(viii) in performing the functions specified in this Agreement and the Escrow Agreement, the Shareholders' Representative shall not be liable to any Shareholder in the absence of willful misconduct on the part of the Shareholders' Representative; and
(ivix) the provisions of this Section 9.13 will 1.7 shall be binding upon the executors, heirs, legal representatives representatives, personal representatives, successor trustees, and successors of each Seller and each OwnerShareholder, and any references in this Agreement to a Seller Shareholder or an Owner will the Shareholders shall mean and include the successors to the Shareholder's rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) All fees and expenses incurred by the Shareholders' Representative shall be paid out of amounts remaining in the Escrow Fund after satisfaction of all claims of Purchaser against such fund. Upon application by the Shareholders' Representative to the Escrow Agent and Purchaser prior to the satisfaction of all claims of Purchaser against the Escrow Fund, Purchaser may in its sole and absolute discretion authorize the Escrow Agent to release a portion of the Escrow Fund to the Shareholders' Representative in reimbursement of fees and expenses incurred prior to such time. In making such payment, any shares of Purchaser Common to be distributed from the Escrow Fund shall be valued at the closing price of the Purchaser Common on the Nasdaq National Market on the day of distribution. Nothing in this Section 1.7(f) shall limit the obligations of the Shareholders under Section 1.7(e)(vii). In carrying out his functions under this Agreement, the Shareholders' Representative shall be permitted, in his discretion, to solicit from each of the Shareholders an advancement of funds in an amount sufficient to cover the anticipated expense associated with any necessary or appropriate act hereunder, and each Shareholder, consistent with such Shareholder's obligations pursuant to Section 1.7(e)(vii) above, shall comply with such request.
Appears in 1 contract
Sources: Share Purchase Agreement (Incyte Pharmaceuticals Inc)
Shareholders’ Representative. (a) In order to efficiently administer (i) the waiver of any condition to the obligations of the Sellers Cirronet and the Owners to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as hishereby appoint the Shareholders’ Representative, her or its representative and attorney-in-fact (the "REPRESENTATIVE").
(b) The Sellers and the Owners Shareholders’ Representative hereby authorize accepts such appointment, as the Representative (i) to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf representative of the Sellers Cirronet Shareholders, the Cirronet Optionholders and the Owners by the terms of this Agreement.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating for the limited purposes set forth herein, in the Letter of Transmittal, the Representative Appointment, the Earnout Agreement, the Registration Rights Agreement and the Parent Promissory Note. The parties hereto agree and acknowledge that (i) the Shareholders’ Representative’s power and authority to perform the waiver duties and exercise the rights of any condition to the obligations Shareholders’ Representative as contemplated by this Agreement (which shall include those matters set forth in the Letter of any Seller or Owner to consummate Transmittal and the transaction contemplated herebyRepresentative Appointment), or the Earnout Agreement, the Registration Rights Agreement and the Parent Promissory Note are an integral part of this Agreement and have been bargained for by Parent and Cirronet; and (ii) the defense or settlement of any claims for which the Sellers or the Owners may Shareholders’ Representative shall be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers vested with such power and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the sameauthority as contemplated hereby.
(eb) By their execution Each Cirronet Shareholder that executes and delivers a Letter of this Agreement, each Transmittal or accepts any portion of the Sellers Final Merger Consideration and the Owners agree that:
each Cirronet Optionholder that executes and delivers a Representative Appointment or accepts any Cirronet Assumed Option or Cirronet Exchanged Option (i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions any portion of the Representative as Earnout Consideration pursuant to (aathe Earnout Agreement) shall be consenting to the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required Shareholders’ Representative’s appointment and agreeing to be bound by all actions taken by the Shareholders’ Representative hereunderin his or her capacity as the Shareholders’ Representative as contemplated hereby and in the Earnout Agreement, Registration Rights Agreement and Parent Promissory Note, and no party hereunder will have neither Parent nor the Surviving Corporation shall be liable to any cause of action against the Purchaser Cirronet Shareholders, Cirronet Optionholder or ▇▇▇▇▇▇▇ for any action taken or omitted to be taken by Parent or the Purchaser Surviving Corporation in reliance on, or for any action taken or omitted to be taken by, the Shareholders’ Representative as contemplated hereby.
(c) Parent shall provide the Shareholders’ Representative, at Parent’s expense, with such secretarial, clerical, administrative and office support as the Shareholders’ Representative may reasonably request in order for the Shareholders’ Representative to perform the duties or exercise the rights of the Shareholders’ Representative as contemplated hereby, including, without limitation, handling mailings, payments and other distributions and correspondence with the Cirronet Shareholders, Cirronet Optionholders, ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;Parent, all as Shareholders’ Representative may reasonably request and direct.
(iid) The Shareholders’ Representative shall be entitled to reimbursement in the manner provided in this Section 1.10(d) for all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given reasonable out-of-pocket expenses incurred by the Shareholders’ Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) performance of the provisions duties or exercise of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers Shareholders’ Representative as contemplated hereby, including, without limitation, the reasonable fees of any legal counsel, accountants or other professional advisors retained by the Shareholders’ Representative in connection with performing such duties or exercising such rights (collectively, the “Expenses”). The Shareholders’ Representative may submit to Parent all invoices and similar documentation evidencing the Owners hereunderExpenses. On each date upon which an amount becomes payable by Parent under the Parent Promissory Note or the Earnout Agreement, whether Parent shall (i) deduct from such amount payable all Expenses for which the Shareholders’ Representative has not been reimbursed, (ii) pay the amount of such Expenses to the Shareholders’ Representative, and (iii) pay the remainder of such amount payable under the Parent Promissory Note or Earnout Agreement, as applicable, in accordance with the terms thereof. Any such payment to Shareholders’ Representative for reimbursement of Expenses shall be applied first to reduce the amount of any Earnout Consideration payable pursuant to testamentary dispositionthe Earnout Agreement, then to any accrued interest on the laws Parent Promissory Note outstanding on the date of descent and distribution or otherwise.such payment until such interest is reduced to zero, followed by a reduction in the principal amount thereof. Anything in this Section 1.10(d) to the contrary notwithstanding, Parent shall be obligated to reimburse Expenses only upon satisfaction of all the following conditions:
Appears in 1 contract
Shareholders’ Representative. Capital Alliance Ventures Inc. (asuch person and any successor or successors being the "SHAREHOLDERS' REPRESENTATIVE") In order to efficiently administer (i) shall act as the waiver of any condition to the obligations representative of the Sellers holders of Company Shares and the Owners shall be authorized to consummate the transactions contemplated herebyact on behalf of such holders, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative and attorney-in-fact (the "REPRESENTATIVE").
(b) The Sellers and the Owners hereby authorize the Representative (i) to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated actions required or permitted to be taken by the Shareholders' Representative under this Agreement or on behalf of the Sellers and the Owners by the terms of this Escrow Agreement.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or ▇▇▇▇▇▇▇ relating with respect to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims (including the settlement thereof) made by a Parent Indemnified Party for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties indemnification pursuant to this Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right with respect to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, or (bb) any other actions required to be taken by the Shareholders' Representative hereunder, and no party hereunder will have any cause of action against pursuant to the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions terms of the Representative;
Escrow Agreement (including, without limitation, the exercise of the power to (i) authorize the delivery of certain amounts in the Escrow Fund to a Parent Indemnified Party in satisfaction of claims by a Parent Indemnified Party, (ii) all actionsagree to, decisions negotiate, enter into settlements and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Ownerscompromises of, and no party hereto will have comply with orders of courts with respect to any cause of action against the Representative, in his capacity as a Representative, claims for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
indemnification (iii) take all actions necessary in the provisions judgment of this Section 9.13 are independent the Shareholders' Representative for the accomplishment of the foregoing), (iv) incur and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding reimbursed for any rights or remedies that either Seller or any Owner may have reasonable expenses incurred by the Shareholders' Representative in connection with the transactions contemplated by this Agreement; and
(iv) performance of its duties thereunder, which amounts shall be payable from the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each OwnerEscrow Fund after all distributions to Amalco have been made, and (v) reserve from the Escrow Amount to be distributed to the former shareholders of the Company a reasonable estimate of the expenses necessary to resolve any references in amounts that are the subject of or could become the subject of a dispute. In all matters relating to this Agreement Article 8, the Shareholders' Representative shall be the only party entitled to a Seller or an Owner will mean and include the successors to assert the rights of the Sellers holders of the Company Shares. The Parent Indemnified Parties shall be entitled to rely on all statements, representations and decisions of the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseShareholders' Representative.
Appears in 1 contract
Sources: Business Combination Agreement (Rainbow Technologies Inc)
Shareholders’ Representative. By the execution and delivery of the Agreement by the Shareholders, including counterparts thereof, each Shareholder irrevocably constitutes and appoints Brad ▇▇▇▇▇▇▇ ▇▇ the true and lawful agent and attorney-in-fact of such Shareholder ("Shareholders' Representative") with full powers of substitution to act in the name, place and stead of such Shareholder with the following powers:
(a) In order To receive, hold and deliver to efficiently administer (i) Buyer the waiver certificates or instruments evidencing the common stock of Company owned by Shareholders, accompanied by executed stock powers, signature guarantees, and any condition to the obligations other documents relating thereto on behalf of the Sellers Shareholders, including the power to endorse and present any such certificate or stock power or instruments on behalf of the Owners to consummate Shareholders;
(b) To execute and deliver all ancillary agreements, certificates, and documents which the Shareholders' Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated herebyby the terms and provisions of this Agreement;
(c) To receive and provide instructions for all payments and other deliveries made pursuant to this Agreement and other funds payable for and on behalf of the Shareholders;
(d) To act for the Shareholders with regard to all indemnification matters referred to in this Agreement including, without limitation, the power to consent to settlement of claims and the power to compromise any claim on behalf of each such Shareholder;
(e) To enter into the Escrow Agreement and to serve as the agent of the Shareholders with respect to all matters thereunder, and to terminate, amend or waive any provision of the Escrow Agreement and to pay any expenses reasonably incurred by the Escrow Agent or Shareholders' Representative in connection with the Escrow Agreement or matters arising thereunder;
(iif) To negotiate, terminate, amend or waive any provision of this Agreement and to incur expenses (including fees of attorneys and accountants) in any way relating to this transaction or any indemnification proceedings relating thereto and deduct such expenses from amounts otherwise payable to the defense and/or settlement Shareholders; and
(g) To do or refrain from doing any further act or deed on behalf of any claims for the Shareholders which the Sellers Shareholders' Representative deems necessary or appropriate in their sole discretion relating to the Owners subject matter of this Agreement as fully and completely as any Shareholder could do if personally present. The appointment of the Shareholders' Representative shall be deemed coupled with an interest and shall be irrevocable and the Buyer may conclusively and absolutely rely, without inquiry, upon any actions of the Shareholders' Representative evidenced by a writing as the act of the Shareholder in all matters referred to in this Agreement and the Escrow Agreement. With respect to each Shareholder who is a natural person, the authority conferred by such Shareholder shall not be revoked by such Shareholder's death or physical or mental disability. In the event Shareholders' Representative refuses to serve as Shareholders' Representative or service in such capacity is terminated for any reason, a successor Shareholders' Representative may be required to indemnify designated by a writing executed by the Purchaser Indemnified Parties pursuant to Article 8 hereof, each Shareholders who held a majority of the Sellers and each Owner hereby irrevocably appoints and designates common stock of Company listed on Exhibit 3.01(f) of the Disclosure Schedule. The Shareholders' Representative shall not be responsible to the Shareholders for any loss or damage the Shareholders may suffer by reason of the performance of the Shareholders' Representative of his duties under this Agreement, other than loss or damage arising from willful violation of law or gross negligence in the performance of his duties under this Agreement. BUYER: INFOCURE CORPORATION By: -------------------------------------------- Name:---------------------------------- Title:--------------------------------- ADDRESS FOR NOTICE: Address: 2970 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative and attorney-in-fact (the "REPRESENTATIVE")Suite 950 Atlanta, Georgia 30329 Telecopy No.
(b) The Sellers and the Owners hereby authorize the Representative (i) to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Sellers and the Owners by the terms of this Agreement.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Owners will select another representative to fill each such vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, (i) any agreement between the Representative and the Purchaser or : 404-▇▇▇-▇▇▇▇ Attention: Fred▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, will be binding upon each of the Sellers and all of the Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Sellers and the Owners agree that:
(i) the Purchaser or ▇. ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereofe, or (bb) any other actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that either Seller or any Owner may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to a Seller or an Owner will mean and include the successors to the rights of the Sellers and the Owners hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.Chief Executive Officer
Appears in 1 contract