Holder Representative. (a) By consenting to this Agreement, executing a Letter of Transmittal or Warrant Cancelation Agreement, or accepting any consideration as contemplated by Article 2, each Pre-Closing Holder appoints, authorizes and empowers ▇▇▇ ▇▇▇▇▇▇▇ to act as a representative for the benefit of the Pre-Closing Holders, as the sole and exclusive agent and attorney-in-fact to act on behalf of each Pre-Closing Holder for purposes of Section 2.6 and Section 8.20 under this Agreement and the Ancillary Documents following the Closing. Without limiting the generality of the foregoing, the Holder Representative shall have the full power and authority to take any and all actions on behalf of the Pre-Closing Holders that is necessary, appropriate or desirable to carry out all of the duties, responsibilities and obligations of the Holder Representative under this Agreement and the Ancillary Documents, including the power and authority to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered in connection therewith; (ii) execute and deliver, and receive deliveries of, all agreements, certificates, statements, notices, approvals, extension, waivers, undertakings, and other documents required or permitted to be given in connection with Section 2.6 and Section 8.20 of this Agreement, (iii) receive service of process in connection with any claims made pursuant to and Section 8.20 of this Agreement; (iv) make any calculations and determinations and settle any matters on behalf of all Pre-Closing Holders in connection with Section 2.6 or Section 8.20 of this Agreement, and in connection therewith issue notices and instructions to the Exchange Agent in accordance with the terms of the applicable Ancillary Documents; (v) assert or pursue on behalf of the Pre-Closing Holders any Proceeding or investigation against any of the other Parties, consenting to, compromising or settling any such Proceedings or investigations, conducting negotiations with any of the other Parties and their respective Representatives regarding such Proceeding or investigations pursuant to Section 2.6 or Section 8.20 of this Agreement, and, in connection therewith, to: (A) assert or institute any Proceeding or investigation; (B) file any proofs of debt, claims and petitions as the Holder Representative may deem advisable or necessary; and (C) file and prosecute appeals from any decision, judgment or award rendered in any such Proceeding or investigation; and (vi) to make, execute, acknowledge and deliver all such other statements, agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Holder Representative, in his sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by Section 2.6 or Section 8.20 of this Agreement and all Ancillary Documents to which Holder Representative is party (including, for the avoidance of doubt, in connection with Article 2). ▇▇▇ ▇▇▇▇▇▇▇ hereby (i) accepts his appointment as the Holder Representative and authorization to act as attorney-in-fact and agent on behalf of each Pre-Closing Holder in accordance with the terms of this Section 8.18, and (ii) agrees to perform his obligations hereunder and thereunder and otherwise comply with this Section 8.18. (b) PTAC, Sponsor, and any other Person may conclusively and absolutely rely, without inquiry, upon any action or decision of the Holder Representative in all matters referred to herein. PTAC and Sponsor are entitled to deal exclusively with the Holder Representative on all matters arising under or in connection with Section 2.6, or Section 8.20 or this Section 8.18. Any action taken or not taken or decisions, communications or writings made, given or executed by the Holder Representative with respect to all such matters, for or on behalf of any Pre-Closing Holder, shall be deemed an action taken or not taken or decisions, communications or writings made, given or executed by such Pre-Closing Holder. Any notice or communication delivered to the Holder Representative pursuant to Section 2.6, Section 8.20 or this Section 8.18 shall be deemed to have been delivered to all the Pre-Closing Holder. PTAC and Sponsor shall be entitled to disregard any decisions, communications or writings made, given or executed by any Pre-Closing Holder in connection with any matter arising under or in connection with Section 2.6, Section 8.20 or this Section 8.18, unless the same is made, given or executed by the Holder Representative. (c) The appointment of the Holder Representative as each Pre-Closing Holder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person or Persons to act as agent and to represent such Pre-Closing Holder with regard to the matters contemplated by Section 2.6, Section 8.20 or this Section 8.18. The grant of authority provided for herein (A) is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy, or liquidation of any Pre-Closing Holder, and (B) shall survive the consummation of transactions contemplated by this Agreement. Notwithstanding the foregoing, the Holder Representative may resign as the Holder Representative at any time by providing written notice to PTAC (prior to the Closing) or the Sponsor (after the Closing), which resignation shall become effective upon appointment of a successor Holder Representative (who is reasonably acceptable to PTAC (prior to the Closing) or the Sponsor (after the Closing)) by the Pre-Closing Holders constituting a majority of the Company Stock immediately prior to the Effective Time. All power, authority, rights, privileges, and obligations conferred in this Agreement to the Holder Representative shall apply to any such successor Holder Representative. (d) The Holder Representative hereby represents and warrants on behalf of itself to each PTAC Party as of the date hereof and as of the Closing Date, as follows: (i) The Holder Representative has the requisite capacity, power and authority to execute and deliver this Agreement and each of the Ancillary Documents to which he is or will be a party, to perform his obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby. (ii) The execution and delivery of this Agreement, the Ancillary Documents to which the Holder Representative is or will be a party and the consummation of the transactions contemplated hereby and thereby have been (or, in the case of any Ancillary Document entered into after the date of this Agreement, will be upon execution thereof) duly authorized by all necessary action on the part of the Holder Representative. This Agreement and each Ancillary Document to which the Holder Representative is or will be a party has been or will be upon execution thereof, duly and validly executed and delivered by the Holder Representative and constitutes or will constitute, upon execution and delivery thereof, as applicable, a valid, legal and binding agreement of the Holder Representative, enforceable against the Holder Representative in accordance with their terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity). (iii) The Holder Representative has the sole power, authority and control of the Pre-Closing Holders with respect to the matters relating to this Agreement and the Ancillary Documents, including as contemplated in Section 8.18(a), and in general to do all other things and to perform all other acts, including executing and delivering all agreements, certificates, receipts, instructions, and other instruments, contemplated by, or deemed advisable in connection with, this Agreement or any Ancillary Document, in each case on behalf of a Pre-Closing Holder. (e) The Holder Representative shall be reimbursed for all such fees, costs, and expenses by the Company as Company Expenses.
Appears in 1 contract
Holder Representative. (a) By consenting to this AgreementEach Selling Holder hereby irrevocably appoints Summit Partners, executing a Letter of Transmittal or Warrant Cancelation AgreementL.P. (the "Holder Representative") as such Selling Holder's representative, or accepting any consideration as contemplated by Article 2, each Pre-Closing Holder appoints, authorizes and empowers ▇▇▇ ▇▇▇▇▇▇▇ to act as a representative for the benefit of the Pre-Closing Holders, as the sole and exclusive agent and attorney-in-fact and agent, with full power of substitution to act on behalf in the name, place and stead of each Pre-Closing such Selling Holder for purposes with respect to the transfer of Section 2.6 such Selling Holder's Company Stock and Section 8.20 under this Agreement and the Ancillary Documents following the Closing. Without limiting the generality of the foregoingLLC Units, the Holder Representative shall have the full power and authority to take any and all actions on behalf of the Pre-Closing Holders that is necessaryas applicable, appropriate or desirable to carry out all of the duties, responsibilities and obligations of the Holder Representative under this Agreement and the Ancillary Documents, including the power and authority to: (i) interpret in accordance with the terms and provisions of this Agreement and to act on behalf of such Selling Holder in any amendment of or litigation or arbitration involving this Agreement and to do or refrain from doing all such further acts and things, and to execute all such documents, as such Holder Representative shall deem necessary or appropriate in conjunction with any of the documents transactions contemplated by this Agreement, including, without limitation, the power:
(i) to be executed and delivered take all action necessary or desirable in connection therewith; with the waiver of any condition to the obligations of the Selling Holders to consummate the transactions contemplated by this Agreement;
(ii) execute and deliverto negotiate, execute, deliver and receive deliveries of, all ancillary agreements, statements, certificates, statements, notices, approvals, extensionextensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with Section 2.6 the consummation of the transactions contemplated by this Agreement (it being understood that such Selling Holder shall execute and Section 8.20 of this Agreement, deliver any such documents which the Holder Representative agrees to execute);
(iii) to terminate this Agreement if the Selling Holders are entitled to do so;
(iv) to give and receive all notices and communications to be given or received under this Agreement and to receive service of process in connection with the any claims made pursuant to and Section 8.20 of under this Agreement, including service of process in connection with arbitration; and
(ivv) make to negotiate the settlement of any calculations disputes, as contemplated and determinations in the manner set forth herein; and
(vi) to take all actions which under this Agreement may be taken by the Selling Holders and settle to do or refrain from doing any matters further act or deed on behalf of all Pre-Closing the Selling Holders which the Holder Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as fully and completely as such Selling Holder could do if personally present.
(b) The Holder Representative will not be liable for any act taken or omitted by it as permitted under this Agreement, except if such act is taken or omitted in bad faith, gross negligence or by willful misconduct. The Holder Representative will also be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine (including facsimiles thereof).
(c) The Selling Holders agree, jointly and severally, to indemnify the Holder Representative for, and to hold the Holder Representative harmless against, any loss, liability or expense incurred without willful misconduct, gross negligence or bad faith on the part of the Holder Representative, arising out of or in connection with Section 2.6 or Section 8.20 of the Holder Representative's carrying out it duties under this Agreement, including costs and expenses of successfully defending Holder Representative against any claim of liability with respect thereto. The Holder Representative may consult with counsel of its own choice and will have full and complete authorization and protection for any action taken and suffered by it in connection therewith issue notices good faith and instructions to the Exchange Agent in accordance with the terms opinion of such counsel.
(d) The Holder Representative shall not compromise or settle any claim or amount which disproportionately affects the interests of any Selling Holder in relation to all Selling Holders, without the prior written consent of the applicable Ancillary Documents; (v) assert or pursue on behalf of the Pre-Closing Holders any Proceeding or investigation against any of the other Parties, consenting to, compromising or settling any such Proceedings or investigations, conducting negotiations Selling Holder so affected. Purchaser shall be fully protected in dealing with any of the other Parties and their respective Representatives regarding such Proceeding or investigations pursuant to Section 2.6 or Section 8.20 of this Agreement, and, in connection therewith, to: (A) assert or institute any Proceeding or investigation; (B) file any proofs of debt, claims and petitions as the Holder Representative under this Agreement and may deem advisable rely upon the authority of the Holder Representative to act as the Selling Holders' agent under this Agreement. Any payments or necessary; and deliveries (Cincluding without limitation notices required or permitted hereunder) file and prosecute appeals from by Purchaser to the Holder Representative under this Agreement for the benefit of the Selling Holders, or any decisionof them, judgment shall be considered payments or award rendered in any such Proceeding or investigation; and (vi) deliveries made by Purchaser to makethe Selling Holders. If Summit Partners, execute, acknowledge and deliver all such other statements, agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, L.P. becomes unable to do any and all things and to take any and all action that the serve as Holder Representative, in his sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by Section 2.6 or Section 8.20 of this Agreement and all Ancillary Documents to which Holder Representative is party (including, for the avoidance of doubt, in connection with Article 2). ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, or such other Person or Persons as may be designated by a majority of the Selling Holders, shall succeed as the Holder Representative. The Holder Representative shall provide to ▇▇▇▇▇▇▇ hereby (i) accepts his appointment as ▇▇▇▇▇▇▇▇▇▇ a full and complete copy of each item of correspondence between the Holder Representative and authorization to act as attorney-in-fact and agent on behalf of each Pre-Closing Holder in accordance with the terms of this Section 8.18, and (ii) agrees to perform his obligations hereunder and thereunder and otherwise comply with this Section 8.18.
(b) PTAC, Sponsor, and Purchaser or any other Person may conclusively and absolutely rely, without inquiry, upon any action or decision of the Holder Representative in all matters referred to herein. PTAC and Sponsor are entitled to deal exclusively with the Holder Representative on all matters arising under or in connection with Section 2.6, or Section 8.20 or this Section 8.18. Any action taken or not taken or decisions, communications or writings made, given or executed by the Holder Representative with respect to all such matters, for or on behalf of any Pre-Closing Holder, shall be deemed an action taken or not taken or decisions, communications or writings made, given or executed by such Pre-Closing Holder. Any notice or communication delivered to the Holder Representative pursuant to Section 2.6, Section 8.20 or this Section 8.18 shall be deemed to have been delivered to all the Pre-Closing Holder. PTAC and Sponsor shall be entitled to disregard any decisions, communications or writings made, given or executed by any Pre-Closing Holder in connection with any matter arising under or in connection with Section 2.6, Section 8.20 or this Section 8.18, unless the same is made, given or executed by the Holder RepresentativePurchaser's representatives.
(c) The appointment of the Holder Representative as each Pre-Closing Holder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person or Persons to act as agent and to represent such Pre-Closing Holder with regard to the matters contemplated by Section 2.6, Section 8.20 or this Section 8.18. The grant of authority provided for herein (A) is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy, or liquidation of any Pre-Closing Holder, and (B) shall survive the consummation of transactions contemplated by this Agreement. Notwithstanding the foregoing, the Holder Representative may resign as the Holder Representative at any time by providing written notice to PTAC (prior to the Closing) or the Sponsor (after the Closing), which resignation shall become effective upon appointment of a successor Holder Representative (who is reasonably acceptable to PTAC (prior to the Closing) or the Sponsor (after the Closing)) by the Pre-Closing Holders constituting a majority of the Company Stock immediately prior to the Effective Time. All power, authority, rights, privileges, and obligations conferred in this Agreement to the Holder Representative shall apply to any such successor Holder Representative.
(d) The Holder Representative hereby represents and warrants on behalf of itself to each PTAC Party as of the date hereof and as of the Closing Date, as follows:
(i) The Holder Representative has the requisite capacity, power and authority to execute and deliver this Agreement and each of the Ancillary Documents to which he is or will be a party, to perform his obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby.
(ii) The execution and delivery of this Agreement, the Ancillary Documents to which the Holder Representative is or will be a party and the consummation of the transactions contemplated hereby and thereby have been (or, in the case of any Ancillary Document entered into after the date of this Agreement, will be upon execution thereof) duly authorized by all necessary action on the part of the Holder Representative. This Agreement and each Ancillary Document to which the Holder Representative is or will be a party has been or will be upon execution thereof, duly and validly executed and delivered by the Holder Representative and constitutes or will constitute, upon execution and delivery thereof, as applicable, a valid, legal and binding agreement of the Holder Representative, enforceable against the Holder Representative in accordance with their terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity).
(iii) The Holder Representative has the sole power, authority and control of the Pre-Closing Holders with respect to the matters relating to this Agreement and the Ancillary Documents, including as contemplated in Section 8.18(a), and in general to do all other things and to perform all other acts, including executing and delivering all agreements, certificates, receipts, instructions, and other instruments, contemplated by, or deemed advisable in connection with, this Agreement or any Ancillary Document, in each case on behalf of a Pre-Closing Holder.
(e) The Holder Representative shall be reimbursed for all such fees, costs, and expenses by the Company as Company Expenses.
Appears in 1 contract
Holder Representative. (a) By consenting to this Agreement, executing a Letter of Transmittal or Warrant Cancelation AgreementTransmittal, or accepting any consideration as contemplated by Article Article 2, each Pre-Closing Holder irrevocably appoints, authorizes and empowers ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ to act as a representative for the benefit of the Pre-Closing Holders, as the sole and exclusive agent and attorney-in-fact to act on behalf of each Pre-Closing Holder for purposes of Section 2.6 Holder, in connection with, and Section 8.20 under this Agreement and to facilitate the Ancillary Documents following the Closing. Without limiting the generality of the foregoingconsummation of, the Holder Representative shall have the full power and authority transactions contemplated by this Agreement, including pursuant to take any and all actions on behalf of the Pre-Closing Holders that is necessary, appropriate or desirable to carry out all of the duties, responsibilities and obligations of the Holder Representative under this Agreement and the Ancillary Documents, including which shall include (without limitation) the power and authority to: (i) execute and deliver, and receive deliveries of, this Agreement and any Ancillary Documents (with such modifications or changes herein or therein as to which the Holder Representative, in its sole and absolute discretion, shall have consented); (ii) interpret the terms and provisions of this Agreement and the documents to be executed and delivered in connection therewith; (iiiii) execute and deliver, and receive deliveries of, all agreementsexecute and deliver such amendments, certificatesmodifications, statements, notices, approvals, extension, waivers, undertakings, waivers and other documents required or permitted to be given consents in connection with Section 2.6 and Section 8.20 of this Agreement, any Ancillary Document or the consummation of the transactions contemplated hereby or thereby as the Holder Representative, in its sole discretion, may deem necessary or desirable; (iiiiv) receive service of process in connection with any claims made pursuant to and Section 8.20 of this Agreementprocess; (ivv) make any calculations and determinations and settle any matters on behalf of all Pre-Closing Holders (including in connection with Section Section 2.6 or Section Section 8.20 of this Agreement, and in connection therewith ); (vi) issue notices and instructions to the Exchange Agent in accordance with the terms of the applicable Ancillary Documents; (vvii) assert or pursue on behalf of the Pre-Closing Holders any Proceeding or investigation against any of the other Parties, consenting to, compromising or settling any such Proceedings or investigations, conducting negotiations with any of the other Parties and their respective Representatives regarding such Proceeding or investigations pursuant to Section 2.6 or Section 8.20 of this Agreementinvestigations, and, in connection therewith, to: (A) assert or institute any Proceeding or investigation; (B) file any proofs of debt, claims and petitions as the Holder Representative may deem advisable or necessary; and (C) file and prosecute appeals from any decision, judgment or award rendered in any such Proceeding or investigation; and (viviii) to make, execute, acknowledge and deliver all such other statements, agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Holder Representative, in his sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by Section 2.6 or Section 8.20 of this Agreement and all Ancillary Documents to which Holder Representative is party on behalf of the Pre-Closing Holders (including, for the avoidance of doubtbut, in connection with Article 2each case, subject to the terms and conditions hereunder and thereunder). .
(b) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ hereby (i) accepts his appointment as the Holder Representative and authorization to act as attorney-in-fact and agent on behalf of each Pre-Closing Holder in accordance with the terms of this Section Section 8.18, and (ii) agrees to perform his obligations hereunder and thereunder and otherwise comply with this Section Section 8.18.
(bc) PTACAcquiror, Sponsor, Sponsor and any other Person may conclusively and absolutely rely, without inquiry, upon any action or decision of the Holder Representative in all matters referred to herein. PTAC Acquiror and Sponsor are entitled to deal exclusively with the Holder Representative on all matters arising under or in connection with Section 2.6this Agreement, any Ancillary Document or Section 8.20 the consummation of the transactions contemplated hereby or this Section 8.18thereby. Any action taken or not taken or decisions, communications or writings made, given or executed by the Holder Representative with respect to all such matters, for or on behalf of any Pre-Closing Holder, shall be deemed an action taken or not taken or decisions, communications or writings made, given or executed by such Pre-Closing Holder. Any notice or communication delivered to the Holder Representative pursuant to Section 2.6, Section 8.20 in connection with this Agreement or this Section 8.18 any Ancillary Document or the consummation of the transactions contemplated hereby or thereby shall be deemed to have been delivered to all the Pre-Closing Holder. PTAC Acquiror and Sponsor shall be entitled to disregard any decisions, communications or writings made, given or executed by any Pre-Closing Holder in connection with any matter arising under or in connection with Section 2.6, Section 8.20 this Agreement or this Section 8.18any Ancillary Document or the consummation of the transactions contemplated hereby or thereby, unless the same is made, given or executed by the Holder Representative.
(cd) The appointment of the Holder Representative as each Pre-Closing Holder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person or Persons to act as agent and to represent such Pre-Closing Holder with regard to the matters contemplated by Section 2.6, Section 8.20 this Agreement or this Section 8.18any Ancillary Document. The grant of authority provided for herein (A) is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy, or liquidation of any Pre-Closing Holder, and (B) shall survive the consummation of transactions contemplated by this Agreement. All decisions and actions by the Holder Representative made in accordance with the authority granted to it hereunder, shall be binding upon all of the Pre-Closing Holders, and no Pre-Closing Holder shall have the right to object, dissent, protest or otherwise contest the same. Notwithstanding the foregoing, the Holder Representative may resign as the Holder Representative at any time by providing written notice to PTAC Acquiror (prior to the Closing) or the Sponsor (after the Closing), which resignation shall become effective upon appointment of a successor Holder Representative (who is reasonably acceptable to PTAC Acquiror (prior to the Closing) or the Sponsor (after the Closing)) by the Pre-Closing Holders constituting a majority of the issued and outstanding Company Stock Shares immediately prior to the First Effective TimeTime (but, for the avoidance of doubt, following the Company Preferred Conversion). All power, authority, rights, privileges, and obligations conferred in this Agreement to the Holder Representative shall apply to any such successor Holder Representative.
(de) The Holder Representative hereby represents and warrants on behalf of itself to each PTAC Acquiror Party as of the date hereof of this Agreement and as of the Closing Date, as follows:
(i) The Holder Representative has the requisite capacity, power and authority to execute and deliver this Agreement and each of the Ancillary Documents to which he is or will be a party, to perform his obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby.
(ii) The execution and delivery of this Agreement, the Ancillary Documents to which the Holder Representative is or will be a party and the consummation of the transactions contemplated hereby and thereby have been (or, in the case of any Ancillary Document entered into after the date of this Agreement, will be upon execution thereof) duly authorized by all necessary action on the part of the Holder Representative. This Agreement and each Ancillary Document to which the Holder Representative is or will be a party has been or will be upon execution thereof, duly and validly executed and delivered by the Holder Representative and constitutes or will constitute, upon execution and delivery thereof, as applicable, a valid, legal and binding agreement of the Holder Representative, enforceable against the Holder Representative in accordance with their terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity).
(iii) The Holder Representative has the sole power, authority and control of the Pre-Closing Holders with respect to the matters relating to this Agreement and the Ancillary Documents, including as contemplated in Section 8.18(aSection 8.18(a), and in general to do all other things and to perform all other acts, including executing and delivering all agreements, certificates, receipts, instructions, and other instruments, contemplated by, or deemed advisable in connection with, this Agreement or any Ancillary Document, in each case on behalf of a Pre-Closing Holder.
(ef) The Holder Representative shall be reimbursed for all such fees, costs, and expenses by the Company as Company Expensesfor its reasonable documented out-of-pocket fees, costs and expenses incurred in connection with its representation of the Pre-Closing Holders pursuant and subject to the terms of this Section 8.18.
Appears in 1 contract
Holder Representative. (a) By consenting to this Agreementvirtue of the approval of the Merger by the Stockholders, executing a Letter of Transmittal or Warrant Cancelation Agreementthe Equityholders hereby appoint, or accepting any consideration as contemplated by Article 2, each Pre-Closing Holder appoints, authorizes authorize and empowers empower ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the “Holder Representative”) to act as a representative for be the benefit of the Pre-Closing Holdersexclusive proxy, as the sole and exclusive representative, agent and attorney-in-fact of each of the Equityholders, with full power of substitution, to make all decisions and determinations and to act and execute, deliver and receive all documents, instruments and consents on behalf of each Pre-Closing the Equityholders at any time, in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions of Sections 2.4, 2.5, 2.7, 2.8, 6.9 and 9.4 and this Article VIII. By executing this Agreement, the Holder for purposes of Section 2.6 Representative accepts such appointment, authority and Section 8.20 under this Agreement and the Ancillary Documents following the Closingpower. Without limiting the generality of the foregoing, the Holder Representative shall have the full power and authority to take any and all of the following actions on behalf of the Pre-Closing Holders that is necessary, appropriate or desirable to carry out all of the duties, responsibilities and obligations of the Holder Representative under this Agreement and the Ancillary Documents, including the power and authority tosuch Equityholders: (i) interpret the terms to give and provisions of receive notices, communications and consents under this Agreement and the documents to be executed and delivered in connection therewithArticle VIII; (ii) execute to receive and deliver, and receive deliveries of, all agreements, certificates, statements, notices, approvals, extension, waivers, undertakings, and other documents required or permitted distribute payments pursuant to be given in connection with Section 2.6 and Section 8.20 of this Agreement, Article VIII; (iii) receive service of process in connection with to waive any claims made pursuant to and Section 8.20 provision of this AgreementArticle VIII; (iv) make to investigate, defend, contest or litigate any calculations and determinations and settle claim or action (including Third-Party Claims) initiated by any matters on behalf of all Pre-Closing Holders in connection with Section 2.6 Person against the Holder Representative or Section 8.20 of this Agreement, and in connection therewith issue notices and instructions to the Exchange Agent in accordance with the terms of the applicable Ancillary Documentsany Equityholders; (v) assert or pursue to receive process on behalf of the Pre-Closing Holders any Proceeding or investigation against any of the other Parties, consenting to, compromising or settling any such Proceedings or investigations, conducting negotiations with any of the other Parties and their respective Representatives regarding such Proceeding or investigations pursuant to Section 2.6 or Section 8.20 of this Agreement, and, in connection therewith, to: (A) assert or institute any Proceeding or investigation; (B) file any proofs of debt, claims and petitions as the Holder Representative may deem advisable or necessary; and (C) file and prosecute appeals from any decision, judgment or award rendered all Equityholders in any such Proceeding claim or investigationaction; and (vi) to negotiate, enter into settlements and compromises of, resolve and comply with orders of courts and awards of arbitrators or other third-party intermediaries with respect to any disputes with respect to matters which are indemnifiable pursuant to this Article VIII; (vii) to make, execute, acknowledge and deliver all such other statements, agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Holder Representative, in his its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the activities described in this Article VIII and the transactions contemplated by Section 2.6 or Section 8.20 this Article VIII; (viii) to consent to a waiver of a provision of this Agreement in accordance with Section 9.4; (ix) to make any decisions with respect to the determination of the Regulatory Net Capital, Net Debt, Transaction Expenses and all Ancillary Documents Accounting Principles; and (x) to which Holder Representative is party (includingengage, for obtain the avoidance advice, incur and pay expenses of doubtlegal counsel, in connection with Article 2). ▇▇▇ ▇▇▇▇▇▇▇ hereby (i) accepts his appointment accountants and other professional advisors as the Holder Representative Representative, in his sole discretion, deems necessary or advisable in the performance of his duties and authorization to act as attorney-in-fact rely on their advice and agent on behalf of each Pre-Closing Holder in accordance with the terms of this Section 8.18, and (ii) agrees to perform his obligations hereunder and thereunder and otherwise comply with this Section 8.18counsel.
(b) PTAC, Sponsor, and any other Person may conclusively and absolutely rely, without inquiry, upon any action or decision of the Holder Representative in all matters referred to herein. PTAC and Sponsor are entitled to deal exclusively with the Holder Representative on all matters arising under or in connection with Section 2.6, or Section 8.20 or this Section 8.18. Any action taken or not taken or decisions, communications or writings made, given or executed by the Holder Representative with respect to all such matters, for or on behalf of any Pre-Closing Holder, shall be deemed an action taken or not taken or decisions, communications or writings made, given or executed by such Pre-Closing Holder. Any notice or communication delivered to the Holder Representative pursuant to Section 2.6, Section 8.20 or this Section 8.18 shall be deemed to have been delivered to all the Pre-Closing Holder. PTAC and Sponsor shall be entitled to disregard any decisions, communications or writings made, given or executed by any Pre-Closing Holder in connection with any matter arising under or in connection with Section 2.6, Section 8.20 or this Section 8.18, unless the same is made, given or executed by the Holder Representative.
(c) The appointment of the Holder Representative as by each Pre-Closing Holder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person or Persons to act as agent and to represent such Pre-Closing Holder with regard to the matters contemplated by Section 2.6, Section 8.20 or this Section 8.18. The grant of authority provided for herein (A) Equityholder is coupled with an interest and may not be revoked in whole or in part (including, upon the death or incapacity of such Equityholder). Such appointment shall be irrevocable binding upon the heirs, executors, administrators, estates, personal representatives, officers, directors, security holders, successors and survive assigns of each such Equityholder. All decisions of the deathHolder Representative shall be final and binding on all of the Equityholders, incompetencyand no such Equityholders shall have the right to object, bankruptcydissent, protest or liquidation otherwise contest the same. Each of Parent and Merger Sub shall be entitled to rely upon, without independent investigation, any act, notice, instruction or communication from the Holder Representative and any document executed by the Holder Representative on behalf of any Pre-Closing Holder, Equityholder and (B) shall survive be fully protected in connection with any action or inaction taken or omitted to be taken in reliance thereon. Notwithstanding anything to the consummation of transactions contemplated by contrary in this Agreement. Notwithstanding the foregoing, the Holder Representative may resign as shall have no liability or obligation of any nature under this Agreement to any party hereto or any third-party beneficiary hereof. To the extent any costs and expenses are incurred by the Holder Representative at in connection with the performance of his duties and obligations pursuant to this Agreement, including in connection with Section 2.7 or in connection with the defense of any Third-Party Claim pursuant to Article VIII, the Holder Representative shall be entitled to recover up to $100,000 of such costs and expenses from the Withheld Amount. To effectuate such payment from the Withheld Amount, Parent shall cause the Surviving Entity to disburse such amount in cash to the Holder Representative and reduce the principal of the Withholding Notes by a corresponding amount in the aggregate, pro rata among the Withholding Notes in accordance with the Seller Reserve Percentages, as is reasonably requested from time to time in writing by the Holder Representative to pay such costs and expenses. Upon request of the Holder Representative, the Equityholders shall promptly reimburse the Holder Representative for any Damages, costs or expenses incurred by the Holder Representative in connection with its obligations and duties hereunder to the extent such Damages, costs or expenses are not otherwise reimbursed from the Withheld Amount as set forth in this Section 8.8(c).
(c) The Holder Representative may resign by providing twenty (20) days’ prior written notice to PTAC (prior to each Equityholder and Parent and Merger Sub. In the Closing) or the Sponsor (after the Closing), which resignation shall become effective upon appointment of event that a successor Holder Representative (who is reasonably acceptable to PTAC (prior to the Closing) or the Sponsor (after the Closing)) has resigned, a new Holder Representative shall be appointed by the Pre-Closing Holders constituting a majority vote of the Equityholders that collectively owned more than 50% of the shares of Company Common Stock immediately prior to the Effective Time. All power; provided, authorityhowever, rights, privileges, and obligations conferred in this Agreement that such appointment shall be subject to the such replacement Holder Representative shall apply to any such successor Holder Representative.
(d) The Holder Representative hereby represents notifying Parent and warrants on behalf Merger Sub in writing of itself to each PTAC Party as of the date hereof his, her or its appointment and as of the Closing Date, as follows:
(i) The Holder Representative has the requisite capacity, power and authority to execute and deliver this Agreement and each of the Ancillary Documents to which he is or will be a party, to perform his obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby.
(ii) The execution and delivery appropriate contact information for purposes of this Agreement, and each of Parent and Merger Sub shall be entitled to rely upon, without independent investigation, the Ancillary Documents to which the identity of such replacement Holder Representative is or will be a party and the consummation of the transactions contemplated hereby and thereby have been (or, as set forth in the case of any Ancillary Document entered into after the date of this Agreement, will be upon execution thereof) duly authorized by all necessary action on the part of the Holder Representative. This Agreement and each Ancillary Document to which the Holder Representative is or will be a party has been or will be upon execution thereof, duly and validly executed and delivered by the Holder Representative and constitutes or will constitute, upon execution and delivery thereof, as applicable, a valid, legal and binding agreement of the Holder Representative, enforceable against the Holder Representative in accordance with their terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity)such written notice.
(iii) The Holder Representative has the sole power, authority and control of the Pre-Closing Holders with respect to the matters relating to this Agreement and the Ancillary Documents, including as contemplated in Section 8.18(a), and in general to do all other things and to perform all other acts, including executing and delivering all agreements, certificates, receipts, instructions, and other instruments, contemplated by, or deemed advisable in connection with, this Agreement or any Ancillary Document, in each case on behalf of a Pre-Closing Holder.
(e) The Holder Representative shall be reimbursed for all such fees, costs, and expenses by the Company as Company Expenses.
Appears in 1 contract
Holder Representative. (a) Notwithstanding anything herein to the contrary, the Company shall use commercially reasonable efforts to appoint a Holder Representative prior to the Closing, on customary terms and conditions and enter into any Contract with such Holder Representative on customary terms and conditions. By consenting to this Agreement, executing a Letter of Transmittal or Warrant Cancelation Agreement, or accepting any consideration as contemplated by Article 2, each Pre-Closing Holder appoints, authorizes and empowers ▇▇▇ ▇▇▇▇▇▇▇ the Holder Representative to act as a representative for the benefit of the Pre-Closing Holders, as the sole and exclusive agent and attorney-in-fact to act on behalf of each Pre-Closing Holder for purposes of Section 2.6 and Section 8.20 under this Agreement and the Ancillary Documents following the Closing. Without limiting the generality of the foregoing, the Holder Representative shall have the full power and authority to take any and all actions on behalf of the Pre-Closing Holders that is necessary, appropriate or desirable to carry out all of the duties, responsibilities and obligations of the Holder Representative under this Agreement and the Ancillary Documents, including the power and authority to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered in connection therewithherewith; (ii) execute and deliver, and receive deliveries of, all agreements, certificates, statements, notices, approvals, extension, waivers, undertakings, and other documents required or permitted to be given in connection with Section 2.6 and Section 8.20 of this Agreement, (iii) receive service of process in connection with any claims made pursuant to and Section 8.20 2.6 of this Agreement; (iv) make any calculations and determinations and settle any matters on behalf of all Pre-Closing Holders in connection with Section 2.6 or Section 8.20 of this Agreement, and in connection therewith issue notices and instructions to the Exchange Agent in accordance with the terms of the applicable Ancillary Documents; (v) assert or pursue on behalf of the Pre-Closing Holders any Proceeding or investigation against any of the other Parties, consenting to, compromising or settling any such Proceedings or investigations, conducting negotiations with any of the other Parties and their respective Representatives regarding such Proceeding or investigations pursuant to Section 2.6 or Section 8.20 of this Agreement, and, in connection therewith, to: (A) assert or institute any Proceeding or investigation; (B) file any proofs of debt, claims and petitions as the Holder Representative may deem advisable or necessary; and (C) file and prosecute appeals from any decision, judgment or award rendered in any such Proceeding or investigation; and (vi) to make, execute, acknowledge and deliver all such other statements, agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Holder Representative, in his its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by Section 2.6 or Section 8.20 of this Agreement and all Ancillary Documents to which Holder Representative is party (including, for the avoidance of doubt, in connection with Article 2). ▇▇▇ ▇▇▇▇▇▇▇ hereby (i) accepts his appointment as the Holder Representative and authorization to act as attorney-in-fact and agent on behalf of each Pre-Closing Holder in accordance with the terms of this Section 8.18, and (ii) agrees to perform his obligations hereunder and thereunder and otherwise comply with this Section 8.18.
(b) PTACSTPC, Sponsor, and any other Person may conclusively and absolutely rely, without inquiry, upon any action or decision of the Holder Representative in all matters referred to herein. PTAC STPC and Sponsor are entitled to deal exclusively with the Holder Representative on all matters arising under or in connection with Section 2.6, or Section 8.20 2.6 or this Section 8.188.20. Any action taken or not taken or decisions, communications or writings made, given or executed by the Holder Representative with respect to all such matters, for or on behalf of any Pre-Closing Holder, shall be deemed an action taken or not taken or decisions, communications or writings made, given or executed by such Pre-Closing Holder. Any notice or communication delivered to the Holder Representative pursuant to Section 2.6, Section 8.20 2.6 or this Section 8.18 8.20 shall be deemed to have been delivered to all the Pre-Closing Holder. PTAC STPC and Sponsor shall be entitled to disregard any decisions, communications or writings made, given or executed by any Pre-Closing Holder in connection with any matter arising under or in connection with Section 2.6, Section 8.20 2.6 or this Section 8.188.20, unless the same is made, given or executed by the Holder Representative.
(c) The appointment of the Holder Representative as each Pre-Closing Holder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person or Persons to act as agent and to represent such Pre-Closing Holder with regard to the matters contemplated by Section 2.6, Section 8.20 2.6 or this Section 8.188.20. The grant of authority provided for herein (Ai) is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy, or liquidation of any Pre-Closing Holder, and (Bii) shall survive the consummation of transactions contemplated by this Agreement. Notwithstanding the foregoing, (A) the Holder Representative may be removed from its position by the Pre-Closing Holders holding a majority of the Company Stock outstanding as of immediately prior to the Effective Time by providing written notice to the then-serving Holder Representative and STPC (prior to the Closing) or Sponsor (after the Closing) and (B) the Holder Representative may resign as the Holder Representative at any time by providing written notice to PTAC STPC (prior to the Closing) or the Sponsor (after the Closing), which resignation shall become effective upon appointment of a successor Holder Representative. Any vacancy of the Holder Representative (who is whether resulting from resignation, death or removal) shall be filled by a successor Holder Representative appointed by the Pre-Closing Holders holding a majority of the Company Stock outstanding as of immediately prior to the Effective Time; provided that such successor Holder Representative must be reasonably acceptable to PTAC STPC (prior to the Closing) or the Sponsor (after the Closing)) by the Pre-Closing Holders constituting a majority of the Company Stock immediately prior to the Effective Time. All power, authority, rights, privileges, and obligations conferred in this Agreement to the Holder Representative shall apply to any such successor Holder Representative.
(d) Following the Closing, the Holder Representative shall be reimbursed by STPC for any and all reasonable and documented expenses, disbursements, costs and advances incurred by the Holder Representative in his capacity as such.
(e) The Holder Representative shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Holder Representative’s gross negligence or willful misconduct was the cause of any loss to the Pre-Closing Holders. The Pre-Closing Holders shall indemnify and hold the Holder Representative harmless from and against, and the Holder Representative shall not be responsible for, any losses arising out of or attributable to the Holder Representative’s duties under this Agreement or this appointment, except to the extent that such losses are determined by a court of competent jurisdiction to be a result of the Holder Representative’s own gross negligence or willful misconduct (as determined by final adjudication of a court of competent jurisdiction).
(f) The Holder Representative hereby represents and warrants on behalf of itself to each PTAC STPC Party as of the date hereof and as of the Closing Date, as follows:
(i) The Holder Representative has the requisite capacity, power and authority to execute and deliver this Agreement and each of the Ancillary Documents to which he it is or will be a party, to perform his obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby.
(ii) The execution and delivery of this Agreement, the Ancillary Documents to which the Holder Representative is or will be a party and the consummation of the transactions contemplated hereby and thereby have been (or, in the case of any Ancillary Document entered into after the date of this Agreement, will be upon execution thereof) duly authorized by all necessary action on the part of the Holder Representative. This Agreement and each Ancillary Document to which the Holder Representative is or will be a party has been or will be upon execution thereof, duly and validly executed and delivered by the Holder Representative and constitutes or will constitute, upon execution and delivery thereof, as applicable, a valid, legal and binding agreement of the Holder Representative, enforceable against the Holder Representative in accordance with their terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity).
(iii) The Holder Representative has the sole power, authority and control of the Pre-Closing Holders with respect to the matters relating to this Agreement and the Ancillary Documents, including as contemplated in Section 8.18(a8.20(a), and in general to do all other things and to perform all other acts, including executing and delivering all agreements, certificates, receipts, instructions, and other instruments, contemplated by, or deemed advisable in connection with, this Agreement or any Ancillary Document, in each case on behalf of a Pre-Closing Holder.
(eg) The Holder Representative shall execute an instrument in form and substantace reasonably satisfactory to STPC and the Company agreeing to bound by the terms of Section 2.6 and this Section 8.20; provided that the Parties agree that any provisions in this Section 8.20 may be reimbursed for all amended to reflect any reasonable and customary comments by the Holder Representative once such fees, costsPerson has been appointed, and expenses by the Company as Company Expensessuch Parties shall not unreasonably withhold consent to an amendment necessary to reflect any such comments.
Appears in 1 contract
Sources: Merger Agreement (Star Peak Corp II)