Common use of Unitholder Representative Clause in Contracts

Unitholder Representative. (a) Immediately upon the approval of this Agreement by the requisite vote or written consent of the Unitholders, each Unitholder and RSU Holder shall be deemed to have consented to the appointment of the Company, prior to the Closing, and Shareholder Representative Services LLC, a Colorado limited liability company, as of the Closing, as such holder’s representative, agent and attorney-in-fact (the “Unitholder Representative”), with full power of substitution to act on behalf of the Unitholders and the RSU Holders to the extent and in the manner set forth in this Agreement for all purposes in connection with this Agreement and any applicable Ancillary Agreements. All decisions, actions, consents and instructions by the Unitholder Representative shall be binding upon all of the Unitholders and RSU Holders, and no Unitholder or RSU Holder shall have the right to object to, dissent from, protest or otherwise contest the same. The Unitholder Representative shall have the right to enforce and protect the rights and interests of each Unitholder and RSU Holder and to enforce and protect the rights and interests of the Unitholder Representative arising out of or under or in any manner relating to this Agreement and each other agreement, instrument, certificate or other document referred to herein or the transactions provided for herein, including, after the Closing, enforcing the performance of Acquiror and the Surviving Company of their obligations under this Agreement. The Acquiror shall not have the right to object to, dissent from, protest or otherwise contest the authority of the Unitholder Representative to act on behalf of the Unitholders and the RSU Holders as provided herein. The Acquiror and Sub shall be entitled to rely on any decision, action, consent or instruction of the Unitholder Representative as being the decision, action, consent or instruction of the Unitholders and the RSU Holders, and the Acquiror and Sub are hereby relieved from any Liability to any Person for acts done by them in accordance with any such decision, act, consent or instruction. (b) The Unitholder Representative will incur no liability in connection with its services pursuant to this Agreement and any applicable Ancillary Agreements except to the extent resulting from its gross negligence or willful misconduct. The Unitholder Representative shall not be liable for any action or omission pursuant to the advice of counsel, except to the extent arising from its gross negligence or willful misconduct. The Unitholders and RSU Holders shall indemnify the Unitholder Representative against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”{xe "Representative Losses" \t "2.14(b)"}) arising out of or in connection with this Agreement and any related agreements, 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 caused by the gross negligence or willful misconduct of the Unitholder Representative, the Unitholder Representative will reimburse the Unitholders and RSU Holders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. Representative Losses may be recovered by the Unitholder Representative from (i) the funds in the Unitholder Representative Expense Holdback Amount and (ii) any other funds that become payable to the Unitholders and RSU Holders under this Agreement at such time as such amounts would otherwise be distributable to the Unitholders and RSU Holders; provided, that while the Unitholder Representative may be paid from the aforementioned sources of funds, this does not relieve the Unitholders and RSU Holders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Unitholder Representative be required to advance its own funds on behalf of the Unitholders and RSU Holders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Unitholders and RSU Holders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Unitholder Representative hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Unitholder Representative or the termination of this Agreement. (c) Upon the Closing, the Acquiror will wire the Unitholder Representative Expense Holdback Amount to the Unitholder Representative in accordance with this Section 2.14(c), which will be used for any expenses incurred by the Unitholder Representative in the performance of its duties hereunder. The Unitholders and RSU Holders will not receive any interest or earnings on the Unitholder Representative Expense Holdback Amount and irrevocably transfer and assign to the Unitholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Unitholder Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Unitholder Representative’s responsibilities, as set forth in this Agreement and the applicable Ancillary Agreements, the Unitholder Representative will deliver any remaining balance of the Unitholder Representative Expense Holdback Amount to the Paying Agent for delivery to the Unitholders and RSU Holders (which, in the case of the Employee RSU Holders, will be delivered through payment to the Surviving Company which will be paid through payroll). For tax purposes, the Unitholder Representative Expense Holdback Amount will be treated as having been received and voluntarily set aside by the Unitholders and RSU Holders at the time of Closing. (d) The Unitholder Representative may resign at any time, and may be removed for any reason or no reason by the vote or written consent of Unitholders holding a majority of the aggregate Percentage Interests at the Effective Time (the “Majority Holders”). In the event of the death, incapacity, resignation or removal of the Unitholder Representative, a new Unitholder Representative shall be appointed by the vote or written consent of the Majority Holders within ten (10) Business Days. Notice of such vote or a copy of the written consent appointing such new Unitholder Representative shall be sent to the Acquiror and, after the Effective Time, to the Surviving Company, such appointment to be effective upon the later of the date indicated in such consent or the date such consent is received by the Acquiror and, after the Effective Time, the Surviving Company. (e) The approval of this Agreement by the requisite vote or written consent of Unitholders shall also be deemed to constitute approval of all arrangements relating to the transactions contemplated hereby and to the provisions hereof binding upon the Unitholders.

Unitholder Representative. (a) Immediately upon the approval By their execution of this Agreement by Agreement, the requisite vote or written consent of the Unitholders, each Unitholder Existing Unitholders and RSU Holder Owners shall be deemed deemed, for themselves and their personal representatives and other successors, to have consented to the appointment of the Companyconstituted and appointed, prior to effective from and after the Closing, and Shareholder Representative Services MVH 18, LLC, a Colorado Utah limited liability company, as of the Closing, as such holder’s representative, their agent and attorney-in-fact (the “Unitholder Representative”), with full power of substitution ) to act take all action required or permitted under this Agreement and the Escrow Agreement on behalf of the Existing Unitholders and Owners, the RSU Holders to giving and receiving of all notices and consents and the extent execution and in delivery of the manner set forth in this Agreement for Escrow agreement and all purposes other documents, including any amendments of any non-material term or provision hereof, and the execution and delivery of any agreements and releases in connection with this Agreement the settlement of any dispute or claim under Article 9 hereof and any applicable Ancillary Agreements. All decisions, actions, consents and instructions by the Unitholder Representative shall be binding upon all of the Unitholders and RSU Holders, and no Unitholder or RSU Holder shall have the right to object to, dissent from, protest or otherwise contest the same. The Unitholder Representative shall have the right to enforce and protect the rights and interests of each Unitholder and RSU Holder and to enforce and protect the rights and interests of the Unitholder Representative arising out of or under or in any manner relating to this Agreement and each other agreement, instrument, certificate or other document referred to herein or the transactions provided for herein, including, after the Closing, enforcing the performance of Acquiror and the Surviving Company of their obligations under this Agreement. The Acquiror shall not have the right to object to, dissent from, protest or otherwise contest the authority of the Unitholder Representative to act on behalf of the Unitholders and the RSU Holders as provided elsewhere herein. The Acquiror and Sub shall be entitled to rely on any decision, action, consent or instruction of the Unitholder Representative as being the decision, action, consent or instruction of the Unitholders and the RSU Holders, and the Acquiror and Sub are hereby relieved from any Liability to any Person for acts done by them in accordance with any such decision, act, consent or instruction. (b) The In the event of the death, physical or mental incapacity or resignation of the Unitholder Representative, the Existing Unitholders shall, or for any other reason, the Existing Unitholders may appoint, by majority vote of the Existing Unitholders, a further substitute or substitutes and shall advise Symbion and the Company thereof. As between the Unitholder Representative will incur no liability and the Existing Unitholders, the Unitholder Representative shall not be liable for, and shall be indemnified by the Existing Unitholders or provided with insurance against, any good faith error of judgment on its part or any other act done or omitted by it in good faith in connection with its services pursuant to this Agreement and any applicable Ancillary Agreements duties as Unitholder Representative, except to the extent resulting from its for gross negligence or willful misconduct. The Unitholder Representative may consult with professional advisors of its choice. The Unitholder Representative shall not be liable responsible for the genuineness or validity of any action or omission pursuant to the advice of counsel, except to the extent arising from its gross negligence or willful misconduct. The Unitholders document and RSU Holders shall indemnify the Unitholder Representative against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”{xe "Representative Losses" \t "2.14(b)"}) arising out of or in connection with this Agreement and any related agreements, 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 caused by the gross negligence or willful misconduct of the Unitholder Representative, the Unitholder Representative will reimburse the Unitholders and RSU Holders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. Representative Losses may be recovered by the Unitholder Representative from (i) the funds in the Unitholder Representative Expense Holdback Amount and (ii) any other funds that become payable to the Unitholders and RSU Holders under this Agreement at such time as such amounts would otherwise be distributable to the Unitholders and RSU Holders; provided, that while the Unitholder Representative may be paid from the aforementioned sources of funds, this does not relieve the Unitholders and RSU Holders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Unitholder Representative be required to advance its own funds on behalf of the Unitholders and RSU Holders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Unitholders and RSU Holders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Unitholder Representative hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Unitholder Representative or the termination of this Agreement. (c) Upon the Closing, the Acquiror will wire the Unitholder Representative Expense Holdback Amount to the Unitholder Representative for acting in accordance with this Section 2.14(c), which will any written instructions given to them and believed by them to be used for any signed by the proper parties. All expenses incurred by the Unitholder Representative in performing its duties (including fees and expenses of professional advisors) and any indemnification to be provided to the Unitholder Representative shall be severally borne by the Existing Unitholders and, as to each Existing Unitholder, jointly and severally among its Owners. The Unitholder Representative may draw from the amounts held by the Escrow Agent specifically for the purpose of paying any out-of-pocket expenses of the Unitholder Representative pursuant to Section 1.5(a)(C) hereof in connection with the performance of its duties hereunder. The Unitholders hereunder and RSU Holders will not receive any interest or earnings on under the Escrow Agreement, provided that the Unitholder Representative Expense Holdback Amount shall keep records evidencing all such expenses and irrevocably transfer and assign to the Unitholder Representative any ownership right that they may otherwise have had in any shall make such interest or earnings. The Unitholder Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds records available to its creditors in the event of bankruptcy. As soon as practicable following the completion any of the Unitholder Representative’s responsibilities, as set forth in this Agreement and the applicable Ancillary Agreements, the Unitholder Representative will deliver any remaining balance of the Unitholder Representative Expense Holdback Amount to the Paying Agent for delivery to the Unitholders and RSU Holders (which, in the case of the Employee RSU Holders, will be delivered through payment to the Surviving Company which will be paid through payroll). For tax purposes, the Unitholder Representative Expense Holdback Amount will be treated as having been received and voluntarily set aside by the Unitholders and RSU Holders at the time of ClosingMembers upon request. (d) The Unitholder Representative may resign at any time, and may be removed for any reason or no reason by the vote or written consent of Unitholders holding a majority of the aggregate Percentage Interests at the Effective Time (the “Majority Holders”). In the event of the death, incapacity, resignation or removal of the Unitholder Representative, a new Unitholder Representative shall be appointed by the vote or written consent of the Majority Holders within ten (10) Business Days. Notice of such vote or a copy of the written consent appointing such new Unitholder Representative shall be sent to the Acquiror and, after the Effective Time, to the Surviving Company, such appointment to be effective upon the later of the date indicated in such consent or the date such consent is received by the Acquiror and, after the Effective Time, the Surviving Company. (e) The approval of this Agreement by the requisite vote or written consent of Unitholders shall also be deemed to constitute approval of all arrangements relating to the transactions contemplated hereby and to the provisions hereof binding upon the Unitholders.