Shareholders’ Representative. (a) By virtue of the execution of this Agreement by the Sellers, and without further action of any Seller, each Seller shall be deemed to have irrevocably constituted and appointed GSH (and by execution of this Agreement it hereby accepts such appointment) as agent and attorney-in-fact (“Shareholders’ Representative”) for and on behalf of the Sellers (in their capacity as shareholders of the Company), with full power of substitution, to act in the name, place and stead of each Seller with respect to Section 2.4 and the Escrow Agreement and the taking by the Shareholders’ Representative of any and all actions and the making of any decisions required or permitted to be taken by the Shareholders’ Representative under Section 2.4 and the Escrow Agreement (it being understood that the Sellers shall have no right to pursue any claim on behalf of any Company Indemnified Party in respect of the rights granted to Company Indemnified Parties under Section 7.1). The power of attorney granted in this Section 13.1 (a) is coupled with an interest and is irrevocable, may be delegated by the Shareholders’ Representative and shall survive the sale, transfer, merger, reorganization, bankruptcy, liquidation, dissolution, death or incapacity of each Seller. Such agency may be changed by the holders of a majority in interest of the Escrow Fund from time to time (including in the event of the death, disability or other incapacity of a Shareholders’ Representative that is an individual), and any such successor shall succeed the Shareholders’ Representative as Shareholders’ Representative hereunder. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall receive no compensation for its services. At any time from the Closing Date until payment of any remaining amounts in the Shareholders’ Representative Expense Fund in accordance with Section 2.4(c)(i), the amount of documented costs and expenses (including all fees and disbursements of counsel, financial advisors and accountants) incurred by the Shareholders’ Representative in connection with the performance of its rights or obligations under this Agreement and the taking of any and all actions in connection therewith, shall be paid to the Shareholders’ Representative from the Shareholders’ Representative Expense Fund. In connection with the performance of its rights and obligations under this Agreement and the Escrow Agreement and the taking of any and all actions in connection therewith, the Shareholders’ Representative shall not be required to expend any of the amounts held in the Shareholders’ Representative Expense Fund (though, for the avoidance of doubt, it may do so at any time and from time to time in its sole discretion) and in no event shall the Shareholders’ Representative be required to incur any costs or expenses or expend any amount in excess of amounts held in the Shareholders’ Representative Expense Fund. Notwithstanding the foregoing, (i) the Shareholders’ Representative may retain in the Shareholders’ Representative Expense Fund, in accordance with the terms of this Agreement, any amount that the Shareholders’ Representative deems in its reasonable discretion to be necessary to satisfy any documented costs and expenses (including all fees and disbursements of counsel, financial advisors and accountants) incurred or to be incurred by the Shareholders’ Representative in connection with the performance of its rights or obligations under this Agreement and the Escrow Agreement and the taking of any and all actions in connection therewith and (ii) to the extent that funds are no longer available in the Shareholders’ Representative Expense Fund, the Shareholders’ Representative shall have recourse against each Seller directly for such costs and expenses (it being understood that and agreed that any such recourse shall be against each Seller, severally and not jointly, in accordance with the percentage of the aggregate Purchase Price received by or attributable to such Seller as of such date). (b) The Shareholders’ Representative shall not be liable to any Person for any act of the Shareholders’ Representative arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement (it being understood that any act done or omitted pursuant to the advice of legal counsel shall be conclusive evidence of such good faith and reasonable judgment), except to the extent any liability, loss, damage, penalty, fine, cost or expense is actually incurred by such Person as a proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative shall not be liable for, and shall be indemnified by the Sellers for, any liability, loss, damage, penalty, or fine incurred by the Shareholders’ Representative (and any cost or expense incurred by the Shareholders’ Representative in connection therewith) arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, except to the extent that any such liability, loss, damage, penalty, or fine, cost or expense is the proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative Expense Fund shall be available to indemnify and hold the Shareholders’ Representative harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Shareholders’ Representative arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, except to the extent that any such liability, loss, damage, penalty, fine, cost or expense is the proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Shareholders’ Representative in connection with actions taken by the Shareholders’ Representative pursuant to the terms of Section 2.4 or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) from the Shareholders’ Representative Expense Fund. (c) From and after the Closing, Buyer shall cause the Company to provide the Shareholders’ Representative with reasonable access to information about the Company and the reasonable assistance of the officers and employees of Buyer and the Company for purposes of performing its duties and exercising its rights under this Agreement, provided that the Shareholders’ Representative shall treat confidentially any nonpublic information about the Company (except in connection with the performance by the Shareholders’ Representative of its duties or the exercise of its rights under this Agreement). (d) From and after the Closing, a decision, act, consent or instruction of the Shareholders’ Representative shall constitute a decision of all the Sellers and shall be final, binding and conclusive upon each Seller, and the Escrow Agent and Buyer may rely upon any decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of each Seller. Buyer is hereby relieved from any liability to any Person for any acts done by Buyer in accordance with any such decision, act, consent or instruction of the Shareholders’ Representative.
Appears in 1 contract
Shareholders’ Representative. The Shareholders hereby irrevocably appoint ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (a) By virtue of the execution of this Agreement by the Sellers, and without further action of any Seller, each Seller shall be deemed to have irrevocably constituted and appointed GSH (and by execution of this Agreement it hereby accepts such appointment“Shareholders’ Representative”) as agent the representative, agent, proxy, and attorney-in-fact (“for all the Shareholders for all purposes under this Agreement, including the full power and authority on the Shareholders’ Representative”behalf: (i) for to consummate the transactions contemplated by this Agreement, including the execution and delivery of the agreements, certificates, instruments, and other documents contemplated hereby or executed or delivered in connection herewith, (ii) to negotiate disputes arising under, or relating to, this Agreement and the other agreements, certificates, instruments, and documents contemplated hereby or executed or delivered in connection herewith, (iii) to execute and deliver any amendment or waiver to this Agreement or any of the other agreements, certificates, instruments, and documents contemplated hereby or executed or delivered in connection herewith (without the prior approval of the Shareholders), (iv) to take all other actions to be taken by or on behalf of the Sellers Shareholders in connection with this Agreement (in their capacity as shareholders including the exercise of the Company), with full power of substitution, to act in the name, place and stead of each Seller with respect to Section 2.4 any rights and the Escrow Agreement performance of any obligations pursuant to Article 6) and the taking by the Shareholders’ Representative of any other agreements, certificates, instruments, and all actions and the making of any decisions required documents contemplated hereby or permitted to be taken by the Shareholders’ Representative under Section 2.4 and the Escrow Agreement (it being understood that the Sellers shall have no right to pursue any claim on behalf of any Company Indemnified Party executed or delivered in respect of the rights granted to Company Indemnified Parties under Section 7.1)connection herewith. The power of attorney granted in this
Section 13.1 (a) is Shareholders further agree that such agency and proxy are coupled with an interest and is irrevocableinterest, may be delegated by are therefore irrevocable without the Shareholders’ Representative and shall survive the sale, transfer, merger, reorganization, bankruptcy, liquidation, dissolution, death or incapacity of each Seller. Such agency may be changed by the holders of a majority in interest of the Escrow Fund from time to time (including in the event of the death, disability or other incapacity of a Shareholders’ Representative that is an individual), and any such successor shall succeed the Shareholders’ Representative as Shareholders’ Representative hereunder. No bond shall be required consent of the Shareholders’ Representative, and shall survive the death, incapacity, bankruptcy, dissolution, or liquidation of any Shareholder. All decisions and actions by the Shareholders’ Representative shall receive no compensation for its services. At any time from the Closing Date until payment of any remaining amounts in the Shareholders’ Representative Expense Fund in accordance with Section 2.4(c)(i), the amount of documented costs and expenses (including be binding upon all fees and disbursements of counsel, financial advisors and accountants) incurred by the Shareholders’ Representative in connection with the performance of its rights or obligations under this Agreement and the taking of any and all actions in connection therewith, shall be paid to the Shareholders’ Representative from the Shareholders’ Representative Expense Fund. In connection with the performance of its rights and obligations under this Agreement and the Escrow Agreement and the taking of any and all actions in connection therewith, the Shareholders’ Representative shall not be required to expend any of the amounts held in the Shareholders’ Representative Expense Fund (though, for the avoidance of doubt, it may do so at any time and from time to time in its sole discretion) and in no event shall the Shareholders’ Representative be required to incur any costs or expenses or expend any amount in excess of amounts held in the Shareholders’ Representative Expense Fund. Notwithstanding the foregoing, (i) the Shareholders’ Representative may retain in the Shareholders’ Representative Expense Fund, in accordance with the terms of this Agreement, any amount that the Shareholders’ Representative deems in its reasonable discretion to be necessary to satisfy any documented costs and expenses (including all fees and disbursements of counsel, financial advisors and accountants) incurred or to be incurred by the Shareholders’ Representative in connection with the performance of its rights or obligations under this Agreement and the Escrow Agreement and the taking of any and all actions in connection therewith and (ii) to the extent that funds are no longer available in the Shareholders’ Representative Expense Fund, the Shareholders’ Representative shall have recourse against each Seller directly for such costs and expenses (it being understood that and agreed that any such recourse shall be against each Seller, severally and not jointly, in accordance with the percentage of the aggregate Purchase Price received by or attributable to such Seller as of such date).
(b) The Shareholders’ Representative shall not be liable to any Person for any act of the Shareholders’ Representative arising out of , and no Shareholder shall have the right to object, dissent, protest, or in connection with otherwise contest the acceptance or administration of its duties under this Agreement and the Escrow Agreement (it being understood that any act done or omitted pursuant to the advice of legal counsel shall be conclusive evidence of such good faith and reasonable judgment), except to the extent any liability, loss, damage, penalty, fine, cost or expense is actually incurred by such Person as a proximate result of the fraud or bad faith of the Shareholders’ Representativesame. The Shareholders’ Representative shall not be liable forhave no Liability in respect of any action, and shall be indemnified by the Sellers for, any liability, loss, damage, penaltyclaim, or fine incurred by proceeding brought against the Shareholders’ Representative (and by any cost or expense incurred by Shareholder if the Shareholders’ Representative took or omitted taking any action in connection therewith) arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, except to the extent that any such liability, loss, damage, penalty, or fine, cost or expense is the proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative Expense Fund shall be available to indemnify and hold the Shareholders’ Representative harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Shareholders’ Representative arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, except to the extent that any such liability, loss, damage, penalty, fine, cost or expense is the proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Shareholders’ Representative in connection with actions taken by the Shareholders’ Representative pursuant to the terms of Section 2.4 or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) from the Shareholders’ Representative Expense Fundgood faith.
(c) From and after the Closing, Buyer shall cause the Company to provide the Shareholders’ Representative with reasonable access to information about the Company and the reasonable assistance of the officers and employees of Buyer and the Company for purposes of performing its duties and exercising its rights under this Agreement, provided that the Shareholders’ Representative shall treat confidentially any nonpublic information about the Company (except in connection with the performance by the Shareholders’ Representative of its duties or the exercise of its rights under this Agreement).
(d) From and after the Closing, a decision, act, consent or instruction of the Shareholders’ Representative shall constitute a decision of all the Sellers and shall be final, binding and conclusive upon each Seller, and the Escrow Agent and Buyer may rely upon any decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of each Seller. Buyer is hereby relieved from any liability to any Person for any acts done by Buyer in accordance with any such decision, act, consent or instruction of the Shareholders’ Representative.
Appears in 1 contract
Shareholders’ Representative. (a) By virtue In order to administer efficiently (i) the implementation of the execution Agreement as it pertains to the Shareholders and Optionholders, (ii) the waiver of this Agreement by any condition to the Sellersobligations of the Shareholders to consummate the transactions contemplated hereby, and without further action (iii) the settlement of any Sellerdispute with respect to the Agreement, each Seller shall be deemed to have irrevocably constituted ▇▇▇▇▇▇▇ ▇▇▇ is hereby designated as the representative of the Shareholders and appointed GSH Optionholders (and by execution of this Agreement it hereby accepts such appointment) as agent and attorney-in-fact (the “Shareholders’ Representative”) for and on behalf of the Sellers (in their capacity as shareholders of the Company), with full power of substitution, to act in the name, place and stead of each Seller with respect to Section 2.4 and the Escrow Agreement and the taking by the Shareholders’ Representative of any and all actions and the making of any decisions required or permitted to be taken by the Shareholders’ Representative under Section 2.4 and the Escrow Agreement (it being understood that the Sellers shall have no right to pursue any claim on behalf of any Company Indemnified Party in respect of the rights granted to Company Indemnified Parties under Section 7.1). The power of attorney granted in this
Section 13.1 (a) is coupled with an interest and is irrevocable, may be delegated by the Shareholders’ Representative and shall survive the sale, transfer, merger, reorganization, bankruptcy, liquidation, dissolution, death or incapacity of each Seller. Such agency may be changed by the holders of a majority in interest of the Escrow Fund from time to time (including in the event of the death, disability or other incapacity of a Shareholders’ Representative that is an individual), and any such successor shall succeed the Shareholders’ Representative as Shareholders’ Representative hereunder. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall receive no compensation for its services. At any time from the Closing Date until payment of any remaining amounts in the Shareholders’ Representative Expense Fund in accordance with Section 2.4(c)(i), the amount of documented costs and expenses (including all fees and disbursements of counsel, financial advisors and accountants) incurred by the Shareholders’ Representative in connection with the performance of its rights or obligations under this Agreement and the taking of any and all actions in connection therewith, shall be paid to the Shareholders’ Representative from the Shareholders’ Representative Expense Fund. In connection with the performance of its rights and obligations under this Agreement and the Escrow Agreement and the taking of any and all actions in connection therewith, the Shareholders’ Representative shall not be required to expend any of the amounts held in the Shareholders’ Representative Expense Fund (though, for the avoidance of doubt, it may do so at any time and from time to time in its sole discretion) and in no event shall the Shareholders’ Representative be required to incur any costs or expenses or expend any amount in excess of amounts held in the Shareholders’ Representative Expense Fund. Notwithstanding the foregoing, (i) the Shareholders’ Representative may retain in the Shareholders’ Representative Expense Fund, in accordance with the terms of this Agreement, any amount that the Shareholders’ Representative deems in its reasonable discretion to be necessary to satisfy any documented costs and expenses (including all fees and disbursements of counsel, financial advisors and accountants) incurred or to be incurred by the Shareholders’ Representative in connection with the performance of its rights or obligations under this Agreement and the Escrow Agreement and the taking of any and all actions in connection therewith and (ii) to the extent that funds are no longer available in the Shareholders’ Representative Expense Fund, the Shareholders’ Representative shall have recourse against each Seller directly for such costs and expenses (it being understood that and agreed that any such recourse shall be against each Seller, severally and not jointly, in accordance with the percentage of the aggregate Purchase Price received by or attributable to such Seller as of such date).
(b) The Shareholders’ Representative is hereby authorized (i) to take all action necessary in connection with the implementation of the Agreement on behalf of the Shareholders, the waiver of any condition to the obligations of the Shareholders to consummate the transactions contemplated hereby or the settlement of any dispute, (ii) to give and receive all notices required to be given under the Agreement and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Shareholders and Optionholders by the terms of this Agreement, including without limitation, the execution and delivery of documents to transfer the Company Shares to the Parent for cancellation; provided, however, that the Shareholders’ Representative shall not have authority to commence legal proceedings on behalf of the Shareholders and Optionholders without their prior written consent or to amend any provision of this Agreement without their prior written consent.
(c) In the event that the Shareholders’ Representative dies, becomes legally incapacitated or resigns from such position, ▇▇▇▇▇▇▇ ▇▇▇▇ shall fill such vacancy and shall be liable deemed to any Person be the Shareholders’ Representative for any act all purposes of this Agreement; however, no change in the Shareholders’ Representative shall be effective until Parent is given notice of it by the remaining Shareholders and Optionholders.
(d) All decisions and actions by the Shareholders’ Representative shall be binding upon all of the Shareholders and Optionholders, and no Shareholder or Optionholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, the parties agree that:
(i) Parent and Merger Subsidiary shall be able to rely conclusively on the instructions and decisions of the Shareholders’ Representative arising out as to any actions required or permitted to be taken by the Shareholders or the Shareholders’ Representative hereunder, and no party hereunder shall have any cause of action against Parent or Merger Subsidiary for any action taken by Parent or Merger Subsidiary in connection with reliance upon the acceptance instructions or administration of its duties under this Agreement and the Escrow Agreement (it being understood that any act done or omitted pursuant to the advice of legal counsel shall be conclusive evidence of such good faith and reasonable judgment), except to the extent any liability, loss, damage, penalty, fine, cost or expense is actually incurred by such Person as a proximate result of the fraud or bad faith decisions of the Shareholders’ Representative. The ;
(ii) all actions, decisions and instructions of the Shareholders’ Representative shall not be liable forconclusive and binding upon all of the Shareholders and Optionholders and no Shareholder or Optionholder shall have any cause of action against the Shareholders’ Representative for any action taken, and shall be indemnified by the Sellers for, any liability, loss, damage, penalty, decision made or fine incurred instruction given by the Shareholders’ Representative under this Agreement, except for fraud or willful breach of this Agreement by the Shareholders’ Representative;
(iii) remedies available at law for any breach of the provisions of this Section 1.13 are inadequate; therefore, Parent or Merger Subsidiary shall be entitled to temporary and any cost permanent injunctive relief without the necessity of proving damages if Parent or expense Merger Subsidiary brings an action to enforce the provisions of this Section 1.13; and
(iv) the provisions of this Section 1.13 are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by the Shareholders and Optionholders to the Shareholders’ Representative and shall be binding upon the executors, heirs, legal representatives and successors of each Shareholder.
(f) All fees and expenses incurred in good faith in connection with his obligations hereunder by the Shareholders’ Representative in connection therewithshall be paid by the Shareholders and Optionholders and each Shareholder and Optionholder shall be severally liable for such fees. Furthermore, if any such fees or expenses are outstanding and unpaid as of the first or second anniversary of the Closing Date, then, after fifteen (15) arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, except days’ prior written notice to the extent that any such liabilityShareholders (with a copy to Parent), loss, damage, penalty, or fine, cost or expense is the proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative Expense Fund shall be available to indemnify and hold the Shareholders’ Representative harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Shareholders’ Representative arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, except to the extent that any such liability, loss, damage, penalty, fine, cost or expense is the proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by withhold from the Shareholders’ Representative in connection with actions taken by the Shareholders’ Representative pursuant to the terms of Section 2.4 First Installment Payment or the Escrow Agreement (including the hiring of legal counsel Second Installment Payment, as applicable and the incurring of legal if paid, amounts sufficient to compensate him for such outstanding and unpaid fees and costs) from the Shareholders’ Representative Expense Fundor expenses.
(c) From and after the Closing, Buyer shall cause the Company to provide the Shareholders’ Representative with reasonable access to information about the Company and the reasonable assistance of the officers and employees of Buyer and the Company for purposes of performing its duties and exercising its rights under this Agreement, provided that the Shareholders’ Representative shall treat confidentially any nonpublic information about the Company (except in connection with the performance by the Shareholders’ Representative of its duties or the exercise of its rights under this Agreement).
(d) From and after the Closing, a decision, act, consent or instruction of the Shareholders’ Representative shall constitute a decision of all the Sellers and shall be final, binding and conclusive upon each Seller, and the Escrow Agent and Buyer may rely upon any decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of each Seller. Buyer is hereby relieved from any liability to any Person for any acts done by Buyer in accordance with any such decision, act, consent or instruction of the Shareholders’ Representative.
Appears in 1 contract
Shareholders’ Representative. (a) By virtue of To the execution of this Agreement extent permitted by Law, the SellersShareholders hereby irrevocably appoint the Shareholders’ Representative as the representative, and without further action of any Selleragent, each Seller shall be deemed to have irrevocably constituted and appointed GSH (and by execution of this Agreement it hereby accepts such appointment) as agent proxy, and attorney-in-fact (“for all the Shareholders for all purposes under this Agreement including the full power and authority on the Shareholders’ Representative”behalf: (i) for to consummate the transactions contemplated by this Agreement including the execution and delivery of all other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (ii) to negotiate disputes arising under, or relating to, this Agreement, and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (iii) to receive and disburse to the Shareholders any funds received on behalf of the Sellers Shareholders under this Agreement, or otherwise, (in their capacity as shareholders iv) to withhold any amounts received on behalf of the Company)Shareholders pursuant to this Agreement, with full power of substitution, or otherwise to act in the name, place satisfy any and stead of each Seller with respect to Section 2.4 and the Escrow Agreement and the taking all obligations or liabilities incurred by the Shareholders’ Representative in the performance of its duties hereunder, (v) to execute and deliver any and all actions amendment or waiver to this Agreement, and the making other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of any decisions required or permitted the Shareholders), and (vi) to take all other actions to be taken by the Shareholders’ Representative under Section 2.4 and the Escrow Agreement (it being understood that the Sellers shall have no right to pursue any claim or on behalf of any Company Indemnified Party the Shareholders in respect of connection with this Agreement, and the rights granted to Company Indemnified Parties under Section 7.1)other agreements, instruments, and documents contemplated hereby or executed in connection herewith. The power of attorney granted in this
Section 13.1 (a) is Shareholders, by executing this Agreement, further agree that such agency and proxy are coupled with an interest and is irrevocableinterest, may be delegated by are therefore irrevocable without the consent of the Shareholders’ Representative and shall survive the saledeath, transfer, merger, reorganizationincapacity, bankruptcy, liquidation, dissolution, death or incapacity liquidation of each Sellerany Shareholder. Such agency may be changed All decisions and actions by the holders of a majority in interest of the Escrow Fund from time to time (including in the event of the death, disability or other incapacity of a Shareholders’ Representative that is an individual), and any such successor shall succeed the Shareholders’ Representative as Shareholders’ Representative hereunder. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall receive be binding upon all of the Shareholders, and no compensation Shareholder shall have the right to object, dissent, protest, or otherwise contest the same. The Shareholders’ Representative shall have no duties or obligations hereunder except those set forth herein and such duties and obligations shall be determined solely by the express provisions of this Agreement.
(b) Each Shareholder hereby severally, for its services. At any time from the Closing Date until payment of any remaining amounts in itself only and not jointly, agrees to indemnify and hold harmless the Shareholders’ Representative Expense Fund in accordance with Section 2.4(c)(i)and his agents and assigns against all liabilities, the amount of documented costs claims, actions, damages, losses, and expenses (including all legal and other professional fees and disbursements expenses, and litigation costs) of counselany kind (whether known or unknown, financial advisors and accountantsfixed or contingent) incurred by the (“Shareholders’ Representative Expenses”) arising out of or in connection with the performance of its rights or obligations under this Agreement and the taking of any and all actions in connection therewith, shall be paid to the Shareholders’ Representative from the Shareholders’ Representative Expense Fund. In connection with the performance of its rights and obligations under this Agreement and the Escrow Agreement and the taking of any and all actions in connection therewith, the Shareholders’ Representative shall not be required to expend any of the amounts held in the Shareholders’ Representative Expense Fund (though, for the avoidance of doubt, it may do so at any time and from time to time in its sole discretion) and in no event shall the Shareholders’ Representative be required to incur any costs or expenses or expend any amount in excess of amounts held in the Shareholders’ Representative Expense Fund. Notwithstanding the foregoing, (i) the Shareholders’ Representative may retain Representative’s omissions to act, or actions taken, resulting from, arising out of, or incurred in connection with, or otherwise with respect to this Agreement, or (ii) services taken with respect to this Agreement or believed to be in the scope of the Shareholders’ Representative Expense Fundor his agents and assigns authority, in accordance with the terms of this Agreement, any amount provided that the Shareholders’ Representative deems has not acted with fraud, in its reasonable discretion to be necessary to satisfy each case as any documented costs and expenses (including all fees and disbursements of counsel, financial advisors and accountants) incurred or to be incurred by the such Shareholders’ Representative in connection with the performance of its rights Expenses is suffered or obligations under this Agreement and the Escrow Agreement and the taking of any and all actions in connection therewith and (ii) to the extent that funds are no longer available in the Shareholders’ Representative Expense Fund, the incurred. The Shareholders’ Representative shall not have recourse against each Seller directly for such costs and expenses (it being understood that and agreed that by reason of this Agreement a fiduciary relationship in respect of any such recourse shall be against each Seller, severally and not jointly, in accordance with the percentage of the aggregate Purchase Price received by or attributable to such Seller as of such date).
(b) Shareholder. The Shareholders’ Representative shall not be liable to any Person Shareholder for any act of action taken or omitted by the Shareholders’ Representative arising out of or any agent employed by the Shareholders’ Representative hereunder or under any other document or instrument contemplated hereby, or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement (it being understood that any act done or omitted pursuant to the advice of legal counsel shall be conclusive evidence of such good faith and reasonable judgment)therewith, except to the extent any liability, loss, damage, penalty, fine, cost or expense is actually incurred by such Person as a proximate result of the fraud or bad faith of that the Shareholders’ RepresentativeRepresentative shall not be relieved of any liability imposed by law for fraud. The Shareholders’ Representative shall not be liable for, and shall be indemnified by the Sellers for, to any liability, loss, damage, penalty, or fine incurred by the Shareholders’ Representative (and any cost or expense incurred by the Shareholders’ Representative in connection therewith) arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, except to the extent that any such liability, loss, damage, penalty, or fine, cost or expense is the proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative Expense Fund shall be available to indemnify and hold the Shareholders’ Representative harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Shareholders’ Representative arising out of or Shareholders for action taken in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, except to the extent that any such liability, loss, damage, penalty, fine, cost or expense is the proximate result of the fraud or bad faith of the Shareholders’ Representativegood faith. The Shareholders’ Representative shall not be entitled required to recover make any out-of-pocket costs and expenses reasonably incurred by inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement. Neither the Shareholders’ Representative in connection with actions taken nor any agent employed by it shall incur any liability to any Shareholder by virtue of the failure or refusal of the Shareholders’ Representative pursuant for any reason to consummate the transactions contemplated hereby or relating to the terms performance of Section 2.4 its other duties hereunder, except for actions or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) from the Shareholders’ Representative Expense Fundomissions constituting fraud.
(c) From and after the Closing, Buyer shall cause the Company to provide If the Shareholders’ Representative with reasonable access resigns or is otherwise unable or unwilling to information about serve in such capacity, then the Company and the reasonable assistance of the officers and employees of Buyer and the Company Principal Shareholder will appoint a new Person to serve as a replacement for purposes of performing its duties and exercising its rights under this Agreement, provided that the such Shareholders’ Representative shall treat confidentially any nonpublic information about and will provide prompt written notice thereof to Tyler. Until such notice is received, Tyler will be entitled to rely on the Company (except in connection with actions and statements of the performance by the previous Shareholders’ Representative of its duties or the exercise of its rights under this Agreement).
(d) From and after the Closing, a decision, act, consent or instruction of all such actions and statements shall be binding on the Shareholders’ Representative shall constitute a decision of all the Sellers and shall be final, binding and conclusive upon each Seller, and the Escrow Agent and Buyer may rely upon any decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of each Seller. Buyer is hereby relieved from any liability to any Person for any acts done by Buyer in accordance with any such decision, act, consent or instruction of the Shareholders’ Representative.
Appears in 1 contract
Shareholders’ Representative. (a) By virtue In order to administer efficiently the rights and obligations of the execution of Shareholders under this Agreement by Agreement, the SellersShareholders hereby designate and appoint Clar▇ ▇▇ the Shareholders' Representative, and without further action of any Sellerto serve as the Shareholders' agent, each Seller shall be deemed to have irrevocably constituted and appointed GSH (and by execution of this Agreement it hereby accepts such appointment) as agent proxy and attorney-in-fact for the limited purposes set forth in this Agreement.
(“Shareholders’ Representative”b) for and on behalf Each of the Sellers (in their capacity Shareholders hereby appoints the Shareholders' Representative as shareholders of the Company)such Shareholder's agent, proxy and attorney-in-fact, with full power of substitution, to act for all purposes set forth in the namethis Agreement, place and stead of each Seller with respect to Section 2.4 and the Escrow Agreement and the taking by the Shareholders’ Representative of any and all actions and the making of any decisions required or permitted to be taken by the Shareholders’ Representative under Section 2.4 and the Escrow Agreement (it being understood that the Sellers shall have no right to pursue any claim on behalf of any Company Indemnified Party in respect of the rights granted to Company Indemnified Parties under Section 7.1). The power of attorney granted in this
Section 13.1 (a) is coupled with an interest and is irrevocableincluding, may be delegated by the Shareholders’ Representative and shall survive the sale, transfer, merger, reorganization, bankruptcy, liquidation, dissolution, death or incapacity of each Seller. Such agency may be changed by the holders of a majority in interest of the Escrow Fund from time to time (including in the event of the death, disability or other incapacity of a Shareholders’ Representative that is an individual), and any such successor shall succeed the Shareholders’ Representative as Shareholders’ Representative hereunder. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall receive no compensation for its services. At any time from the Closing Date until payment of any remaining amounts in the Shareholders’ Representative Expense Fund in accordance with Section 2.4(c)(i)without limitation, the amount of documented costs full power and expenses (including all fees and disbursements of counsel, financial advisors and accountants) incurred by the Shareholders’ Representative in connection with the performance of its rights or obligations under this Agreement and the taking of any and all actions in connection therewith, shall be paid to the Shareholders’ Representative from the Shareholders’ Representative Expense Fund. In connection with the performance of its rights and obligations under this Agreement and the Escrow Agreement and the taking of any and all actions in connection therewith, the Shareholders’ Representative shall not be required to expend any of the amounts held in the Shareholders’ Representative Expense Fund (though, for the avoidance of doubt, it may do so at any time and from time to time in its sole discretion) and in no event shall the Shareholders’ Representative be required to incur any costs or expenses or expend any amount in excess of amounts held in the Shareholders’ Representative Expense Fund. Notwithstanding the foregoing, authority on such Shareholder's behalf (i) to consummate the Shareholders’ Representative may retain in the Shareholders’ Representative Expense Fund, in accordance with the terms of transactions contemplated by this Agreement, any amount that the Shareholders’ Representative deems in its reasonable discretion to be necessary to satisfy any documented costs and expenses (including all fees and disbursements of counsel, financial advisors and accountants) incurred or to be incurred by the Shareholders’ Representative in connection with the performance of its rights or obligations under this Agreement and the Escrow Agreement and the taking of any and all actions in connection therewith and (ii) to the extent that disburse any funds are no longer available in received hereunder to the Shareholders’ Representative Expense Fund, the Shareholders’ Representative shall have recourse against (iii) to execute and deliver on behalf of each Seller directly for such costs and expenses (it being understood that and agreed that Shareholder any such recourse shall be against each Seller, severally and not jointly, in accordance with the percentage of the aggregate Purchase Price received by amendment or attributable to such Seller as of such date).
(b) The Shareholders’ Representative shall not be liable to any Person for any act of the Shareholders’ Representative arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement (it being understood that any act done or omitted pursuant to the advice of legal counsel shall be conclusive evidence of such good faith and reasonable judgment), except to the extent any liability, loss, damage, penalty, fine, cost or expense is actually incurred by such Person as a proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative shall not be liable for, and shall be indemnified by the Sellers for, any liability, loss, damage, penalty, or fine incurred by the Shareholders’ Representative (and any cost or expense incurred by the Shareholders’ Representative in connection therewith) arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, except to the extent that any such liability, loss, damage, penalty, or fine, cost or expense is the proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative Expense Fund shall be available to indemnify and hold the Shareholders’ Representative harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Shareholders’ Representative arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, except to the extent that any such liability, loss, damage, penalty, fine, cost or expense is the proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Shareholders’ Representative in connection with actions taken by the Shareholders’ Representative pursuant to the terms of Section 2.4 or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) from the Shareholders’ Representative Expense Fund.
(c) From and after the Closing, Buyer shall cause the Company to provide the Shareholders’ Representative with reasonable access to information about the Company and the reasonable assistance of the officers and employees of Buyer and the Company for purposes of performing its duties and exercising its rights waiver under this Agreement, provided that to agree to the amount of the actual Closing Date Debt, Closing Date Current Assets and Closing Date Current Liabilities pursuant to Section 1.2(a), and to agree to resolution of all Claims hereunder, (iv) to retain legal counsel and other professional services, at the expense of the Shareholders’ Representative shall treat confidentially any nonpublic information about the Company (except , in connection with the performance by the Shareholders’ ' Representative of its duties this Agreement, and (v) to do each and every act and exercise any and all rights which such Shareholder or Shareholders are permitted or required to do or exercise under this Agreement and the exercise other agreements, documents and certificates executed in connection herewith. Each of its rights the Shareholders agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Shareholders' Representative and shall survive the death, bankruptcy or other incapacity of any Shareholder.
(c) Each of the Shareholders hereby agrees that any amendment or waiver under this Agreement, and any action taken on behalf of the Shareholders to enforce the rights of the Shareholders under this Agreement, and any action taken with respect to any adjustment or Claim (including any action taken to object to, defend, compromise or agree to the payment of such adjustment or Claim), shall be effective if approved in writing by persons who were the holders of a majority of the Corporation's Stock immediately prior to the Closing, and that each and every action so taken shall be binding and conclusive on every Shareholder, whether or not such Shareholder had notice of, or approved, such amendment or waiver.
(d) From and after Clar▇ ▇▇▇ll serve as the Shareholders' Representative until he resigns or is otherwise unable or unwilling to serve. In the event that a Shareholders' Representative resigns from such position or is otherwise unable or unwilling to serve, the remaining Shareholders shall select, by the vote of the holders of a majority of the Corporation's Stock immediately prior to the Closing, a decisionsuccessor representative to fill such vacancy, act, consent or instruction shall provide prompt written notice to WCI of such change and such substituted representative shall then be deemed to be the Shareholders’ ' Representative shall constitute a decision for all purposes of all the Sellers and shall be final, binding and conclusive upon each Seller, and the Escrow Agent and Buyer may rely upon any decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of each Seller. Buyer is hereby relieved from any liability to any Person for any acts done by Buyer in accordance with any such decision, act, consent or instruction of the Shareholders’ Representativethis Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Waste Connections Inc/De)
Shareholders’ Representative. (a) By virtue In order to administer efficiently the rights and obligations of the execution of Shareholders under this Agreement by Agreement, the SellersShareholders hereby designate and appoint Dupreau as the Shareholders' Representative, and without further action of any Sellerto serve as the Shareholders' agent, each Seller shall be deemed to have irrevocably constituted and appointed GSH (and by execution of this Agreement it hereby accepts such appointment) as agent proxy and attorney-in-fact for the limited purposes set forth in this Agreement.
(“Shareholders’ Representative”b) for and on behalf Each of the Sellers (in their capacity Shareholders hereby appoints the Shareholders' Representative as shareholders of the Company)such Shareholder's agent, proxy and attorney-in-fact, with full power of substitution, to act for all purposes set forth in the namethis Agreement, place and stead of each Seller with respect to Section 2.4 and the Escrow Agreement and the taking by the Shareholders’ Representative of any and all actions and the making of any decisions required or permitted to be taken by the Shareholders’ Representative under Section 2.4 and the Escrow Agreement (it being understood that the Sellers shall have no right to pursue any claim on behalf of any Company Indemnified Party in respect of the rights granted to Company Indemnified Parties under Section 7.1). The power of attorney granted in this
Section 13.1 (a) is coupled with an interest and is irrevocableincluding, may be delegated by the Shareholders’ Representative and shall survive the sale, transfer, merger, reorganization, bankruptcy, liquidation, dissolution, death or incapacity of each Seller. Such agency may be changed by the holders of a majority in interest of the Escrow Fund from time to time (including in the event of the death, disability or other incapacity of a Shareholders’ Representative that is an individual), and any such successor shall succeed the Shareholders’ Representative as Shareholders’ Representative hereunder. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall receive no compensation for its services. At any time from the Closing Date until payment of any remaining amounts in the Shareholders’ Representative Expense Fund in accordance with Section 2.4(c)(i)without limitation, the amount of documented costs full power and expenses (including all fees and disbursements of counsel, financial advisors and accountants) incurred by the Shareholders’ Representative in connection with the performance of its rights or obligations under this Agreement and the taking of any and all actions in connection therewith, shall be paid to the Shareholders’ Representative from the Shareholders’ Representative Expense Fund. In connection with the performance of its rights and obligations under this Agreement and the Escrow Agreement and the taking of any and all actions in connection therewith, the Shareholders’ Representative shall not be required to expend any of the amounts held in the Shareholders’ Representative Expense Fund (though, for the avoidance of doubt, it may do so at any time and from time to time in its sole discretion) and in no event shall the Shareholders’ Representative be required to incur any costs or expenses or expend any amount in excess of amounts held in the Shareholders’ Representative Expense Fund. Notwithstanding the foregoing, authority on such Shareholder's behalf (i) to consummate the Shareholders’ Representative may retain in the Shareholders’ Representative Expense Fund, in accordance with the terms of transactions contemplated by this Agreement, any amount that the Shareholders’ Representative deems in its reasonable discretion to be necessary to satisfy any documented costs and expenses (including all fees and disbursements of counsel, financial advisors and accountants) incurred or to be incurred by the Shareholders’ Representative in connection with the performance of its rights or obligations under this Agreement and the Escrow Agreement and the taking of any and all actions in connection therewith and (ii) to the extent that disburse any funds are no longer available in received hereunder to the Shareholders’ Representative Expense Fund, the Shareholders’ Representative shall have recourse against (iii) to execute and deliver on behalf of each Seller directly for such costs and expenses (it being understood that and agreed that Shareholder any such recourse shall be against each Seller, severally and not jointly, in accordance with the percentage of the aggregate Purchase Price received by amendment or attributable to such Seller as of such date).
(b) The Shareholders’ Representative shall not be liable to any Person for any act of the Shareholders’ Representative arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement (it being understood that any act done or omitted pursuant to the advice of legal counsel shall be conclusive evidence of such good faith and reasonable judgment), except to the extent any liability, loss, damage, penalty, fine, cost or expense is actually incurred by such Person as a proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative shall not be liable for, and shall be indemnified by the Sellers for, any liability, loss, damage, penalty, or fine incurred by the Shareholders’ Representative (and any cost or expense incurred by the Shareholders’ Representative in connection therewith) arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, except to the extent that any such liability, loss, damage, penalty, or fine, cost or expense is the proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative Expense Fund shall be available to indemnify and hold the Shareholders’ Representative harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Shareholders’ Representative arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, except to the extent that any such liability, loss, damage, penalty, fine, cost or expense is the proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Shareholders’ Representative in connection with actions taken by the Shareholders’ Representative pursuant to the terms of Section 2.4 or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) from the Shareholders’ Representative Expense Fund.
(c) From and after the Closing, Buyer shall cause the Company to provide the Shareholders’ Representative with reasonable access to information about the Company and the reasonable assistance of the officers and employees of Buyer and the Company for purposes of performing its duties and exercising its rights waiver under this Agreement, provided that to agree to the amount of the actual Closing Date Debt, Closing Date Current Assets and Closing Date Current Liabilities pursuant to Section 1.2(a), and to agree to resolution of all Claims hereunder, (iv) to retain legal counsel and other professional services, at the expense of the Shareholders’ Representative shall treat confidentially any nonpublic information about the Company (except , in connection with the performance by the Shareholders’ ' Representative of its duties this Agreement, and (v) to do each and every act and exercise any and all rights which such Shareholder or Shareholders are permitted or required to do or exercise under this Agreement and the exercise other agreements, documents and certificates executed in connection herewith. Each of its rights the Shareholders agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Shareholders' Representative and shall survive the death, bankruptcy or other incapacity of any Shareholder.
(c) Each of the Shareholders hereby agrees that any amendment or waiver under this Agreement, and any action taken on behalf of the Shareholders to enforce the rights of the Shareholders under this Agreement, and any action taken with respect to any adjustment or Claim (including any action taken to object to, defend, compromise or agree to the payment of such adjustment or Claim), shall be effective if approved in writing by the Shareholders' Representative and the holders of a majority of the Corporation's Stock (including any Corporation's Stock held by the Shareholders' Representative), or, in the case of any amendment or waiver made or given or action taken after the Closing, if so approved by persons who were the holders of a majority of the Corporation's Stock immediately prior to the Closing, and that each and every action so taken shall be binding and conclusive on every Shareholder, whether or not such Shareholder had notice of, or approved, such amendment or waiver.
(d) From and after Dupreau shall serve as the Shareholders' Representative until he resigns or is otherwise unable or unwilling to serve. In the event that a Shareholders' Representative resigns from such position or is otherwise unable or unwilling to serve, the remaining Shareholders shall select, by the vote of the holders of a majority of the Corporation's Stock immediately prior to the Closing, a decisionsuccessor representative to fill such vacancy, act, consent or instruction shall provide prompt written notice to WCI of the Shareholders’ Representative shall constitute a decision of all the Sellers such change and shall be final, binding and conclusive upon each Seller, and the Escrow Agent and Buyer may rely upon any decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of each Seller. Buyer is hereby relieved from any liability to any Person for any acts done by Buyer in accordance with any such decision, act, consent or instruction of the Shareholders’ Representative.such
Appears in 1 contract
Sources: Stock Purchase Agreement (Waste Connections Inc/De)
Shareholders’ Representative. The Shareholders hereby irrevocably appoint ▇▇▇▇▇ ▇. ▇▇▇▇ (a) By virtue of the execution of this Agreement by the Sellers, and without further action of any Seller, each Seller shall be deemed to have irrevocably constituted and appointed GSH (and by execution of this Agreement it hereby accepts such appointment"Shareholders' Representative") as agent the representative, agent, proxy, and attorney-in-fact for all the Shareholders for all purposes under this Agreement, including the full power and authority on the Shareholders' behalf: (“i) to consummate the transactions contemplated by this Agreement, including the execution and delivery of the agreements, certificates, instruments, and other documents contemplated hereby or executed or delivered in connection herewith, (ii) to negotiate disputes arising under, or relating to, this Agreement and the other agreements, certificates, instruments, and documents contemplated hereby or executed or delivered in connection herewith, (iii) to execute and deliver any amendment or waiver to this Agreement or any of the other agreements, certificates, instruments, and documents contemplated hereby or executed or delivered in connection herewith (without the prior approval of the Shareholders’ Representative”), (iv) for and to take all other actions to be taken by or on behalf of the Sellers Shareholders in connection with this Agreement (in their capacity as shareholders including the exercise of the Company), with full power of substitution, to act in the name, place and stead of each Seller with respect to Section 2.4 any rights and the Escrow Agreement performance of any obligations pursuant to Article 6) and the taking by the Shareholders’ Representative of any other agreements, certificates, instruments, and all actions and the making of any decisions required documents contemplated hereby or permitted to be taken by the Shareholders’ Representative under Section 2.4 and the Escrow Agreement (it being understood that the Sellers shall have no right to pursue any claim on behalf of any Company Indemnified Party executed or delivered in respect of the rights granted to Company Indemnified Parties under Section 7.1)connection herewith. The power of attorney granted in this
Section 13.1 (a) is Shareholders further agree that such agency and proxy are coupled with an interest and is irrevocableinterest, may be delegated by are therefore irrevocable without the consent of the Shareholders’ Representative ' Representative, and shall survive the saledeath, transfer, merger, reorganizationincapacity, bankruptcy, liquidation, dissolution, death or incapacity liquidation of each Sellerany Shareholder. Such agency may be changed All decisions and actions by the holders of a majority in interest of the Escrow Fund from time to time (including in the event of the death, disability or other incapacity of a Shareholders’ ' Representative that is an individual), and any such successor shall succeed the Shareholders’ Representative as Shareholders’ Representative hereunder. No bond shall be required binding upon all of the Shareholders’ Representative, and no Shareholder shall have the right to object, dissent, protest, or otherwise contest the same. The Shareholders’ Representative shall receive no compensation for its services. At any time from the Closing Date until payment of any remaining amounts in the Shareholders’ Representative Expense Fund in accordance with Section 2.4(c)(i), the amount of documented costs and expenses (including all fees and disbursements of counsel, financial advisors and accountants) incurred by the Shareholders’ Representative in connection with the performance of its rights or obligations under this Agreement and the taking of any and all actions in connection therewith, shall be paid to the Shareholders’ Representative from the Shareholders’ Representative Expense Fund. In connection with the performance of its rights and obligations under this Agreement and the Escrow Agreement and the taking of any and all actions in connection therewith, the Shareholders’ Representative shall not be required to expend any of the amounts held in the Shareholders’ Representative Expense Fund (though, for the avoidance of doubt, it may do so at any time and from time to time in its sole discretion) and in no event shall the Shareholders’ Representative be required to incur any costs or expenses or expend any amount in excess of amounts held in the Shareholders’ Representative Expense Fund. Notwithstanding the foregoing, (i) the Shareholders’ Representative may retain in the Shareholders’ Representative Expense Fund, in accordance with the terms of this Agreement, any amount that the Shareholders’ Representative deems in its reasonable discretion to be necessary to satisfy any documented costs and expenses (including all fees and disbursements of counsel, financial advisors and accountants) incurred or to be incurred by the Shareholders’ Representative in connection with the performance of its rights or obligations under this Agreement and the Escrow Agreement and the taking of any and all actions in connection therewith and (ii) to the extent that funds are no longer available in the Shareholders’ Representative Expense Fund, the Shareholders’ ' Representative shall have recourse no Liability in respect of any action, claim, or proceeding brought against each Seller directly for such costs and expenses (it being understood that and agreed that any such recourse shall be against each Seller, severally and not jointly, in accordance with the percentage of the aggregate Purchase Price received by or attributable to such Seller as of such date).
(b) The Shareholders’ Representative shall not be liable to any Person for any act of the Shareholders’ ' Representative arising out of or in connection with by any Shareholder if the acceptance or administration of its duties under this Agreement and the Escrow Agreement (it being understood that any act done Shareholders' Representative took or omitted pursuant to the advice of legal counsel shall be conclusive evidence of such taking any action in good faith and reasonable judgment), except to the extent any liability, loss, damage, penalty, fine, cost or expense is actually incurred by such Person as a proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative shall not be liable for, and shall be indemnified by the Sellers for, any liability, loss, damage, penalty, or fine incurred by the Shareholders’ Representative (and any cost or expense incurred by the Shareholders’ Representative in connection therewith) arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, except to the extent that any such liability, loss, damage, penalty, or fine, cost or expense is the proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative Expense Fund shall be available to indemnify and hold the Shareholders’ Representative harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Shareholders’ Representative arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, except to the extent that any such liability, loss, damage, penalty, fine, cost or expense is the proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Shareholders’ Representative in connection with actions taken by the Shareholders’ Representative pursuant to the terms of Section 2.4 or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) from the Shareholders’ Representative Expense Fundfaith.
(c) From and after the Closing, Buyer shall cause the Company to provide the Shareholders’ Representative with reasonable access to information about the Company and the reasonable assistance of the officers and employees of Buyer and the Company for purposes of performing its duties and exercising its rights under this Agreement, provided that the Shareholders’ Representative shall treat confidentially any nonpublic information about the Company (except in connection with the performance by the Shareholders’ Representative of its duties or the exercise of its rights under this Agreement).
(d) From and after the Closing, a decision, act, consent or instruction of the Shareholders’ Representative shall constitute a decision of all the Sellers and shall be final, binding and conclusive upon each Seller, and the Escrow Agent and Buyer may rely upon any decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of each Seller. Buyer is hereby relieved from any liability to any Person for any acts done by Buyer in accordance with any such decision, act, consent or instruction of the Shareholders’ Representative.
Appears in 1 contract
Shareholders’ Representative. (a) By virtue In order to administer efficiently the rights and obligations of the execution of Shareholders under this Agreement by Agreement, the SellersShareholders hereby designate and appoint Timo▇▇▇ ▇▇▇▇▇▇ ▇▇ the Shareholders' Representative, and without further action of any Sellerto serve as the Shareholders' agent, each Seller shall be deemed to have irrevocably constituted and appointed GSH (and by execution of this Agreement it hereby accepts such appointment) as agent proxy and attorney-in-fact for the limited purposes set forth in this Agreement.
(“Shareholders’ Representative”b) for and on behalf Each of the Sellers (in their capacity Shareholders hereby appoints the Shareholders' Representative as shareholders of the Company)such Shareholder's agent, proxy and attorney-in-fact, with full power of substitution, to act for all purposes set forth in the namethis Agreement, place and stead of each Seller with respect to Section 2.4 and the Escrow Agreement and the taking by the Shareholders’ Representative of any and all actions and the making of any decisions required or permitted to be taken by the Shareholders’ Representative under Section 2.4 and the Escrow Agreement (it being understood that the Sellers shall have no right to pursue any claim on behalf of any Company Indemnified Party in respect of the rights granted to Company Indemnified Parties under Section 7.1). The power of attorney granted in this
Section 13.1 (a) is coupled with an interest and is irrevocableincluding, may be delegated by the Shareholders’ Representative and shall survive the sale, transfer, merger, reorganization, bankruptcy, liquidation, dissolution, death or incapacity of each Seller. Such agency may be changed by the holders of a majority in interest of the Escrow Fund from time to time (including in the event of the death, disability or other incapacity of a Shareholders’ Representative that is an individual), and any such successor shall succeed the Shareholders’ Representative as Shareholders’ Representative hereunder. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall receive no compensation for its services. At any time from the Closing Date until payment of any remaining amounts in the Shareholders’ Representative Expense Fund in accordance with Section 2.4(c)(i)without limitation, the amount of documented costs full power and expenses (including all fees and disbursements of counsel, financial advisors and accountants) incurred by the Shareholders’ Representative in connection with the performance of its rights or obligations under this Agreement and the taking of any and all actions in connection therewith, shall be paid to the Shareholders’ Representative from the Shareholders’ Representative Expense Fund. In connection with the performance of its rights and obligations under this Agreement and the Escrow Agreement and the taking of any and all actions in connection therewith, the Shareholders’ Representative shall not be required to expend any of the amounts held in the Shareholders’ Representative Expense Fund (though, for the avoidance of doubt, it may do so at any time and from time to time in its sole discretion) and in no event shall the Shareholders’ Representative be required to incur any costs or expenses or expend any amount in excess of amounts held in the Shareholders’ Representative Expense Fund. Notwithstanding the foregoing, authority on such Shareholder's behalf (i) to consummate the Shareholders’ Representative may retain in the Shareholders’ Representative Expense Fund, in accordance with the terms of transactions contemplated by this Agreement, any amount that the Shareholders’ Representative deems in its reasonable discretion to be necessary to satisfy any documented costs and expenses (including all fees and disbursements of counsel, financial advisors and accountants) incurred or to be incurred by the Shareholders’ Representative in connection with the performance of its rights or obligations under this Agreement and the Escrow Agreement and the taking of any and all actions in connection therewith and (ii) to the extent that disburse any funds are no longer available in received hereunder to the Shareholders’ Representative Expense Fund, the Shareholders’ Representative shall have recourse against (iii) to execute and deliver on behalf of each Seller directly for such costs and expenses (it being understood that and agreed that Shareholder any such recourse shall be against each Seller, severally and not jointly, in accordance with the percentage of the aggregate Purchase Price received by amendment or attributable to such Seller as of such date).
(b) The Shareholders’ Representative shall not be liable to any Person for any act of the Shareholders’ Representative arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement (it being understood that any act done or omitted pursuant to the advice of legal counsel shall be conclusive evidence of such good faith and reasonable judgment), except to the extent any liability, loss, damage, penalty, fine, cost or expense is actually incurred by such Person as a proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative shall not be liable for, and shall be indemnified by the Sellers for, any liability, loss, damage, penalty, or fine incurred by the Shareholders’ Representative (and any cost or expense incurred by the Shareholders’ Representative in connection therewith) arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, except to the extent that any such liability, loss, damage, penalty, or fine, cost or expense is the proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative Expense Fund shall be available to indemnify and hold the Shareholders’ Representative harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Shareholders’ Representative arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, except to the extent that any such liability, loss, damage, penalty, fine, cost or expense is the proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Shareholders’ Representative in connection with actions taken by the Shareholders’ Representative pursuant to the terms of Section 2.4 or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) from the Shareholders’ Representative Expense Fund.
(c) From and after the Closing, Buyer shall cause the Company to provide the Shareholders’ Representative with reasonable access to information about the Company and the reasonable assistance of the officers and employees of Buyer and the Company for purposes of performing its duties and exercising its rights waiver under this Agreement, provided that to agree to the amount of the actual Closing Date Debt, Closing Date Current Assets and Closing Date Current Liabilities pursuant to Section 1.2(a), and to agree to resolution of all Claims hereunder, (iv) to retain legal counsel and other professional services, at the expense of the Shareholders’ Representative shall treat confidentially any nonpublic information about the Company (except , in connection with the performance by the Shareholders’ ' Representative of its duties this Agreement, and (v) to do each and every act and exercise any and all rights which such Shareholder or Shareholders are permitted or required to do or exercise under this Agreement and the exercise other agreements, documents and certificates executed in connection herewith. Each of its rights the Shareholders agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Shareholders' Representative and shall survive the death, bankruptcy or other incapacity of any Shareholder.
(c) Each of the Shareholders hereby agrees that any amendment or waiver under this Agreement, and any action taken on behalf of the Shareholders to enforce the rights of the Shareholders under this Agreement, and any action taken with respect to any adjustment or Claim (including any action taken to object to, defend, compromise or agree to the payment of such adjustment or Claim), shall be effective if approved in writing by persons who were the holders of a majority of the Corporation's Stock immediately prior to the Closing, and that each and every action so taken shall be binding and conclusive on every Shareholder, whether or not such Shareholder had notice of, or approved, such amendment or waiver.
(d) From and after Timo▇▇▇ ▇▇▇▇▇▇ ▇▇▇ll serve as the Shareholders' Representative until he resigns or is otherwise unable or unwilling to serve. In the event that a Shareholders' Representative resigns from such position or is otherwise unable or unwilling to serve, the remaining Shareholders shall select, by the vote of the holders of a majority of the Corporation's Stock immediately prior to the Closing, a decisionsuccessor representative to fill such vacancy, act, consent or instruction shall provide prompt written notice to WCI of such change and such substituted representative shall then be deemed to be the Shareholders’ ' Representative shall constitute a decision for all purposes of all the Sellers and shall be final, binding and conclusive upon each Seller, and the Escrow Agent and Buyer may rely upon any decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of each Seller. Buyer is hereby relieved from any liability to any Person for any acts done by Buyer in accordance with any such decision, act, consent or instruction of the Shareholders’ Representativethis Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Waste Connections Inc/De)