Shareholders’ Representative. The parties have agreed that it is desirable to designate a representative to act on behalf of the shareholders of the Company immediately prior to the Second Effective Time (the “Shareholders”) for certain limited purposes, as specified herein (the “Shareholders’ Representative”). The Shareholders hereby designate Shareholder Representative Services LLC as the initial Shareholders’ Representative. The Shareholders’ Representative may resign at any time, and the Shareholders’ Representative may be removed by the vote of Persons which collectively owned more than fifty percent (50%) of the Company Ordinary Shares outstanding as of immediately prior to the Second Effective Time, voting together as a single class on an as converted basis to Company Ordinary Shares (the “Majority Holders”). In the event that a Shareholders’ Representative has resigned or been removed, a new Shareholders’ Representative shall be appointed by a vote of the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholders’ Representative. The Shareholders’ Representative shall have such powers and authority as are necessary to carry out the functions assigned to it under this Agreement; provided, however, that the Shareholders’ Representative shall have no obligation to act on behalf of the Shareholders except as expressly provided herein. Without limiting the generality of the foregoing, the Shareholders’ Representative shall have full power, authority and discretion to, after the Second Effective Time (i) negotiate and enter into amendments to this Agreement for and on behalf of the Shareholders, (ii) give and receive notices and other communications relating to this Agreement and the transactions contemplated hereby on behalf of the Shareholders, (iii) take or refrain from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of or related to this Agreement and the transactions contemplated hereby, in each case on behalf of the Shareholders and (iv) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing. The Shareholders’ Representative shall have no liability to TRTL, TRTL Parent, the Company or any Shareholder with respect to actions taken or omitted to be taken, except to the extent arising out of the Shareholders’ Representative’s fraud, bad faith, gross negligence or willful misconduct. The Shareholders’ Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and shall be entitled to conclusively rely on the opinions and advice of such Persons. The Shareholders’ Representative shall be entitled to reimbursement solely from the Shareholders for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Shareholders’ Representative. The Shareholders 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, 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 Shareholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Shareholders, any such Representative Losses may be recovered by the Shareholders’ Representative from the funds in the Expense Fund; provided, that while this section allows the Shareholders’ Representative to be paid from the Expense Fund, this does not relieve the Shareholders 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 Shareholders or otherwise. The Shareholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Shareholders’ Representative or the termination of this Agreement.
Appears in 1 contract
Sources: Business Combination Agreement (Terrapin 3 Acquisition Corp)
Shareholders’ Representative. The parties have agreed that it is desirable to designate a representative to act on behalf of the shareholders (a) By virtue of the Company immediately prior Shareholder Approval, and without any further act of any holder of Company Shares, the holders of Company Shares will be deemed to have appointed ▇▇▇▇ ▇. ▇▇▇▇▇▇, Inc. (previously defined as the Second Effective Time (the “Shareholders”) for certain limited purposes, as specified herein (the “Shareholders’ Representative”). The Shareholders hereby designate Shareholder Representative Services LLC ) as the initial Shareholders’ Representative. The Shareholders’ Representative may resign at any time, agent and the Shareholders’ Representative may be removed by the vote attorney-in-fact for each holder of Persons which collectively owned more than fifty percent (50%) of the Company Ordinary Shares outstanding as of immediately prior to the Second Effective Time, voting together as a single class on an as converted basis to Company Ordinary Shares (the “Majority Holders”). In the event that a Shareholders’ Representative has resigned or been removedexcept such shareholders, a new Shareholders’ Representative shall be appointed by a vote of the Majority Holdersif any, such appointment holding Appraisal Shares) for all matters relating to become effective upon the written acceptance thereof by the new Shareholders’ Representative. The Shareholders’ Representative shall have such powers and authority as are necessary to carry out the functions assigned to it under this Agreement; provided, however, that the Shareholders’ Representative shall have no obligation including to act on behalf of the Shareholders except as expressly provided herein. Without limiting the generality of the foregoing, the Shareholders’ Representative shall have full power, authority and discretion to, after the Second Effective Time (i) negotiate and enter into amendments to this Agreement for and on behalf of the Shareholders, (ii) give and receive notices and other communications relating communications; to this Agreement bind the holders of Company Shares to the terms of the Escrow Agreements; to authorize delivery of cash and the transactions contemplated hereby on behalf exercise of the ShareholdersEscrow Note from the Escrow Amount in satisfaction of claims by Parent or Surviving Corporation; to object to such deliveries, (iii) take or refrain from taking any actions (whether by negotiationto agree to, settlementnegotiate, litigation or otherwise) enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to resolve or settle all matters such claims; and disputes arising out of or related to this Agreement and the transactions contemplated hereby, in each case on behalf of the Shareholders and (iv) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing. .
(b) The Shareholders’ Representative shall have no liability may be changed by the holders of Company Shares from time to TRTL, TRTL time upon not less than 30 days’ prior written notice to Parent, provided that holders of a majority interest of the Company or Escrow Amount agree to such removal of ▇▇▇▇ ▇. ▇▇▇▇▇▇, Inc. and any Shareholder with respect successors thereto and to actions taken or omitted the identity of the substituted agent. A Shareholders’ Representative may resign at any time upon giving at least 30 days’ written notice to be takenthe holders of interest in the Escrow Account, except that no such resignation will become effective until the appointment of a successor Shareholders’ Representative. Upon resignation of a Shareholders’ Representative or a successor Shareholders’ Representative thereto, the holders of a majority interest of the Escrow Amount will agree on a successor Shareholders’ Representative thereto within 30 days after receiving such notice. If holders of a majority interest of the Escrow Amount fail to agree upon a successor Shareholders’ Representative within such time, the extent arising out resigning Shareholders’ Representative will have the right to appoint a successor Shareholders’ Representative, or if a Shareholders’ Representative is not designated within 45 days after receipt of the initial notice, Parent will designate a successor Shareholders’ Representative. Any successor Shareholders’ Representative will execute and deliver an instrument accepting such appointment and, without further acts, will be vested with all the rights, powers, and duties of the predecessor Shareholders’ Representative as if originally named as Shareholders’ Representative and thereafter the resigning Shareholders’ Representative will be discharged from any further duties and liability under this Agreement. No bond will be required of any Shareholders’ Representative, and no Shareholders’ Representative will receive compensation for his or her services. Notices or communications to or from the Shareholders’ Representative’s fraud, bad faith, gross negligence Representative will constitute notice to or willful misconduct. from each of the holders of interest of the Escrow Amounts for all matters relating to this Agreement.
(c) The Shareholders’ Representative shall will not be entitled to engage such counsel, experts and other agents and consultants liable for any act done or omitted hereunder as it shall deem necessary in connection with exercising its powers and performing its function hereunder and shall be entitled to conclusively rely on the opinions and advice of such Persons. The Shareholders’ Representative shall be entitled to reimbursement solely from the Shareholders for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Shareholders’ Representative. The Shareholders will indemnify, defend and hold harmless the Shareholders’ Representative from while acting in good faith. Holders of Company Shares on whose behalf the Escrow Amounts are contributed will severally indemnify the Shareholders’ Representative and hold the Shareholders’ Representative harmless against any all loss, liability, or expense incurred without bad faith or willful misconduct on the part of such Shareholders’ Representative and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the acceptance or administration of such Shareholders’ Representative’s execution 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 advance and reimbursement of costs and expenses incurred by or on behalf of the Shareholders’ Representative in the performance of this Agreementtheir duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative, in accordance with the terms of the Escrow Agreements.
(d) A decision, act, consent, or instruction of the Shareholders’ Representative relating to this Agreement will constitute a decision of the holders of Company Shares and will be final, binding, and conclusive upon each case as such Representative Loss is suffered holder. Parent, and all other persons entitled to indemnification under the Escrow Agreements or incurred; providedany other document or agreement entered into in connection herewith or therewith (the “Indemnified Persons”), that in the event that may rely upon any such decision, act, consent, or instruction of the Shareholders’ Representative Loss is finally adjudicated as being the decision, act, consent, or instruction of the holders of Company Shares. Parent and all other Indemnified Persons are hereby relieved from any liability to have been directly caused any person for any acts done by the gross negligence them in accordance with such decision, act, consent, or willful misconduct instruction of the Shareholders’ Representative. IN WITNESS WHEREOF, Parent, Sub, Company, the Major Shareholders, and the Shareholders’ Representative will reimburse the Shareholders the amount of such indemnified Representative Loss have signed or caused their respective duly authorized officers to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Shareholderssign this Agreement, any such Representative Losses may be recovered by the Shareholders’ Representative from the funds in the Expense Fund; provided, that while this section allows the Shareholders’ Representative to be paid from the Expense Fund, this does not relieve the Shareholders from their obligation to promptly pay such Representative Losses all 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 Shareholders or otherwisedate first written above. The Shareholders acknowledge FLOW INTERNATIONAL CORPORATION By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Its President ORANGE ACQUISITION CORPORATION By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Its President OMAX CORPORATION By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Its SHAREHOLDERS’ REPRESENTATIVE ▇▇▇▇ ▇. ▇▇▇▇▇▇, Inc. /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ (signature page continues) PUGET PARTNERS, L.P. Major Shareholder By: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Inc. Its General Partner By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Its President /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Major Shareholder /s/ ▇▇▇▇▇ ▇. ▇’▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇’▇▇▇▇▇▇ Major Shareholder /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇ Major Shareholder Dated as of September 9, 2008 Amended November 10, 2008 Amended and agree that the foregoing indemnities will survive the resignation or removal Restated [•], 2009 ARTICLE I THE MERGER
1.1 Effective Time of the Shareholders’ Representative or Merger 11 1.2 Closing 11 1.3 Effects of the termination of this Agreement.Merger 11
Appears in 1 contract
Sources: Agreement and Plan of Merger (Flow International Corp)
Shareholders’ Representative. The parties have agreed that it is desirable Shareholders hereby irrevocably appoint ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., a Shareholder, to designate a serve as representative to act on behalf of all of the shareholders Shareholders from and after the date of this Agreement (the "Shareholders' Representative"). EACH SHAREHOLDER HEREBY AUTHORIZES THE SHAREHOLDERS' REPRESENTATIVE TO ACT AS ATTORNEY-IN-FACT ON BEHALF OF SUCH SHAREHOLDER WITH RESPECT TO ANY ACT REQUIRED OR PERMITTED TO BE TAKEN BY SUCH SHAREHOLDER HEREUNDER (INCLUDING, WITHOUT LIMITATION, TO SPECIFY THE MANNER OF MAKING PAYMENT TO SUCH SHAREHOLDER HEREUNDER OR TO RECEIVE ANY FUNDS TO BE PAID BY OR ON BEHALF OF BUYER TO SUCH SHAREHOLDERS HEREUNDER). WITH RESPECT TO ANY DISPUTE THAT MAY ARISE HEREUNDER OR UNDER ANY RELATED AGREEMENT, EACH SHAREHOLDER AGREES THAT HE OR SHE MAY ACT ONLY THROUGH THE SHAREHOLDERS' REPRESENTATIVE. Any Party hereto shall be entitled to rely, and shall be fully protected in relying, upon all actions taken by the Shareholders' Representative. The Shareholders' Representative may not be changed without the consent of Purchaser, except as provided in the next sentence. In the event of the Company death of the Shareholder' Representative, the Shareholders shall promptly irrevocably appoint by a majority vote of the Shareholders (based on stock ownership immediately prior to the Second Effective Time Closing) one of the remaining Shareholders (the “Shareholders”or beneficial owners of Shareholders that are entities) for certain limited purposes, as specified herein (the “Shareholders’ Representative”). The Shareholders hereby designate Shareholder Representative Services LLC who is a natural person to act as the initial Shareholders’ ' Representative. The Shareholders’ Representative may resign at any time, and the Shareholders’ Representative may be removed by the vote of Persons which collectively owned more than fifty percent (50%) of the Company Ordinary Shares outstanding as of immediately prior to the Second Effective Time, voting together as a single class on an as converted basis to Company Ordinary Shares (the “Majority Holders”). In the event that a Shareholders’ Representative has resigned or been removed, a new Shareholders’ Representative shall be appointed by a vote of the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholders’ Representative. The Shareholders’ Representative shall have such powers and authority as are necessary to carry out the functions assigned to it under this Agreement; provided, however, that the Shareholders’ Representative shall have no obligation to act on behalf of the Shareholders except as expressly provided herein. Without limiting the generality of the foregoing, the Shareholders’ Representative shall have full power, authority and discretion to, after the Second Effective Time (i) negotiate and enter into amendments to this Agreement for and on behalf of the Shareholders, (ii) give and receive notices and other communications relating to this Agreement and the transactions contemplated hereby on behalf of the Shareholders, (iii) take or refrain from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of or related to this Agreement and the transactions contemplated hereby, in each case on behalf of the Shareholders and (iv) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing. The Shareholders’ Representative shall have no liability to TRTL, TRTL Parent, the Company or any Shareholder with respect to actions taken or omitted to be taken, except to the extent arising out of the Shareholders’ Representative’s fraud, bad faith, gross negligence or willful misconduct. The Shareholders’ Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and shall be entitled to conclusively rely on the opinions and advice of such Persons. The Shareholders’ Representative shall be entitled to reimbursement solely from the Shareholders for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Shareholders’ Representative. The Shareholders 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, 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 Shareholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Shareholders, any such Representative Losses may be recovered by the Shareholders’ Representative from the funds in the Expense Fund; provided, that while this section allows the Shareholders’ Representative to be paid from the Expense Fund, this does not relieve the Shareholders 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 Shareholders or otherwise. The Shareholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Shareholders’ Representative or the termination of this Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Gulf Island Fabrication Inc)
Shareholders’ Representative. The parties have agreed that it ▇▇▇▇ ▇▇ is desirable hereby appointed as agent and attorney-in-fact for each of the Shareholders, (i) to designate a representative to act enter into and deliver the Escrow Agreement on behalf of the shareholders of the Company immediately prior to the Second Effective Time (the “Shareholders”) for certain limited purposes, as specified herein (the “Shareholders’ Representative”). The Shareholders hereby designate Shareholder Representative Services LLC as the initial Shareholders’ Representative. The Shareholders’ Representative may resign at any time, and the Shareholders’ Representative may be removed by the vote of Persons which collectively owned more than fifty percent (50%) of the Company Ordinary Shares outstanding as of immediately prior to the Second Effective Time, voting together as a single class on an as converted basis to Company Ordinary Shares (the “Majority Holders”). In the event that a Shareholders’ Representative has resigned or been removed, a new Shareholders’ Representative shall be appointed by a vote of the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholders’ Representative. The Shareholders’ Representative shall have such powers and authority as are necessary to carry out the functions assigned to it under this Agreement; provided, however, that the Shareholders’ Representative shall have no obligation to act on behalf of the Shareholders except as expressly provided herein. Without limiting the generality of the foregoing, the Shareholders’ Representative shall have full power, authority and discretion to, after the Second Effective Time (i) negotiate and enter into amendments to this Agreement for and on behalf each of the Shareholders, (ii) give and receive notices and other communications relating to this Agreement and authorize or object to delivery to the transactions contemplated hereby on behalf Purchaser of the ShareholdersEscrow Fund, or any portion thereof, in satisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow Agreement, and (iii) take or refrain from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of or related to this Agreement and the transactions contemplated hereby, in each case on behalf of the Shareholders and (iv) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing. The Such agency may be changed by the each of the Shareholders from time to time upon no less than twenty (20) days prior written notice to the Purchaser Parties and, if after the Closing, the Purchaser, provided, however, that the Shareholders’ Representative may not be removed unless holders of at least 51% of all of the Company Shares on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement agree to such removal. Any vacancy in the position of Shareholders’ Representative may be filled by approval of the holders of at least 51% of all of the Company Shares on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement. Any removal or change of the Shareholders’ Representative shall have no liability to TRTL, TRTL Parent, the Company or any Shareholder with respect to actions taken or omitted to not be taken, except effective until written notice is delivered to the extent arising out Parent or Purchaser, as applicable. No bond shall be required of the Shareholders’ Representative’s fraud, bad faith, gross negligence and the Shareholders’ Representative shall not receive any compensation for his services. Notices or willful misconductcommunications to or from the Shareholders’ Representative shall constitute notice to or from the Shareholders. The Shareholders’ Representative shall not be entitled to engage such counsel, experts liable for any act done or omitted hereunder while acting in good faith and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and shall be entitled to conclusively rely on the opinions and advice of such Persons. The Shareholders’ Representative shall be entitled to reimbursement solely from the Shareholders for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Shareholders’ Representative. The Shareholders 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, 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 exercise of reasonable business judgment. A decision, act, consent or willful misconduct of the Shareholders’ Representative, the Shareholders’ Representative will 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 Shareholders’ Representative by the Shareholders, any such Representative Losses may be recovered by the Shareholders’ Representative from the funds in the Expense Fund; provided, that while this section allows the Shareholders’ Representative to be paid from the Expense Fund, this does not relieve the Shareholders 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 Shareholders or otherwise. The Shareholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal instruction of the Shareholders’ Representative shall, for all purposes hereunder, constitute a decision, act, consent or instruction of all of the termination stockholders of this Agreementthe Company Group and shall be final, binding and conclusive upon each of the Shareholders.
Appears in 1 contract
Shareholders’ Representative. The parties have agreed that it Shareholders' Representative shall be solely responsible for distributing to each holder of shares of Common Stock, Cumulative Preferred Stock and Series A Preferred Stock such holder's pro rata share of Common Consideration, Cumulative Consideration and Series A Consideration (collectively, the "Merger Consideration"), respectively, in accordance with the number of shares of Common Stock, Cumulative Preferred Stock and Series A Preferred Stock owned by such holder immediately prior the Effective Time as set forth on Schedule 3.2. Shareholders' Representative shall distribute Merger Consideration to stockholders only upon receipt by Shareholders' Representative of such holder's stock certificate evidencing Series A Preferred Stock, Cumulative Preferred Stock or Common Stock, respectively. Shareholders' Representative shall forward all such certificates to the Company upon receipt. If the Shareholders' Representative fails or is desirable unable to designate a representative to act on behalf distribute all of the shareholders Merger Consideration received by it within 120 days of such receipt, it shall promptly return any remaining Merger Consideration to the Buyer Group. Buyer Group shall indemnify the Shareholders' Representative and the Shareholders against any legitimate claim by any person who held capital stock of the Company immediately prior to the Second Effective Time (the “Shareholders”) for certain limited purposes, as specified herein (the “Shareholders’ Representative”). The Shareholders hereby designate Shareholder Representative Services LLC as the initial Shareholders’ Representative. The Shareholders’ Representative may resign at any time, and the Shareholders’ Representative may be removed by the vote payment of Persons which collectively owned more than fifty percent (50%) of the Company Ordinary Shares outstanding as of immediately prior to the Second Effective Time, voting together as a single class on an as converted basis to Company Ordinary Shares (the “Majority Holders”). In the event that a Shareholders’ Representative has resigned or been removed, a new Shareholders’ Representative shall be appointed by a vote of the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholders’ Representative. The Shareholders’ Representative shall have such powers and authority as are necessary to carry out the functions assigned to it under this Agreementreturned Merger Consideration; provided, however, that the Shareholders’ Representative Buyer Group's indemnification obligation under this Section shall have no obligation to act on behalf of the Shareholders except as expressly provided herein. Without limiting the generality of the foregoing, the Shareholders’ Representative shall have full power, authority and discretion to, after the Second Effective Time (i) negotiate and enter into amendments to this Agreement for and on behalf of the Shareholders, (ii) give and receive notices and other communications relating to this Agreement and the transactions contemplated hereby on behalf of the Shareholders, (iii) take or refrain from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of or related to this Agreement and the transactions contemplated hereby, in each case on behalf of the Shareholders and (iv) take all actions necessary or appropriate not exceed in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing. The Shareholders’ Representative shall have no liability to TRTL, TRTL Parent, the Company or any Shareholder with respect to actions taken or omitted to be taken, except to the extent arising out of the Shareholders’ Representative’s fraud, bad faith, gross negligence or willful misconduct. The Shareholders’ Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and shall be entitled to conclusively rely on the opinions and advice of such Persons. The Shareholders’ Representative shall be entitled to reimbursement solely from the Shareholders for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Shareholders’ Representative. The Shareholders 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, 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 Shareholders aggregate the amount of such indemnified Representative Loss to returned Merger Consideration. No interest shall accrue or be payable on any Merger Consideration except as provided in the extent attributable to such gross negligence Note or willful misconductunder Delaware law. If not paid directly to Neither the Buyer Group, Surviving Corporation nor the Shareholders’ ' Representative shall be liable to any holder of shares of Common Stock, Cumulative Preferred Stock or Series A Preferred Stock for any Merger Consideration (or dividends or distributions with respect thereto) delivered to a public official as required by the Shareholdersany applicable abandoned property, any such Representative Losses may be recovered by the Shareholders’ Representative from the funds in the Expense Fund; provided, that while this section allows the Shareholders’ Representative to be paid from the Expense Fund, this does not relieve the Shareholders from their obligation to promptly pay such Representative Losses as they are suffered escheat 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 Shareholders or otherwise. The Shareholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Shareholders’ Representative or the termination of this Agreementsimilar law.
Appears in 1 contract
Sources: Merger Agreement (Playcore Inc)
Shareholders’ Representative. The parties have agreed that it is desirable to designate a representative to act on behalf (a) By virtue of the shareholders adoption of this Agreement and the approval of the Company immediately prior to Acquisition by the Second Effective Time Shareholders, the Shareholders hereby designate and appoint MDS Capital Corp. as their representative for the purposes set forth in this Section 1.3 (the “"Shareholders”) for certain limited purposes, as specified herein (the “Shareholders’ ' Representative”"). By signing this Agreement, MDS Capital Corp. accepts the foregoing designation and appointment by the Shareholders as the Shareholders' Representative.
(b) The Shareholders hereby designate Shareholder Representative Services LLC as the initial Shareholders’ Representative. The Shareholders’ Representative may resign at any time, and authorize the Shareholders’ ' Representative may be removed by (A) to execute the vote of Persons which collectively owned more than fifty percent (50%) of the Company Ordinary Shares outstanding as of immediately prior to the Second Effective Time, voting together as a single class on an as converted basis to Company Ordinary Shares (the “Majority Holders”). In the event that a Shareholders’ Representative has resigned or been removed, a new Shareholders’ Representative shall be appointed by a vote of the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholders’ Representative. The Shareholders’ Representative shall have such powers and authority as are necessary to carry out the functions assigned to it under this Agreement; provided, however, that the Shareholders’ Representative shall have no obligation to act Escrow Agreement on behalf of the Shareholders except as expressly provided herein. Without limiting the generality Shareholders' Representative; (B) to act as representative of the foregoingShareholders in connection with any and all matters arising under the Escrow Agreement; (C) to take all action necessary in connection with the defense and/or settlement of any claims for which the Shareholders may be required to indemnify Cubist, the Acquisition Sub and/or the Company pursuant to the Escrow Agreement or the Shareholders’ Representative shall have full power' Agreement; (D) to give and receive, authority and discretion to, after the Second Effective Time (i) negotiate and enter into amendments to this Agreement for and on behalf of the Shareholders, (ii) give and receive all notices and other communications relating required to be given under this Agreement, the Shareholders' Agreement and the transactions Escrow Agreement; and (E) to take any and all additional action as is required, contemplated hereby on behalf of or permitted to be taken by the Shareholders, (iii) take or refrain from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of or related to this Agreement and the transactions contemplated hereby, in each case ' Representative on behalf of the Shareholders by the terms of this Agreement, the Shareholders' Agreement, the Escrow Agreement, the Plan of Arrangement or any of the other Acquisition Documents.
(c) In the event that the Shareholders' Representative becomes unable to perform his responsibilities hereunder or resigns from such position, the Shareholders holding, immediately prior to the Effective Time, a majority of the combined voting power of the Company Shares then outstanding shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Shareholders' Representative for all purposes of this Agreement, the Escrow Agreement and the Shareholders' Agreement and the documents delivered pursuant hereto and thereto.
(d) All decisions and actions by the Shareholders' Representative, including without limitation any agreement between the Shareholders' Representative and Cubist relating to the defense or settlement of any claims for which the Shareholders may be required to indemnify Cubist, Acquisition Sub and/or the Company pursuant to the Escrow Agreement or the Shareholders' Agreement, shall be binding upon all of the Shareholders and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) By virtue of the adoption of this Agreement and the approval of the Acquisition by the Shareholders, each Shareholder agrees that:
(i) Cubist and Acquisition Sub shall be able to rely conclusively on the instructions and decisions of the Shareholders' Representative as to the settlement of any claims for indemnification by Cubist, Acquisition Sub and/or the Company pursuant to the Escrow Agreement or the Shareholders' Agreement or any other actions required, permitted or contemplated to be taken by the Shareholders' Representative hereunder or under the Escrow Agreement, the Shareholders' Agreement, the Plan of Arrangement or any other Acquisition Document and no party to any Acquisition Document shall have any cause of action against Cubist or Acquisition Sub to the extent Cubist or Acquisition Sub, as the case may be, has relied upon the instructions or decisions of the Shareholders' Representative;
(ii) all actions, decisions and instructions of the Shareholders' Representative shall be conclusive and binding upon all of the Shareholders and no Shareholder shall have any right of recovery or cause of action of any kind whatsoever against the Shareholders' Representative for any action taken, decision made or instruction given by the Shareholders' Representative (in such capacity) under this Agreement or any other Acquisition Document, except for fraud or willful breach of this Agreement by the Shareholders' Representative;
(iii) the provisions of this Section 1.3 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Shareholder may have in connection with the transactions contemplated by this Agreement;
(iv) take all actions necessary or appropriate in the judgment remedies available at law for any breach of the Shareholders’ Representative for the accomplishment provisions of the foregoing. The Shareholders’ Representative shall have no liability to TRTLthis Section 1.3 are inadequate; therefore, TRTL ParentCubist, Acquisition Sub and/or the Company or any Shareholder with respect to actions taken or omitted to be taken, except to the extent arising out of the Shareholders’ Representative’s fraud, bad faith, gross negligence or willful misconduct. The Shareholders’ Representative shall be entitled to engage such counseltemporary and permanent injunctive relief without the necessity of proving damages if either Cubist, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and Acquisition Sub and/or the Company brings an action to enforce the provisions of this Section 1.3; and
(v) the provisions of this Section 1.3 shall be entitled binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Shareholder, and any references in this Agreement to conclusively rely on the opinions and advice of such Persons. The Shareholders’ Representative shall be entitled to reimbursement solely from a Shareholder or the Shareholders for all reasonable expensesshall mean and include the successors to the Shareholder's rights hereunder, disbursements whether pursuant to testamentary disposition, the laws of descent and advances distribution or otherwise.
(including f) All fees and disbursements of its counsel, experts and other agents and consultants) expenses incurred by the Shareholders’ Representative. The Shareholders 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, 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 shall be paid by the gross negligence or willful misconduct Shareholders in proportion to their ownership of the Shareholders’ Representative, the Shareholders’ Representative will reimburse the Shareholders the amount of such indemnified Representative Loss Company Shares immediately prior to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Shareholders, any such Representative Losses may be recovered by the Shareholders’ Representative from the funds in the Expense Fund; provided, that while this section allows the Shareholders’ Representative to be paid from the Expense Fund, this does not relieve the Shareholders 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 Shareholders or otherwise. The Shareholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Shareholders’ Representative or the termination of this AgreementEffective Time.
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Shareholders’ Representative. The parties have agreed that it is desirable to designate a 7.4.1 Effective only upon the Effective Time, Shareholder Representative Services, LLC (such entity or person and any successor or successors being the “Shareholders’ Representative”) shall act as the representative of the Company Shareholders, and shall be authorized to act on behalf of the shareholders of the Company immediately prior Shareholders and to the Second Effective Time (the “Shareholders”) for certain limited purposes, as specified herein (the “Shareholders’ Representative”). The Shareholders hereby designate Shareholder Representative Services LLC as the initial Shareholders’ Representative. The Shareholders’ Representative may resign at take any time, and all actions required or permitted to be taken by the Shareholders’ Representative may be removed by under this Agreement with respect to any claims (including the vote of Persons which collectively owned more than fifty percent (50%settlement thereof) of the Company Ordinary Shares outstanding as of immediately prior to the Second Effective Time, voting together as a single class on an as converted basis to Company Ordinary Shares (the “Majority Holders”). In the event that a Shareholders’ Representative has resigned or been removed, a new Shareholders’ Representative shall be appointed made by a vote of the Majority Holders, such appointment Trintech Party for indemnification pursuant to become effective upon the written acceptance thereof this Article VII and with respect to any actions to be taken by the new Shareholders’ Representative. The Shareholders’ Representative shall have such powers and authority as are necessary to carry out the functions assigned to it under this Agreement; provided, however, that the Shareholders’ Representative shall have no obligation pursuant to act on behalf the terms of the Shareholders except as expressly provided herein. Without limiting Escrow Agreement (including, without limitation, the generality AGREEMENT AND PLAN OF MERGER PAGE 41 exercise of the foregoing, the Shareholders’ Representative shall have full power, authority and discretion to, after the Second Effective Time power to (i) negotiate and enter into amendments authorize the delivery of cash from the Escrow Account to this Agreement for and on behalf a Trintech Party in satisfaction of the Shareholdersclaims by a Trintech Party, (ii) give agree to, negotiate, enter into settlements and receive notices compromises of, and other communications relating comply with orders of courts with respect to this Agreement any claims for indemnification and the transactions contemplated hereby on behalf of the Shareholders, (iii) take or refrain from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of or related to this Agreement and the transactions contemplated hereby, in each case on behalf of the Shareholders and (iv) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing). In all matters relating to this Article VII, the Shareholders’ Representative shall be the only party entitled to assert the rights of the Company Shareholders, and the Shareholders’ Representative shall perform all of the obligations of the Company Shareholders hereunder. The Trintech Parties shall be entitled to rely on all statements, representations and decisions of the Shareholders’ Representative. The Shareholders’ Representative is not entitled to amend this Agreement or take any actions relating to this Agreement prior to the Effective Time. The Shareholders’ Representative may resign upon not less than 20 days’ prior written notice to Trintech, Inc. and the Senior Preferred Holders. The Senior Preferred Holders by the vote of a majority-in-interest of the Base Escrow Amount included in the Escrow Fund may remove the Shareholders’ Representative from time to time upon not less than 20 days’ prior written notice to Trintech, Inc. Any vacancy in the position of the Shareholders’ Representative may be filled by the approval of the holders of a majority-in-interest in the Escrow Fund. Any successor Shareholders’ Representative shall acknowledge in writing to Trintech, Inc. his acceptance of his appointment as Shareholders’ Representative.
7.4.2 The Company Shareholders shall be bound by all actions taken by the Shareholders’ Representative in its capacity thereof, except for any action that conflicts with the limitations set forth in Section 7.4.4 below. The Shareholders’ Representative shall have no liability at all times act in its capacity as Shareholders’ Representative in a manner that the Shareholders’ Representative believes to TRTLbe in the best interest of the Senior Preferred Shareholders. Neither the Shareholders’ Representative nor any of its agents or employees, TRTL Parentif any, the Company shall be liable to any person for any error of judgment, or any Shareholder action taken, suffered or omitted to be taken under this Agreement or the Escrow Agreement, except in the case of its gross negligence or bad faith. The Shareholders’ Representative may consult with respect to actions legal counsel, independent public accountants and other experts selected by him, her or it, as the case may be and shall not be liable for any action taken or omitted to be takentaken based on any such consultation, except advice or guidance. The Shareholders’ Representative shall not have any duty to ascertain or to inquire as to the extent performance or observance of any of the terms, covenants or conditions of this Agreement or the Escrow Agreement.
7.4.3 Each Company Shareholder on whose behalf cash was contributed to the Escrow Account shall, severally and not jointly, hold harmless and reimburse the Shareholders’ Representative from and against such Company Shareholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses (including the reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative) suffered or incurred by the Shareholders’ Representative (collectively, the “Reimbursable Expenses”) arising out of or resulting from any action taken or omitted to be taken by the Shareholders’ Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Shareholders’ Representative’s fraud, bad faith, gross negligence or willful misconductbad faith; provided, however, that no such Company Shareholder shall be liable in excess of such Company Shareholder’s pro rata portion of the Aggregate Merger Consideration. The Shareholders’ Representative may withdraw funds from the Shareholders’ Representative AGREEMENT AND PLAN OF MERGER PAGE 42 Escrow Account to pay Reimbursable Expenses. In addition, if the Shareholders’ Representative Escrow Amount has been fully depleted, in the event there are any remaining funds in the Escrow Account to be distributed to shareholders of Company immediately prior to the final distribution from the Escrow Account pursuant to the Escrow Agreement, the Shareholders’ Representative shall be entitled to engage recover any such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and shall be entitled expenses from the Escrow Account prior to conclusively rely on the opinions and advice distribution of such Personsfunds to the Company Shareholders. The Shareholders’ Representative shall not be entitled to reimbursement solely from any compensation for his, her or its services in such capacity other than the Shareholders for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Shareholders’ Representative. The Shareholders will indemnify, defend and hold harmless the amount to be paid to Shareholders’ Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including by the fees and expenses Company at Closing in accordance with the terms of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “a Shareholder Representative Losses”) arising out of Agreement executed on or about the date hereof or the Closing Date.
7.4.4 Notwithstanding anything to the contrary herein or in connection with the Shareholders’ Representative’s execution and performance of this Escrow Agreement, 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 Shareholders the amount is not authorized to, and shall not, accept on behalf of any Company Shareholder any merger consideration to which such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to Company Shareholder is entitled under this Agreement and the Shareholders’ Representative by the Shareholdersshall not in any manner exercise, or seek to exercise, any such Representative Losses may be recovered voting power whatsoever with respect to shares of capital stock of the Company or Trintech, Inc. now or hereafter owned of record or beneficially by any Company Shareholder unless the Shareholders’ Representative from the funds is expressly authorized to do so in the Expense Fund; provided, that while this section allows the Shareholders’ Representative to be paid from the Expense Fund, this does not relieve the Shareholders from their obligation to promptly pay a writing signed by 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 Shareholders or otherwise. The Shareholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Shareholders’ Representative or the termination of this AgreementCompany Shareholder.
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Shareholders’ Representative. The parties have agreed that it is desirable to designate a representative to act on behalf of the shareholders (a) By virtue of the Company immediately prior Shareholder Approval, and without any further act of any holder of Company Shares, the holders of Company Shares will be deemed to have appointed ▇▇▇▇ ▇. ▇▇▇▇▇▇, Inc. (previously defined as the Second Effective Time (the “Shareholders”) for certain limited purposes, as specified herein (the “Shareholders’ Representative”). The Shareholders hereby designate Shareholder Representative Services LLC ) as the initial Shareholders’ Representative. The Shareholders’ Representative may resign at any time, agent and the Shareholders’ Representative may be removed by the vote attorney-in-fact for each holder of Persons which collectively owned more than fifty percent (50%) of the Company Ordinary Shares outstanding as of immediately prior to the Second Effective Time, voting together as a single class on an as converted basis to Company Ordinary Shares (the “Majority Holders”). In the event that a Shareholders’ Representative has resigned or been removedexcept such shareholders, a new Shareholders’ Representative shall be appointed by a vote of the Majority Holdersif any, such appointment holding Appraisal Shares) for all matters relating to become effective upon the written acceptance thereof by the new Shareholders’ Representative. The Shareholders’ Representative shall have such powers and authority as are necessary to carry out the functions assigned to it under this Agreement; provided, however, that the Shareholders’ Representative shall have no obligation including to act on behalf of the Shareholders except as expressly provided herein. Without limiting the generality of the foregoing, the Shareholders’ Representative shall have full power, authority and discretion to, after the Second Effective Time (i) negotiate and enter into amendments to this Agreement for and on behalf of the Shareholders, (ii) give and receive notices and other communications relating communications; to this Agreement bind the holders of Company Shares to the terms of the Escrow Agreements; to authorize delivery of cash and the transactions contemplated hereby on behalf exercise of the ShareholdersEscrow Note from the Escrow Amount in satisfaction of claims by Parent or Surviving Corporation; to object to such deliveries, (iii) take or refrain from taking any actions (whether by negotiationto agree to, settlementnegotiate, litigation or otherwise) enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to resolve or settle all matters such claims; and disputes arising out of or related to this Agreement and the transactions contemplated hereby, in each case on behalf of the Shareholders and (iv) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing. .
(b) The Shareholders’ Representative shall have no liability may be changed by the holders of Company Shares from time to TRTL, TRTL time upon not less than 30 days’ prior written notice to Parent, provided that holders of a majority interest of the Company or Escrow Amount agree to such removal of ▇▇▇▇ ▇. ▇▇▇▇▇▇, Inc. and any Shareholder with respect successors thereto and to actions taken or omitted the identity of the substituted agent. A Shareholders’ Representative may resign at any time upon giving at least 30 days’ written notice to be takenthe holders of interest in the Escrow Account, except that no such resignation will become effective until the appointment of a successor Shareholders’ Representative. Upon resignation of a Shareholders’ Representative or a successor Shareholders’ Representative thereto, the holders of a majority interest of the Escrow Amount will agree on a successor Shareholders’ Representative thereto within 30 days after receiving such notice. If holders of a majority interest of the Escrow Amount fail to agree upon a successor Shareholders’ Representative within such time, the extent arising out resigning Shareholders’ Representative will have the right to appoint a successor Shareholders’ Representative, or if a Shareholders’ Representative is not designated within 45 days after receipt of the initial notice, Parent will designate a successor Shareholders’ Representative. Any successor Shareholders’ Representative will execute and deliver an instrument accepting such appointment and, without further acts, will be vested with all the rights, powers, and duties of the predecessor Shareholders’ Representative as if originally named as Shareholders’ Representative and thereafter the resigning Shareholders’ Representative will be discharged from any further duties and liability under this Agreement. No bond will be required of any Shareholders’ Representative, and no Shareholders’ Representative will receive compensation for his or her services. Notices or communications to or from the Shareholders’ Representative’s fraud, bad faith, gross negligence Representative will constitute notice to or willful misconduct. from each of the holders of interest of the Escrow Amounts for all matters relating to this Agreement.
(c) The Shareholders’ Representative shall will not be entitled to engage such counsel, experts and other agents and consultants liable for any act done or omitted hereunder as it shall deem necessary in connection with exercising its powers and performing its function hereunder and shall be entitled to conclusively rely on the opinions and advice of such Persons. The Shareholders’ Representative shall be entitled to reimbursement solely from the Shareholders for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Shareholders’ Representative. The Shareholders will indemnify, defend and hold harmless the Shareholders’ Representative from while acting in good faith. Holders of Company Shares on whose behalf the Escrow Amounts are contributed will severally indemnify the Shareholders’ Representative and hold the Shareholders’ Representative harmless against any all loss, liability, or expense incurred without bad faith or willful misconduct on the part of such Shareholders’ Representative and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the acceptance or administration of such Shareholders’ Representative’s execution 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 advance and reimbursement of costs and expenses incurred by or on behalf of the Shareholders’ Representative in the performance of this Agreementtheir duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative, in accordance with the terms of the Escrow Agreements.
(d) A decision, act, consent, or instruction of the Shareholders’ Representative relating to this Agreement will constitute a decision of the holders of Company Shares and will be final, binding, and conclusive upon each case as such Representative Loss is suffered holder. Parent, and all other persons entitled to indemnification under the Escrow Agreements or incurred; providedany other document or agreement entered into in connection herewith or therewith (the “Indemnified Persons”), that in the event that may rely upon any such decision, act, consent, or instruction of the Shareholders’ Representative Loss is finally adjudicated as being the decision, act, consent, or instruction of the holders of Company Shares. Parent and all other Indemnified Persons are hereby relieved from any liability to have been directly caused any person for any acts done by the gross negligence them in accordance with such decision, act, consent, or willful misconduct instruction of the Shareholders’ Representative. IN WITNESS WHEREOF, Parent, Sub, Company, the Major Shareholders, and the Shareholders’ Representative will reimburse the Shareholders the amount of such indemnified Representative Loss have signed or caused their respective duly authorized officers to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Shareholderssign this Agreement, any such Representative Losses may be recovered by the Shareholders’ Representative from the funds in the Expense Fund; provided, that while this section allows the Shareholders’ Representative to be paid from the Expense Fund, this does not relieve the Shareholders from their obligation to promptly pay such Representative Losses all 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 Shareholders or otherwisedate first written above. The Shareholders acknowledge FLOW INTERNATIONAL CORPORATION By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Its President and agree that the foregoing indemnities will survive the resignation or removal CEO ORANGE ACQUISITION CORPORATION By /s/ ▇▇▇▇ ▇▇▇▇▇▇ Its President OMAX CORPORATION By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Its Chairman and CEO SHAREHOLDERS’ REPRESENTATIVE /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ (signature page continues) /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Major Shareholder (signature page continues) /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇ Major Shareholder (signature page continues) /s/ ▇▇▇▇▇ ▇. ▇’▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇’▇▇▇▇▇▇ Major Shareholder (signature page continues) PUGET PARTNERS, L.P. Major Shareholder By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Its General Partner (signature page continues)
1.1 Effective Time of the Shareholders’ Representative or Merger 1 1.2 Closing 1 1.3 Effects of the termination of this Agreement.Merger 1
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Shareholders’ Representative. The parties have agreed that it is desirable to designate a representative to act on behalf of the shareholders of the Company immediately (a) At least fifteen days prior to the Second Effective Time Time, the Company shall appoint a Representative and an alternate Representative (the “Shareholders”) for certain limited purposes, as specified herein (the “Shareholders’ Shareholders Representative”). The Shareholders hereby designate Shareholder Representative Services LLC as the initial Shareholders’ Representative. The Shareholders’ Representative may resign at any timeshall, and the Shareholders’ Representative may be removed by the vote of Persons which collectively owned more than fifty percent (50%) virtue of the Company Ordinary Shares outstanding as of immediately prior to the Second Effective TimeMerger, voting together as a single class on an as converted basis to Company Ordinary Shares (the “Majority Holders”). In the event that a Shareholders’ be irrevocably appointed Representative has resigned or been removed, a new Shareholders’ Representative shall be appointed by a vote of the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholders’ Representative. The Shareholders’ Representative shall have such powers holders of Converted Shares and authority as are necessary to carry out the functions assigned to it under this Agreement; provided, however, that the Shareholders’ Representative shall have no obligation authorized and empowered to act on behalf of the Shareholders except as expressly provided herein. Without limiting the generality of the foregoing, the Shareholders’ Representative shall have full power, authority and discretion to, after the Second Effective Time (i) negotiate and enter into amendments to this Agreement for and on behalf of any or all of the holders of Converted Shares in connection with the provisions of Sections 1.5(c) and 1.5(d) of the Agreement (the above named representative, as well as any subsequent representatives of the Stockholders elected by vote of holders owning a majority of the Converted Shares outstanding immediately prior to the Effective Time being referred to herein as the "Stockholders' Representative"). Notwithstanding any statement contained in this Agreement to the contrary, Parent may rely conclusively, and shall be protected in so acting, upon any written order, notice, demand, certificate, statement, document or instruction (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) executed and delivered by the Shareholders' Representative whether delivered in original form, (ii) give and receive notices and other communications relating to this Agreement and the transactions contemplated hereby on behalf of the Shareholders, (iii) take or refrain from taking any actions (whether by negotiation, settlement, litigation facsimile or otherwise) to resolve or settle all matters and disputes arising out of or related to this Agreement and the transactions contemplated hereby, in each case on behalf of the Shareholders and (iv) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing. The Shareholders’ Stockholders' Representative shall have no liability not be liable to TRTL, TRTL Parent, the Company or any Shareholder Stockholder with respect to actions any action taken or omitted to be takentaken by any of the Stockholders' Representative acting in his capacity as Stockholders' Representative under or in connection with this Agreement, except to the extent arising unless such action or omission results from or arises out of the Shareholders’ Representative’s fraud, bad faith, gross negligence willful misconduct or willful misconductcriminal action on the part of the Stockholders' Representative. The Shareholders’ Representative Parent and Merger Sub shall be entitled to engage rely on such counselappointments and treat the Stockholders' Representatives as the duly appointed representatives of each holder of Converted Shares. Each Stockholder who votes in favor of the Merger and the transactions contemplated by this Agreement, experts by such vote, without any further action, and other agents and consultants as it shall deem necessary each holder of Converted Shares who receives Merger Consideration in connection with exercising its powers the Merger, by acceptance thereof and performing its function hereunder without any further action, confirms such appointment and authority of the Stockholders' Representative and acknowledges and agrees that such appointment is irrevocable and coupled with an interest.
(b) The holders of Converted Shares shall be entitled to conclusively rely on the opinions and advice of such Persons. The Shareholders’ Representative shall be entitled to reimbursement solely from the Shareholders responsible for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Shareholders’ Representative. The Shareholders 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 incurred by the Stockholders' Representative (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipmenthis outside advisors) (collectively, “Representative Losses”) arising out of or in connection with the Shareholders’ Representative’s execution and performance of this Agreement, in each case serving 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 a representative of the Shareholders’ Representativeholders of Converted Shares hereunder and such fees, costs and expenses may be deducted from amounts otherwise distributed to holders of Converted Shares. At the Shareholders’ Representative will reimburse Effective Time, at the Shareholders election of the Company, an amount of such indemnified Representative Loss not to exceed $100,000 which would otherwise be distributed to the extent attributable to such gross negligence Disbursement Agent (or willful misconduct. If not paid directly to an escrow agent affiliated with the Shareholders’ Representative Disbursement Agent) may be deposited in a trust account for use by the Shareholders, any such Representative Losses may be recovered by the Shareholders’ Representative from the funds in the Expense Fund; provided, that while this section allows the Shareholders’ ' Representative to be paid from the Expense Fundcover fees, costs and expenses as provided in this does not relieve the Shareholders 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 Shareholders or otherwise. The Shareholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Shareholders’ Representative or the termination of this AgreementSection 4.10.
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Shareholders’ Representative. The parties have agreed that it is desirable to designate a representative to act on behalf (a) Each Shareholder, by virtue of the shareholders adoption of this Agreement and approval of the Merger by the holders of Company immediately prior Stock (regardless of whether or not all Shareholders vote in favor of or consent to the Second Effective Time (adoption of this Agreement and the “Shareholders”) for certain limited purposesapproval of the Merger and the transactions contemplated hereby, as specified herein and regardless of whether at a meeting or in an action by written consent in lieu thereof), designates M▇▇▇ ▇▇▇▇▇▇▇ (the “Shareholders’ Representative”)) as his, her or its representative for purposes of this Agreement. The Shareholders hereby designate Shareholder Representative Services LLC as the initial Shareholders’ Representative. The Shareholders’ Representative may resign at holders of Company Stock and their respective successors shall be bound by any time, and all actions taken by the Shareholders’ Representative may be removed by the vote of Persons which collectively owned more than fifty percent (50%) of the Company Ordinary Shares outstanding as of immediately prior to the Second Effective Time, voting together as a single class on an as converted basis to Company Ordinary Shares (the “Majority Holders”). In the event that a Shareholders’ Representative has resigned their behalf under or been removed, a new Shareholders’ Representative shall be appointed by a vote of the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholders’ Representative. The Shareholders’ Representative shall have such powers and authority as are necessary to carry out the functions assigned to it under this Agreement; provided, however, that the Shareholders’ Representative shall have no obligation to act on behalf of the Shareholders except as expressly provided herein. Without limiting the generality of the foregoing, the Shareholders’ Representative shall have full power, authority and discretion to, after the Second Effective Time (i) negotiate and enter into amendments to this Agreement for and on behalf of the Shareholders, (ii) give and receive notices and other communications otherwise relating to this Agreement and the transactions other documents contemplated hereby on behalf of the Shareholders, (iii) take or refrain from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of or related to this Agreement and the transactions contemplated hereby, hereunder and thereunder as if such actions were expressly ratified and confirmed by each of them in each case on behalf of writing. In the Shareholders and (iv) take all actions necessary or appropriate in the judgment of the event any Shareholders’ Representative for is unable or unwilling to serve or shall resign, a successor Shareholders’ Representative shall be selected by the accomplishment holders of a majority of the foregoingshares of Common Stock and Preferred Stock outstanding immediately prior to the Closing (taken together on an as-converted basis). The A Shareholders’ Representative may not resign, except upon 30 days prior written notice to Parent and Merger Sub. In the event of a notice of proposed resignation, or any death, disability or other replacement of a Shareholders’ Representative, a successor shall be appointed effective immediately thereafter and Parent and Merger Sub shall be notified promptly of such appointment by the successor Shareholders’ Representative. No resignation, nor any other replacement, of any Shareholders’ Representative is effective against Parent or Merger Sub until selection of a successor and prior written notice to Parent and Merger Sub of such selection has been provided and consent of Parent has been obtained (such consent not to be unreasonably withheld or delayed). Such consent shall be deemed to have been given if the proposed successor is any of G. Venkatesh, J▇▇▇▇▇ ▇▇▇▇▇, S▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ or I▇▇ ▇▇▇▇▇. Each successor Shareholders’ Representative shall have no liability all the power, rights, authority and privileges hereby conferred upon the original Shareholders’ Representative.
(b) Parent and Merger Sub shall be entitled to TRTLrely upon any actions, TRTL Parentcommunication or writings taken, given or executed by the Shareholders’ Representative on behalf of the holders of Company Stock. All communications or writings to be sent to the holders of Company Stock pursuant to this Agreement may be addressed to the Shareholders’ Representative and any communication or writing so sent shall be deemed notice to all of the holders of Company Stock hereunder. The adoption and approval of this Agreement by the holders of the Company or Stock shall constitute the consent and agreement of each of the holders of Company Stock that the Shareholders’ Representative is authorized to accept deliveries, including any Shareholder notice, on behalf of each holder of Company Stock pursuant hereto.
(c) The Shareholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each holder of Company Stock, with respect full power of substitution in such holder’s name and on such holder’s behalf to actions taken or omitted to be taken, except act according to the extent arising out terms of this Agreement and the other documents contemplated hereby in the absolute discretion of the Shareholders’ Representative; and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions, notices and other instruments contemplated by or deemed advisable in connection with this Agreement and the other documents contemplated hereby, including without limitation Article IX hereof. This power of attorney and all authority hereby conferred is granted subject to the interest of the other holders of Company Stock hereunder and in consideration of the mutual covenants and agreements made herein, and shall be irrevocable and shall not be terminated by any act of any Key Shareholder, by operation of law, whether by such holder’s fraud, bad faith, gross negligence death or willful misconduct. disability or by any other event.
(d) The Shareholders’ Representative shall be entitled hereby acknowledges and agrees to engage such counsel, experts and other agents and consultants serve as it shall deem necessary in connection with exercising its powers and performing its function hereunder and shall be entitled to conclusively rely on the opinions and advice of such Persons. The Shareholders’ Representative shall be entitled to reimbursement solely from the Shareholders for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Shareholders’ Representative. The Shareholders 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 accordance with the Shareholders’ Representative’s execution applicable terms hereof and performance of this Agreement, 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 Shareholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Shareholders, any such Representative Losses may be recovered by the Shareholders’ Representative from the funds in the Expense Fund; provided, that while this section allows the Shareholders’ Representative to be paid from the Expense Fund, this does not relieve the Shareholders from their obligation to promptly pay bound by 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 Shareholders or otherwise. The Shareholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Shareholders’ Representative or the termination of this Agreementterms.
Appears in 1 contract
Sources: Merger Agreement (Webmethods Inc)
Shareholders’ Representative. The parties have agreed that it is desirable to designate a representative (a) Approval of the Merger by the Shareholders shall also constitute the appointment of A▇▇▇▇ ▇▇▇▇▇▇▇ to act on behalf as representative of the shareholders Shareholders and to act as each of the Company immediately prior to the Second Effective Time (the “Shareholders”) for certain limited purposes, as specified herein Shareholder’s attorney-in-fact and representative (the “Shareholders’ Representative”), to do any and all things and to execute any and all documents, in such party’s name, place and stead, in any way which such party could do if personally present, in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby or thereby, including without limitation to amend, cancel or extend, or waive, any of the terms of this Agreement and the Escrow Agreement or to receive any notice required hereunder or thereunder. The Shareholders hereby designate Shareholder Representative Services LLC SafeNet, Merger Sub and the Surviving Corporation shall be entitled to rely, as being binding upon such Shareholders, upon any document or other paper believed by SafeNet, the initial Merger Sub or the Surviving Corporation to be genuine and correct and to have been signed by the Shareholders’ Representative, and SafeNet, the Merger Sub and the Surviving Corporation shall not be liable to any Shareholder for any action taken or omitted to be taken by SafeNet, the Merger Sub or the Surviving Corporation in such reliance. The Shareholders’ Representative shall have the sole and exclusive right on behalf of any Shareholder to take any action or provide any waiver, or receive any notice, pursuant to Article 8 and Sections 1.6(c), 11.9 and 11.14 of this Agreement and to settle any claim or controversy arising under this Agreement or the Escrow Agreement.
(b) The Shareholders’ Representative may resign at any timetime by giving written notice of resignation, at least sixty (60) days prior to such resignation, to SafeNet, the Surviving Corporation and the Shareholders, and the Shareholders’ Representative may be removed at any time with or without cause by upon the approval of two-thirds in interest (based on the number of shares of SafeNet Common Stock constituting the Aggregate Stock Consideration held by the vote Shareholders at the Closing of Persons which collectively owned more than fifty percent (50%the Merger) of the Company Ordinary Shares outstanding as of immediately prior to the Second Effective TimeShareholders (collectively, voting together as a single class on an as converted basis to Company Ordinary Shares (the “Majority HoldersApproving Shareholders”). Upon any such resignation or removal, such Approving Shareholders shall select a successor Shareholders’ Representative. In the event that case of a resigning Shareholders’ Representative, if no successor Shareholders’ Representative has resigned shall have been so appointed by the Approving Shareholders and shall have accepted such appointment (effective upon the date of resignation of the resigning Shareholders’ Representative), within thirty (30) days after the retiring Shareholders’ Representative’s giving of notice of resignation, then the retiring Shareholders’ Representative (or been removedSafeNet if the retiring Shareholders’ Representative does not act) may, on behalf of the Approving Shareholders, appoint a new successor Shareholders’ Representative. Upon the acceptance of any appointment as Shareholders’ Representative thereunder by a successor Shareholders’ Representative, such successor Shareholders’ Representative shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Shareholders’ Representative, and the retiring Shareholders’ Representative shall be appointed by a vote of discharged from its duties and obligations as Shareholders’ Representative under this Agreement and the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Escrow Agreement. After any retiring Shareholders’ Representative. The ’s resignation or removal hereunder as Shareholders’ Representative Representative, the provisions of this Section 11.1 shall have such powers inure to its benefit as to any actions taken or omitted to be taken by it while it was Shareholders’ Representative.
(c) The grant of authority provided for in this Section 11.1: (a) is coupled with an interest and authority as are necessary to carry out shall be irrevocable and survive the functions assigned death, incompetency, bankruptcy or liquidation of any Shareholder and shall be binding on any successor thereto and (b) shall survive the delivery of an assignment by any Shareholder of the whole or any fraction of its interest in any payment due to it under this Agreement; provided.
(d) The duties and responsibilities of the Shareholders’ Representative hereunder shall be determined solely by the express provisions of this Agreement, howeverand no other or further duties or responsibilities shall be implied under this Agreement or any other agreement among the parties hereto, whether or not the Shareholders’ Representative has knowledge thereof. The Shareholders acknowledge that the Shareholders’ Representative is acting solely as a stakeholder at the request of, and for the convenience of, the Shareholders, that the Shareholders’ Representative shall have no obligation not be deemed to act on behalf be the agent of the Company or the Shareholders except as expressly provided herein. Without limiting (except, in the generality case of the foregoingShareholders, as contemplated hereunder and under the Escrow Agreement), and that the Shareholders’ Representative shall have full powerbe released and exculpated of all liability whatsoever arising from, authority and discretion related to, after the Second Effective Time (i) negotiate and enter into amendments to this Agreement for and on behalf of the Shareholders, (ii) give and receive notices and other communications relating to this Agreement and the transactions contemplated hereby on behalf of the Shareholders, (iii) take in connection with or refrain resulting from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of or related to this Agreement and the transactions contemplated hereby, in each case on behalf of the Shareholders and (iv) take all actions necessary or appropriate in the judgment of the its activities as Shareholders’ Representative for the accomplishment of the foregoing. The Shareholders’ Representative and shall have no liability not be liable to TRTL, TRTL Parent, the Company or the Shareholders for any Shareholder with respect to actions act or omission on its part, unless taken, not taken or omitted to be taken, except to suffered in bad faith or in willful disregard of this Agreement or involving gross negligence or willful misconduct on the extent arising out part of the Shareholders’ Representative’s fraud.
(e) Except as otherwise contemplated hereunder or under the Escrow Agreement, bad faith, gross negligence or willful misconduct. The the Shareholders’ Representative shall be entitled to engage such counselrely, experts and as being binding upon each Shareholder, upon any document or other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and shall be entitled to conclusively rely on the opinions and advice of such Persons. The Shareholders’ Representative shall be entitled to reimbursement solely from the Shareholders for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred paper believed by the Shareholders’ Representative. The Shareholders 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, 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 Shareholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Shareholders, any such Representative Losses may be recovered by the Shareholders’ Representative from the funds in the Expense Fund; provided, that while this section allows the Shareholders’ Representative to be paid from the Expense Fundgenuine and correct and to have been signed by such Shareholder, this does not relieve the Shareholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent and the Shareholders’ Representative from seeking shall not be liable to any remedies available Shareholder for any action taken or omitted to it at law or otherwise. In no event will be taken by the Shareholders’ Representative be required to advance its own funds on behalf of the Shareholders or otherwise. in such reliance.
(f) The Shareholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of they shall indemnify the Shareholders’ Representative in an amount and of such character as the Shareholders’ Representative shall reasonably require to institute or the termination of defend any action or legal proceeding involving any matter referred to in this Agreement, including any and all claims, losses, liabilities, costs, judgments, attorneys’ fees and other expenses of every kind and nature whatsoever in relation thereto.
(g) Except as otherwise contemplated hereunder, the Shareholders’ Representative shall not be liable to the Shareholders for any action taken or not taken by it in good faith and believed by it to be authorized by, or within the rights or powers conferred upon it by, this Agreement and may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken, not taken or suffered by it hereunder in good faith and in accordance with, or in reliance upon, the opinion or advice of such counsel.
(h) The Shareholders hereby agree to pay or reimburse the Shareholders’ Representative upon request for all expenses, disbursements and advances, including reasonable attorney’s fees, incurred or made by the Shareholders’ Representative in connection with the carrying out of its duties hereunder, which payment or reimbursement shall not exceed each such Shareholder’s pro rata portion (based on the number of shares of SafeNet Common Stock constituting the Aggregate Stock Consideration held by the Shareholders at the Closing of the Merger), unless such Shareholder has committed fraud and such fraud has given rise to such expenses or amounts.
(i) The parties hereto agree that neither SafeNet, the Surviving Corporation nor the Merger Sub shall be liable for any action taken or not taken by the Shareholders’ Representative hereunder. Each of the Shareholders and the Shareholders’ Representative agree that all disputes, controversies or other matters arising between or among the Shareholders and the Shareholders’ Representative, and any and all liabilities with respect to such disputes, controversies or other matters, shall be limited to such parties solely, and that neither SafeNet nor any other party shall have any responsibility or liability whatsoever with respect to such disputes, controversies or other matters.
Appears in 1 contract
Shareholders’ Representative. The parties have agreed that it is desirable to designate a representative to act on behalf of the shareholders of the Company immediately prior to the Second Effective Time (the “Shareholders”) for certain limited purposes, as specified herein (the “Shareholders’ Representative”). The Shareholders hereby designate Shareholder Representative Services LLC as the initial Shareholders’ Representative. The Shareholders’ Representative may resign at any time, and the Shareholders’ Representative may be removed by the vote of Persons which collectively owned more than fifty percent (50%) of the Company Ordinary Shares outstanding as of immediately prior to the Second Effective Time, voting together as a single class on an as converted basis to Company Ordinary Shares (the “Majority Holders”). In the event that a Shareholders’ Representative has resigned or been removed, a new Shareholders’ Representative shall be appointed by a vote of the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholders’ Representative. The Shareholders’ Representative shall have such powers and authority as are necessary to carry out the functions assigned to it under this Agreement; provided, however, that the Shareholders’ Representative shall have no obligation to act on behalf of the Shareholders except as expressly provided herein. Without limiting the generality of the foregoing, the Shareholders’ Representative shall have full power, authority and discretion to, after the Second Effective Time (i) negotiate and enter into amendments to this Agreement for and on behalf of the Shareholders, (ii) give and receive notices and other communications relating to this Agreement and the transactions contemplated hereby on behalf of the Shareholders, (iii) take or refrain from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of or related to this Agreement and the transactions contemplated hereby, including any disputes related to the Earnout Payments, in each case on behalf of the Shareholders and (iv) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing. The Shareholders’ Representative shall have no liability to TRTL, TRTL Parent, the Company or any Shareholder with respect to actions taken or omitted to be taken, except to the extent arising out of the Shareholders’ Representative’s fraud, bad faith, gross negligence or willful misconduct. The Shareholders’ Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and shall be entitled to conclusively rely on the opinions and advice of such Persons. The Shareholders’ Representative shall be entitled to reimbursement solely from the Shareholders for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Shareholders’ Representative. The Shareholders 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, 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 Shareholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Shareholders, any such Representative Losses may be recovered by the Shareholders’ Representative from (i) the funds in the Expense Fund, and (ii) from any Earnout Amount at such time as any such amounts would otherwise be distributable to the Shareholders; provided, that while this section allows the Shareholders’ Representative to be paid from the Expense FundFund and the Earnout Amount, this does not relieve the Shareholders 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 Shareholders or otherwise. The Shareholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Shareholders’ Representative or the termination of this Agreement.
Appears in 1 contract
Sources: Business Combination Agreement (Terrapin 3 Acquisition Corp)
Shareholders’ Representative. (a) The parties have agreed that it is desirable to designate a representative to act on behalf of the shareholders of the Company immediately prior to the Second Effective Time (the “Shareholders”) for certain limited purposes, as specified herein (the “Shareholders’ Representative”). The Shareholders hereby designate Shareholder Representative Services LLC as the initial Shareholders’ Representative. The Shareholders’ Representative may resign at any time, and appoints the Shareholders’ Representative may be removed by as the vote of Persons which collectively owned more than fifty percent (50%) representative of the Company Ordinary Designated Equity Holders for the purposes set forth herein and for purposes of enforcing all obligations of Parent that are for the benefit of the Designated Equity Holders after the Effective Time. If the Shareholders’ Representative should dissolve, disappear, liquidate, merge out of existence, enter into bankruptcy proceedings, or otherwise experience a similar event (or, in the case Shareholders’ Representative is an individual, die or become incapacitated) (each such event, a “Terminating Event”), its successor shall be appointed within fifteen (15) calendar days of such event by Persons holding a majority of the Shares outstanding as of immediately prior to the Second Effective Time, voting together as and any such successor shall be a single class on Shareholder, an as converted basis officer of a Shareholder or an Affiliate of a Shareholder and shall agree in writing to Company Ordinary Shares (the “Majority Holders”). In the event accept such appointment; provided that notwithstanding that a Shareholders’ Representative has resigned or been removedTerminating Event shall not have occurred, a new Shareholders’ Representative shall be appointed by a vote of the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholders’ Representative. The Shareholders’ Representative shall have the right at any time to appoint an entity wholly owned by the Shareholders’ Representative as his successor hereunder and such powers entity shall agree in writing to accept such appointment. The choice of a successor Shareholders’ Representative appointed in any manner permitted above shall be final and binding upon all of the Designated Equity Holders. The decisions and actions of any successor Shareholders’ Representative shall be, for all purposes, those of the Shareholders’ Representative as if originally named herein.
(b) A Terminating Event of any Designated Equity Holder shall not terminate the authority as are necessary and agency of the Shareholders’ Representative.
(c) Notwithstanding the terms of this Agreement to carry out the functions assigned contrary, the Shareholders’ Representative may (i) reduce the aggregate amount to it under be paid to the Designated Equity Holders hereunder for any costs, fees and expenses that the Shareholders’ Representative and its Affiliates may incur in performing their duties hereunder, including any costs incurred by the Shareholders’ Representative in connection with Article X or Section 3.3 or (ii) delay all or a portion of any such payment to Designated Equity Holders to reserve for any such costs, fees and expenses.
(d) By their acceptance of any payment pursuant to Article III of this Agreement; provided, however, the Designated Equity Holders shall be deemed to have agreed that the Shareholders’ Representative shall have no obligation liability (i) to act on behalf of any Designated Equity Holder in connection with performing its obligations hereunder, except to the Shareholders except as expressly provided herein. Without limiting the generality of the foregoing, extent the Shareholders’ Representative shall have full poweracted maliciously in connection with the performance of its duties hereunder, authority and discretion (ii) under this Agreement prior to the Effective Time.
(e) By their acceptance of any payments pursuant to Article III of this Agreement, the Designated Equity Holders shall be deemed to have authorized the Shareholders’ Representative, on their behalf and in their name, to, after the Second Effective Time :
(i) negotiate receive all notices or documents given or to be given to the Equity Holders pursuant hereto or in connection herewith and enter into amendments to receive and accept service of legal process in connection with any suit or proceeding arising under this Agreement Agreement. The Shareholders’ Representative shall promptly forward a copy of such notice of process to each Designated Equity Holder at an address designated by such Designated Equity Holder;
(ii) engage counsel and such accountants and other advisors for the Designated Equity Holders and incur such other expenses on behalf of the Shareholders, (ii) give and receive notices and other communications relating to Designated Equity Holders in connection with this Agreement and the transactions contemplated hereby as the Shareholders’ Representative may deem appropriate;
(iii) take such action on behalf of the Designated Equity Holders as the Shareholders, ’ Representative may deem appropriate in respect of:
(iiiA) any claims (including settlement thereof) made by any Parent Indemnitee for indemnification pursuant to Section 10.1;
(B) the rights and obligations of the Shareholders’ Representative pursuant to Section 3.3; and
(C) any calculations or distributions with respect to the Per Share Contingent Consideration;
(iv) take such other action (x) as the Shareholders’ Representative is authorized to take under this Agreement or refrain from taking (y) on written instructions executed by holders of a majority of the outstanding Shares immediately prior to the Effective Time;
(v) receive all documents or certificates or notices and make all determinations on behalf of the Designated Equity Holders required under this Agreement;
(vi) represent each individual Designated Equity Holder or all or certain Designated Equity Holders as a group in all litigation and negotiate or enter into settlements and compromises relating to any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of or related to in connection with this Agreement and the transactions contemplated hereby, in each case on behalf of the Shareholders and ; and
(ivvii) take all actions relevant action in all such other matters as the Shareholders’ Representative may deem necessary or appropriate in to consummate this Agreement and the judgment transactions contemplated hereby.
(f) The appointment of the Shareholders’ Representative for hereunder is coupled with an interest and irrevocable, and any action taken by the accomplishment of Shareholders’ Representative pursuant to the foregoing. The authority granted in this Section 11.4 shall be effective and binding on each Designated Equity Holder notwithstanding any contrary action of, or direction from, any Designated Equity Holder, except to the extent the Shareholders’ Representative shall have no liability to TRTL, TRTL Parent, the Company or any Shareholder with respect to actions taken or omitted to be taken, except to the extent arising out of the Shareholders’ Representative’s fraud, bad faith, gross negligence or willful misconduct. The Shareholders’ Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary acted maliciously in connection with exercising the performance of its powers and performing its function hereunder and duties hereunder.
(g) By their acceptance of any payments pursuant to Article III of this Agreement, the Equity Holders shall be entitled deemed to conclusively rely on the opinions have agreed, severally and advice of not jointly (ratably in proportion to such Persons. The Shareholders’ Representative shall be entitled Equity Holder’s Ownership Percentage), to reimbursement solely from the Shareholders for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Shareholders’ Representative. The Shareholders will indemnify, defend and hold harmless the Shareholders’ Representative against, from and against in respect of any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including Losses in connection with or resulting from the fees and expenses performance of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of its duties hereunder or in connection with this Agreement, including any costs incurred by the Shareholders’ Representative’s execution and performance of this AgreementRepresentative in connection with Article X or Section 3.3, in each case as such Representative Loss is suffered or incurred; provided, that after giving effect to any reductions in the event that any such Representative Loss is finally adjudicated aggregate consideration paid to have been directly caused by the gross negligence or willful misconduct of Designated Equity Holders pursuant to Section 11.4(c) to the extent the Shareholders’ Representative, the Shareholders’ Representative will reimburse the Shareholders the amount of such indemnified Representative Loss in its sole discretion, elects to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Shareholders, make any such Representative Losses may be recovered by the Shareholders’ Representative from the funds in the Expense Fund; provided, that while this section allows the Shareholders’ Representative to be paid from the Expense Fund, this does not relieve the Shareholders 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 Shareholders or otherwise. The Shareholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Shareholders’ Representative or the termination of this Agreementreduction.
Appears in 1 contract
Sources: Merger Agreement (ACE LTD)
Shareholders’ Representative. The parties have agreed that it is desirable to designate a representative to act on behalf of the shareholders (a) By virtue of the Company immediately prior Shareholder Approval, and without any further act of any holder of Company Shares, the holders of Company Shares will be deemed to have appointed ▇▇▇▇ ▇. ▇▇▇▇▇▇, Inc. (previously defined as the Second Effective Time (the “Shareholders”) for certain limited purposes, as specified herein (the “Shareholders’ Representative”). The Shareholders hereby designate Shareholder Representative Services LLC ) as the initial Shareholders’ Representative. The Shareholders’ Representative may resign at any time, agent and the Shareholders’ Representative may be removed by the vote attorney-in-fact for each holder of Persons which collectively owned more than fifty percent (50%) of the Company Ordinary Shares outstanding as of immediately prior to the Second Effective Time, voting together as a single class on an as converted basis to Company Ordinary Shares (the “Majority Holders”). In the event that a Shareholders’ Representative has resigned or been removedexcept such shareholders, a new Shareholders’ Representative shall be appointed by a vote of the Majority Holdersif any, such appointment holding Appraisal Shares) for all matters relating to become effective upon the written acceptance thereof by the new Shareholders’ Representative. The Shareholders’ Representative shall have such powers and authority as are necessary to carry out the functions assigned to it under this Agreement; provided, however, that the Shareholders’ Representative shall have no obligation including to act on behalf of the Shareholders except as expressly provided herein. Without limiting the generality of the foregoing, the Shareholders’ Representative shall have full power, authority and discretion to, after the Second Effective Time (i) negotiate and enter into amendments to this Agreement for and on behalf of the Shareholders, (ii) give and receive notices and other communications relating communications; to this Agreement bind the holders of Company Shares to the terms of the Escrow Agreements; to authorize delivery of cash and the transactions contemplated hereby on behalf exercise of the ShareholdersEscrow Note from the Escrow Amount in satisfaction of claims by Parent or Surviving Corporation; to object to such deliveries, (iii) take or refrain from taking any actions (whether by negotiationto agree to, settlementnegotiate, litigation or otherwise) enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to resolve or settle all matters such claims; and disputes arising out of or related to this Agreement and the transactions contemplated hereby, in each case on behalf of the Shareholders and (iv) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing. .
(b) The Shareholders’ Representative shall have no liability may be changed by the holders of Company Shares from time to TRTL, TRTL time upon not less than 30 days’ prior written notice to Parent, provided that holders of a majority interest of the Company or Escrow Amount agree to such removal of ▇▇▇▇ ▇. ▇▇▇▇▇▇, Inc. and any Shareholder with respect successors thereto and to actions taken or omitted the identity of the substituted agent. A Shareholders’ Representative may resign at any time upon giving at least 30 days’ written notice to be takenthe holders of interest in the Escrow Account, except that no such resignation will become effective until the appointment of a successor Shareholders’ Representative. Upon resignation of a Shareholders’ Representative or a successor Shareholders’ Representative thereto, the holders of a majority interest of the Escrow Amount will agree on a successor Shareholders’ Representative thereto within 30 days after receiving such notice. If holders of a majority interest of the Escrow Amount fail to agree upon a successor Shareholders’ Representative within such time, the extent arising out resigning Shareholders’ Representative will have the right to appoint a successor Shareholders’ Representative, or if a Shareholders’ Representative is not designated within 45 days after receipt of the initial notice, Parent will designate a successor Shareholders’ Representative. Any successor Shareholders’ Representative will execute and deliver an instrument accepting such appointment and, without further acts, will be vested with all the rights, powers, and duties of the predecessor Shareholders’ Representative as if originally named as Shareholders’ Representative and thereafter the resigning Shareholders’ Representative will be discharged from any further duties and liability under this Agreement. No bond will be required of any Shareholders’ Representative, and no Shareholders’ Representative will receive compensation for his or her services. Notices or communications to or from the Shareholders’ Representative’s fraud, bad faith, gross negligence Representative will constitute notice to or willful misconduct. from each of the holders of interest of the Escrow Amounts for all matters relating to this Agreement.
(c) The Shareholders’ Representative shall will not be entitled to engage such counsel, experts and other agents and consultants liable for any act done or omitted hereunder as it shall deem necessary in connection with exercising its powers and performing its function hereunder and shall be entitled to conclusively rely on the opinions and advice of such Persons. The Shareholders’ Representative shall be entitled to reimbursement solely from the Shareholders for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Shareholders’ Representative. The Shareholders will indemnify, defend and hold harmless the Shareholders’ Representative from while acting in good faith. Holders of Company Shares on whose behalf the Escrow Amounts are contributed will severally indemnify the Shareholders’ Representative and hold the Shareholders’ Representative harmless against any all loss, liability, or expense incurred without bad faith or willful misconduct on the part of such Shareholders’ Representative and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the acceptance or administration of such Shareholders’ Representative’s execution 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 advance and reimbursement of costs and expenses incurred by or on behalf of the Shareholders’ Representative in the performance of this Agreementtheir duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative, in accordance with the terms of the Escrow Agreements.
(d) A decision, act, consent, or instruction of the Shareholders’ Representative relating to this Agreement will constitute a decision of the holders of Company Shares and will be final, binding, and conclusive upon each case as such Representative Loss is suffered holder. Parent, and all other persons entitled to indemnification under the Escrow Agreements or incurred; providedany other document or agreement entered into in connection herewith or therewith (the “Indemnified Persons”), that in the event that may rely upon any such decision, act, consent, or instruction of the Shareholders’ Representative Loss is finally adjudicated as being the decision, act, consent, or instruction of the holders of Company Shares. Parent and all other Indemnified Persons are hereby relieved from any liability to have been directly caused any person for any acts done by the gross negligence them in accordance with such decision, act, consent, or willful misconduct instruction of the Shareholders’ Representative. IN WITNESS WHEREOF, Parent, Sub, Company, the Major Shareholders, and the Shareholders’ Representative will reimburse the Shareholders the amount of such indemnified Representative Loss have signed or caused their respective duly authorized officers to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Shareholderssign this Agreement, any such Representative Losses may be recovered by the Shareholders’ Representative from the funds in the Expense Fund; provided, that while this section allows the Shareholders’ Representative to be paid from the Expense Fund, this does not relieve the Shareholders from their obligation to promptly pay such Representative Losses all 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 Shareholders or otherwisedate first written above. The Shareholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal FLOW INTERNATIONAL CORPORATION By Its ORANGE ACQUISITION CORPORATION By Its OMAX CORPORATION By Its SHAREHOLDERS’ REPRESENTATIVE (signature page continues) Major Shareholder [•]
ARTICLE I THE MERGER
1.1 Effective Time of the Shareholders’ Representative or Merger 1 1.2 Closing 1 1.3 Effects of the termination of this Agreement.Merger 1
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Shareholders’ Representative. The parties have agreed that it (a) By virtue of the the approval of the Merger and this Agreement by the Shareholders and without any further action of any of the Shareholders or the Company, Fortis Advisors LLC is desirable hereby appointed as the exclusive agent and attorney-in-fact for each of the Shareholders, (i) to designate a representative to act enter into and deliver the Escrow Agreement on behalf of the shareholders of the Company immediately prior to the Second Effective Time (the “Shareholders”) for certain limited purposes, as specified herein (the “Shareholders’ Representative”). The Shareholders hereby designate Shareholder Representative Services LLC as the initial Shareholders’ Representative. The Shareholders’ Representative may resign at any time, and the Shareholders’ Representative may be removed by the vote of Persons which collectively owned more than fifty percent (50%) of the Company Ordinary Shares outstanding as of immediately prior to the Second Effective Time, voting together as a single class on an as converted basis to Company Ordinary Shares (the “Majority Holders”). In the event that a Shareholders’ Representative has resigned or been removed, a new Shareholders’ Representative shall be appointed by a vote of the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholders’ Representative. The Shareholders’ Representative shall have such powers and authority as are necessary to carry out the functions assigned to it under this Agreement; provided, however, that the Shareholders’ Representative shall have no obligation to act on behalf of the Shareholders except as expressly provided herein. Without limiting the generality of the foregoing, the Shareholders’ Representative shall have full power, authority and discretion to, after the Second Effective Time (i) negotiate and enter into amendments to this Agreement for and on behalf each of the Shareholders, (ii) give and receive notices and other communications relating to this Agreement and authorize or object to delivery to the transactions contemplated hereby on behalf Purchaser of the ShareholdersEscrow Fund, or any portion thereof, in satisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow Agreement, and (iii) take or refrain from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of or related to this Agreement and the transactions contemplated hereby, in each case on behalf of the Shareholders and (iv) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing under this Agreement, the Escrow Agreement or the Shareholders’ Representative Engagement Agreement. Notwithstanding the foregoing. The , the Shareholders’ Representative shall have no liability obligation to TRTL, TRTL Parent, act on behalf of the Company or any Shareholder with respect to actions taken or omitted to be takenShareholders, except to as expressly provided herein, in the extent arising out Escrow Agreement and in the Shareholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Shareholders’ Representative’s fraudRepresentative in any ancillary agreement, bad faithschedule, gross negligence exhibit or willful misconductthe Company Disclosure Schedules. The Shareholders’ Representative shall may resign at any time and such agency may be entitled changed by the Shareholders as of immediately prior to engage such counselthe Effective Time from time to time upon no less than twenty (20) days prior written notice to the Purchaser Parties and, experts and other agents and consultants as it shall deem necessary if after the Closing, the Purchaser, provided, however, that the Shareholders’ Representative may not be removed unless holders of at least 51% of all of the shares of Company Common Stock on an as-if converted basis outstanding immediately prior to the Effective Time. Any vacancy in connection with exercising its powers and performing its function hereunder and shall the position of Shareholders’ Representative may be entitled filled by approval of the holders of at least 51% of all of the shares of Company Common Stock on an as-if converted basis outstanding immediately prior to conclusively rely on the opinions and advice Effective Time. Any removal or change of such Persons. The the Shareholders’ Representative shall not be entitled effective until written notice is delivered to reimbursement solely from the Shareholders for all reasonable expensesParent or Purchaser, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Shareholders’ Representativeas applicable. The Shareholders will indemnify, defend immunities 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, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated rights 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 Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Shareholders, any such Representative Losses may be recovered by the Shareholders’ Representative from the funds in the Expense Fund; provided, that while this section allows the Shareholders’ Representative to be paid from the Expense Fund, this does not relieve the Shareholders 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 Shareholders or otherwise. The Shareholders acknowledge and agree that the foregoing indemnities will indemnification 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 and the Escrow Agreement. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative shall constitute notice to or from the Shareholders.
(b) 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 and the Shareholders’ Representative Engagement Agreement (such Shareholders, 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 for any act done or omitted hereunder, under the Escrow Agreement or under the Shareholders’ Representative Engagement Agreement while acting in good faith and in the exercise of reasonable business judgment. The Shareholders 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 Escrow Agreement or under the Shareholders’ Representative Engagement Agreement. Such Shareholders’ Representative Expenses may be recovered directly from the Shareholders. The Shareholders acknowledge that the Shareholders’ Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow 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. A decision, act, consent or instruction of the Shareholders’ Representative under this Agreement, the Escrow Agreement or the Shareholders’ Representative Engagement Agreement shall, for all purposes hereunder, constitute a decision, act, consent or instruction of all of the stockholders of the Company Group and shall be final, binding and conclusive upon each of the Shareholders and their successors as if expressly confirmed and ratified in writing by the Shareholders, and all defenses which may be available to any Shareholder to contest, negate or disaffirm the action of the Shareholders’ Representative taken in good faith under this Agreement, the Escrow Agreement or the Shareholders’ Representative Engagement Agreement are waived. The powers, immunities and rights to indemnification granted to the Shareholders’ Representative Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Shareholder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Shareholder of the whole or any fraction of his, her or its interest in the Escrow Fund or the Company Earn-out Shares. The Shareholders’ Representative shall be entitled to: (i) rely upon the consideration spreadsheet provided to the Shareholders’ Representative by the Company, (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.
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