Member Representative. (a) By approving this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Target Company Member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ as the initial Member Representative. The Member Representative will act as such Person’s representative and attorney-in-fact to act on behalf of such Person with respect to this Agreement and to take any and all actions and make any decisions required or permitted to be taken by Member Representative pursuant to this Agreement, including the exercise of the power to: (i) give and receive notices and communications; (ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15; (iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII; (iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII; (v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document; (vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document; (vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and (viii) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event. (b) The Member Representative may be removed, etc. as provided in this Section 10.1(b). (i) The Member Representative may resign at any time. (ii) The Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative. (iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders. (iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) above. (c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members. (d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests).
Appears in 4 contracts
Sources: Agreement and Plan of Merger (AIRO Group Holdings, Inc.), Agreement and Plan of Merger (AIRO Group Holdings, Inc.), Agreement and Plan of Merger (AIRO Group Holdings, Inc.)
Member Representative. By executing this Agreement, each of the Members shall be deemed to have irrevocably constituted the Member Representative as his, her or its agent and attorney in fact with full power of substitution to act from and after the date hereof and to do any and all things and execute any and all documents on behalf of such Members which may be necessary, convenient or appropriate to facilitate any matters under this Agreement, including but not limited to: (ai) By approving execution of the documents and certificates required pursuant to this Agreement; (ii) except to the extent specifically provided in this Agreement receipt and forwarding of notices and communications pursuant to this Agreement; (iii) administration of the provisions of this Agreement; (iv) any and all consents, waivers, amendments or modifications deemed by the Member Representative, in its sole and absolute discretion, to be necessary or appropriate under this Agreement and the transactions contemplated hereby execution or by executing and delivering a Letter delivery of Transmittal, each Target Company Member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ as any documents that may be necessary or appropriate in connection therewith; (v) amending this Agreement or any of the initial Member Representative. The instruments to be delivered to the Corporate Taxpayer pursuant to this Agreement; (vi) taking actions the Member Representative will act as such Person’s representative is expressly authorized to take pursuant to the other provisions of this Agreement; (vii) negotiating and attorney-in-fact to act compromising, on behalf of such Person Members, any dispute that may arise under, and exercising or refraining from exercising any remedies available under, this Agreement or any other agreement contemplated hereby and executing, on behalf of such Members, any settlement agreement, release or other document with respect to this Agreement such dispute or remedy; and to take any and all actions and make any decisions required or permitted to be taken by Member Representative pursuant to this Agreement, including the exercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary engaging attorneys, accountants, agents or appropriate in the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed consultants on behalf of any Target Company Member by Member Representative, and on such Members in connection with this Agreement or any other action taken or purported to be taken on behalf of agreement contemplated hereby and paying any Target Company Member by Member Representative, as being fully binding upon such Personfees related thereto. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
upon thirty (ii30) The Member Representative may be removed for any reason or no reason by the vote or days’ written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company MembersCorporate Taxpayer. If All reasonable, documented out-of-pocket costs and expenses incurred by the Member Representative has a personal conflict of interest with respect to any action, decision or determination to in its capacity as such shall be made promptly reimbursed by the Corporate Taxpayer upon invoice and reasonable support therefor by the Member Representative. To the fullest extent permitted by law, none of the Member Representative, any of its Affiliates, or any of the Member Representative’s or Affiliate’s directors, officers, employees or other agents (each a “Covered Person”) shall be liable, responsible or accountable in damages or otherwise to any Member, OpCo or the Corporate Taxpayer for damages arising from any action taken or omitted to be taken by the Member Representative must notify or any other Person with respect to OpCo or the Target Company Members.
(d) The Member Representative Corporate Taxpayer, except in the case of any action or omission which constitutes, with respect to such Person, willful misconduct or fraud. Each of the Covered Persons may consult with legal counsel, accountants, and other experts selected by it, and any act or omission suffered or taken by it on behalf of OpCo or the Corporate Taxpayer or in furtherance of the interests of OpCo or the Corporate Taxpayer in good faith in reliance upon and in accordance with the advice of such counsel, accountants, or other experts shall create a rebuttable presumption of the good faith and due care of such Covered Person with respect to such act or omission; provided, that such counsel, accountants, or other experts were selected with reasonable care. Each of the Covered Persons may rely in good faith upon, and shall have no liability to OpCo, the Corporate Taxpayer or the Members for acting or refraining from acting upon, any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. Each Covered Person shall not be liable to for, and shall be indemnified by the Target Company Members for actions taken Corporate Taxpayer for, any liability, loss, damage, penalty or fine incurred by the Covered Persons (and any cost or expense incurred by the Covered Persons in connection therewith and herewith and not previously reimbursed pursuant to this Section 7.14) arising out of or in connection with the acceptance or administration of its duties under this Agreement, and such liability, loss, damage, penalty, fine, cost or expense shall be treated as an expense subject to reimbursement pursuant to the provisions of this Section 7.14, except to the extent that any such actions shall have been determined by a court liability, loss, damage, penalty, fine, cost or expense is the proximate result of competent jurisdiction to have constituted gross negligence or involved fraud, intentional the willful misconduct or bad faith (it being understood that any act done or omitted pursuant to fraud of the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests)Covered Person.
Appears in 3 contracts
Sources: Tax Receivable Agreement (Clear Secure, Inc.), Tax Receivable Agreement (Clear Secure, Inc.), Tax Receivable Agreement (Clear Secure, Inc.)
Member Representative. (a) By approving this Agreement and the transactions contemplated Each Selling Member hereby or by executing and delivering a Letter of Transmittal, each Target Company Member shall have irrevocably authorized and appointed Mappoints ▇▇▇▇▇ ▇▇▇▇▇▇ as (the initial “Member Representative. The Member Representative will act ”) as such PersonSelling Member’s representative and representative, attorney-in-fact and agent, with full power of substitution to act in the name, place and stead of such Selling Member with respect to the transfer of such Selling Member’s Ownership Interest to Purchaser in accordance with the terms and provisions of this Agreement and to act on behalf of such Person with respect to Selling Member in any amendment of or litigation, mediation 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 Member Representative shall deem necessary or appropriate in conjunction with any of the transactions contemplated by this Agreement, including the power:
(i) to take all action necessary or desirable in connection with the waiver of any condition to the obligations of the Selling Members to consummate the transactions contemplated by this Agreement;
(ii) to negotiate, execute and deliver all actions ancillary agreements, statements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and make any decisions other documents required or permitted to be taken given in connection with the consummation of the transactions contemplated by this Agreement (it being understood that such Selling Member shall execute and deliver any such documents which the Member Representative pursuant agrees to this Agreement, including the exercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15execute);
(iii) agree toto 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 under this Agreement, negotiate, enter into settlements and compromises of, and comply including service of process in connection with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII;arbitration; and
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions which under this Agreement may be taken by the Selling Members including settlement of all claims and amounts, and to do or refrain from doing any further act or deed on behalf of the Selling Member which the Member Representative deems necessary or appropriate in the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings his sole discretion relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions subject matter of this Section, including the power of attorney granted hereby, are independent Agreement as fully and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other eventcompletely as such Selling Member could do if personally present.
(b) The If ▇▇▇▇▇ ▇▇▇▇▇ becomes unable to serve as Member Representative, such other Person or Persons as may be designated by a majority of the Selling Members, shall succeed as the Member Representative may provided however, such designated successor’s rights, authority and obligations shall be removed, etc. as provided limited to the nature and scope of those set forth in this Section 10.1(b8.2. In no event shall Selling Members or any Member Representative other than ▇▇▇▇▇ ▇▇▇▇▇ have any right, authority or obligation to execute the Company management and leadership responsibilities as set forth in Section 2.5(d).
. Purchaser reserves the right and responsibility, in its sole discretion, to: (i) The Member Representative may resign at appoint any time.
and all managers and leaders of the Company; and (ii) The Member Representative may be removed for any reason or no reason by the vote or written consent assume all duties of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described ▇▇▇▇▇ ▇▇▇▇▇ other than those specified in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests8.2(a)(i)-(iv).
Appears in 3 contracts
Sources: Purchase Agreement (Banctec Inc), Purchase Agreement (Banctec Inc), Purchase Agreement (Banctec Inc)
Member Representative. (a) By approving Pursuant to the Deal Approval, and in any event upon the delivery (whether prior to the date of this Agreement or otherwise) of an executed Letter of Transmittal to Parent in accordance with this Agreement and without any further action on the transactions contemplated hereby or by executing and delivering a Letter part of Transmittalany Member, each Target Company Member shall have thereby, and each Management Seller or other Rollover Holdco Member and, solely with respect to the period prior to the consummation of the Closing, Rollover Holdco and each Acquired Entity does hereby, irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ appoint the Member Representative as the initial sole representative of such Member, Management Seller or other Rollover Holdco Member Representative. The Member Representative will or, solely with respect to the period prior to the consummation of the Closing, Rollover Holdco and each Acquired Entity as the case may be (each, a “Represented Party”), to act as such Person’s representative the agent and attorney-in-fact to act on behalf of such Person with respect Represented Party regarding any matter relating to or under this Agreement, the Escrow Agreement, the Credit Agreement and to take any the Letters of Transmittal (the “Represented Documents”) including for the purposes of (i) executing and delivering the Represented Documents (it being understood that no amendment thereto shall be made that by Law requires further approval by such Represented Party without such further approval), and taking all actions and make any decisions required or permitted to be taken by Member Representative under such Represented Documents, (ii) on behalf of the Members, (x) directing the Escrow Agent to make payment of the Escrow Funds in accordance with Section 2.14, Article 12 and the Escrow Agreement, (y) agreeing to, negotiating, entering into settlements and compromises of and complying with orders of courts and awards of arbitrators with respect to Section 2.14, Article 12 and the Escrow Agreement and (z) acting for the Members with regard to all matters pertaining to indemnification pursuant to this Section 2.14, Article 12 and the Escrow Agreement, including the exercise power to compromise any claim on behalf of the power to:
(i) give Members thereunder and receive notices to transact matters of litigation or other claims and communications;
(ii) agree toto bring any Proceeding on behalf of the Members under Section 2.03(b)(iv), negotiateArticle 12, enter into settlements and compromises ofSection 9.11 or Section 14.05, and comply with orders or otherwise handle any other matters described in Section 2.15;
(iii) agree togiving, negotiatereceiving and forwarding all notices and communications required to be given or received by the Represented Parties under the Represented Documents and in connection with any of the Transactions, enter into settlements and compromises ofincluding receiving service of process in connection with any claims thereunder, and comply with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII;
(iv) litigateengaging attorneys, arbitrateaccountants, resolvefinancial and other advisors, settle paying agents and other Persons necessary or compromise any claim for indemnification pursuant appropriate, in the sole discretion of the Member Representative in the performance of its duties under the Represented Documents, and authorizing and directing the disbursement of funds to Article VI pay the fees and Article VIII;
expenses of such Persons (v) execute and deliver all documents necessary granting any consent, approval or desirable waiver on behalf of the Members, the Management Sellers or other Rollover Holdco Member or, prior to carry out the intent of Closing, the Acquired Entities under this Agreement prior to, at and any Ancillary Document;
following the Closing (including pursuant to Section 14.02); and (vi) make taking all elections actions or decisions contemplated by this Agreement and refraining from doing any Ancillary Document;
(vii) engage, employ further act or appoint deed on its own behalf or on behalf of any agents or representatives (including attorneys, accountants and consultants) to assist Represented Party that the Member Representative in complying with its duties and obligations; and
(viii) take all actions deems necessary or appropriate in the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings its discretion relating to the defensesubject matter of the Represented Documents, payment or settlement of any claims for indemnification hereunderas fully and completely as the Represented Parties could do if personally present. All decisions and actions by the Member Representative are binding upon all Represented Parties, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member no Represented Party shall have the right to object toobject, dissent fromdissent, protest or otherwise contest the same. The provisions As the representative of the Represented Parties under this SectionAgreement, including the power Member Representative shall act as the agent for all Represented Parties, shall have authority to bind each such Represented Party in accordance with this Agreement, and Parent may rely on such appointment and authority until the receipt of attorney granted herebynotice of the appointment of a successor in accordance with Section 14.14(d). Parent may conclusively rely upon, are without independent and severableverification or investigation, are irrevocable and coupled all decisions made by the Member Representative in connection with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other eventthe Represented Documents in writing.
(b) The Member Representative may shall be removed, etc. entitled to retain counsel and to incur such costs as provided in this Section 10.1(b).
(i) The the Member Representative may resign at any time.
(ii) The Member Representative may deems to be removed for any reason necessary or no reason by appropriate in connection with the vote or written consent performance of a majority in interest of its obligations under this Agreement, and the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed reimbursed by the vote or written consent Members for all such fees and expenses (including reasonable attorneys’ fees and expenses and any fees and costs of the Majority Holders.
(iv) Notice of such vote Accounting Firm pursuant to Section 2.09 or a copy Section 2.14). In furtherance of the written consent appointing foregoing, Parent shall deposit the Expense Holdback Amount with the Member Representative in accordance with Section 2.10(d)(v) in order for the Member Representative to pay any such new fees and expenses. As soon as practicable following the completion of all procedures described under Section 2.14, Section 12.01 and the Escrow Agreement, the Member Representative shall be sent to Holdings, such appointment to be effective upon deliver the later balance of the date indicated Expense Holdback Amount (if any) to the Holdings Pre-Closing Members (in proportion to the amount the Closing Merger Consideration payable to such consent or the date Holdings Pre-Closing Member pursuant to Section 2.02(c) was reduced by such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) aboveExpense Holdback Amount).
(c) The Member Representative shall act (in its capacity as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(dsuch) The Member Representative shall not be liable to any Represented Party, Parent, Parent Merger Sub or any other person in the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court absence of competent jurisdiction to have constituted its gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith)willful misconduct. The Target Company Members shall shall, severally and not jointly (pro rata in accordance with their Pro Rata Interestseach Member’s Holdings Allocation Percentage), indemnify but not jointly, indemnify, defend and hold harmless the Member Representative and its successors and assigns from and against, compensate it for, reimburse it for and pay against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, Damages arising out as a result of and or incurred in connection with its activities as any actions taken or omitted to be taken by the Member Representative under this Agreement (the “Representative Losses”)Representative, in each case as such Representative Loss is suffered Damages are incurred or incurredsuffered; provided, however, that in the event it is finally adjudicated that a Representative Loss such Damages or any portion thereof was were primarily caused by the gross negligence, fraud, intentional negligence or willful misconduct or bad faith of the Member Representative, the Member Representative shall will reimburse the Target Company Members the amount of such indemnified Representative Loss Damages attributable to such gross negligence, fraud, intentional misconduct negligence or bad faithwillful misconduct. The If not paid directly to the Member Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (any such Damages may be recovered by the Member Representative from amounts released from the Escrow Funds to the Members after the Expiration Date in accordance with Section 2.15 and the terms of the Escrow Agreement and/or the Expense Holdback Amount; provided, however, that this does not relieve the Members from their Pro Rata Interests)obligation to promptly pay such Damages as such Damages are suffered or incurred, nor does it prevent the Member Representative from seeking any remedies available to it at Law or otherwise.
(d) All of the immunities granted to the Member Representative under this Agreement shall survive the Closing and/or any termination of this Agreement. The grant of authority provided for herein is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any of the Represented Parties, but shall terminate with respect to the Acquired Entities upon the consummation of the Closing.
(e) The Member Representative may be changed from time to time upon written notice from the Members to Parent; provided, however, that the Member Representative may not be removed unless Members representing a greater than fifty percent (50%) Holdings Allocation Percentage agree in writing to such removal and to the identity of the substituted Member Representative and such substituted Member the substitution is reasonably acceptable to Parent. Upon any resignation of the Member Representative, or any other vacancy in the position of the Member Representative, such vacancy may be filled by such a majority.
Appears in 3 contracts
Sources: Transaction Agreement (MSG Entertainment Spinco, Inc.), Transaction Agreement (MSG Entertainment Spinco, Inc.), Transaction Agreement (Madison Square Garden Co)
Member Representative. (a) By approving The parties have agreed that it is desirable to designate a representative to act on behalf of the holders of Units for certain limited purposes, as specified herein (the "Member Representative"). The parties have designated Ned Scherer as the initial Member Representative, and approval of this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Target Company Member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ as the initial Member Representative. The Member Representative will act as such Person’s representative and attorney-in-fact to act by or on behalf of such Person with respect to this Agreement and to take any and all actions and make any decisions required or permitted to be taken by Member Representative pursuant to this Agreement, including the exercise requisite holders of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders each class of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative Units shall constitute notice to or from each ratification and approval of the Target Company Memberssuch designation. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The , and the Member Representative may be removed for any reason or no reason by the vote or written consent of Persons that collectively owned Units constituting more than a majority in interest of the Target Company Members according outstanding Units immediately prior to each Target Company Member’s Pro Rata Share the Effective Time (the “"Majority Holders”Unitholders"); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) . In the event of that the death, incapacity, resignation Member Representative has resigned or removal of Member Representativebeen removed, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to HoldingsUnitholders, such appointment to be become effective upon the later of written acceptance thereof by the date indicated in new Member Representative.
(b) The Member Representative shall have such consent or powers and authority as are necessary to carry out the date such notice is received by Holdingsfunctions assigned to it under this Agreement; provided, however, that until such notice is received, Holdingsthe Member Representative will have no obligation to act on behalf of the holders of Units and Company Options except as expressly provided herein. The Member Representative will have no liability to Parent, Merger Sub and Sub, the Surviving Entity shall Company or the holders of Units with respect to actions taken or omitted to be taken in its capacity as Member Representative, except with respect to the Member Representative's willful misconduct. The Member Representative will at all times be entitled to rely on any directions received from the decisions and actions of Majority Unitholders; provided, however, that the prior Member Representative as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable required to follow any such direction, and shall be under no obligation to take any action in its capacity as Member Representative, unless the Target Company Members for actions taken pursuant Member Representative has been provided with funds, security or indemnities which, in the sole determination of the Member Representative, are sufficient to this Agreement, except protect the Member Representative against the Losses which may be incurred by the Member Representative in responding to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence direction or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by taking such action. The Member Representative shall be conclusive evidence of good faith). The Target Company Members entitled to engage such counsel, experts and other agents and consultants as it shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and deem necessary in connection with exercising its activities as powers and performing its function hereunder and (in the absence of bad faith on the part of the Member Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons. Any expenses incurred by the Member Representative under this Agreement (with respect to the “foregoing shall be solely the responsibility of the holders of the Units as of the Closing, and in no event shall the Member Representative Losses”)be entitled to reimbursement for any such expenses from the Escrow Fund, in each case except as such Representative Loss is suffered or incurred; provided, that set forth in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests)Escrow Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Omniture, Inc.), Merger Agreement (Websidestory Inc)
Member Representative. (a) By approving this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Target Company Member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ as the initial Member Representative. The Member Representative will act as such Person’s representative and attorney-in-fact to act on behalf of such Person with respect to this Agreement and to take any and all actions and make any decisions required or permitted to be taken by Member Representative pursuant to this Agreement, including the exercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(viiii) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(viiiv) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viiiv) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings Verano shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, hereunder shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this SectionSection 9.02, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative , and may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Members of each Company Members according to each Target Company Member’s Pro Rata Share (the “Majority HoldersMembers”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders Members having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) . In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed promptly by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by HoldingsMembers; provided, provided that until such notice is received, Holdings, Merger Sub Verano and the any Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests9.02(a).
Appears in 2 contracts
Sources: Merger Agreement (Verano Holdings Corp.), Merger Agreement (Verano Holdings Corp.)
Member Representative. (a) By approving For the purposes of this Section 9.05, the Continuing Members hereby appoint, as of the date of this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittalwith retroactive effect if necessary, each Target Company Member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ Cuattro, as the initial representative of the Continuing Members as described in this Section 9.05(a) and elsewhere in this Agreement (in such capacity, the “Member Representative”). The Member Representative will act is designated as such Person’s representative and the attorney-in-fact to act and agent for and on behalf of such Person each Continuing Member and their respective heirs, successors and assigns with respect to the rights and obligations under this Agreement Section 9.05 and to take the taking by the Member Representative of any and all actions and make the making of any decisions required or permitted to be taken by the Member Representative pursuant under this Section 9.05. The Member Representative shall have no authority or power to this Agreement, including the exercise act on behalf of the Company. The Member Representative shall have authority and power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders to act on behalf of courts the Continuing Members with respect to claims for indemnification made the exercise or performance of all rights or obligations arising under this Section 9.05. The Continuing Members shall be bound by Holdings pursuant to Article VI all actions taken and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out executed by the intent of this Agreement and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying connection with its duties this Section 9.05, and obligations; and
(viii) take all actions necessary or appropriate in Heska and the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings Company shall be entitled to deal exclusively with rely on any action or decision of the Member Representative. Without limiting the generality of the foregoing, the Member Representative on shall have full power and authority to interpret all matters relating to the terms and provisions of this Agreement on behalf of all the Continuing Members and their respective heirs, successors and assigns. The Continuing Members hereby appoint and constitute the Member Representative the true and lawful attorney-in-fact of the Continuing Members, with full power in their name and on their behalf to act according to the terms of this Agreement to do all things and to perform all acts including exercising any right or performing any obligation under this Section 9.05 and execute and deliver any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement. This power of attorney is coupled with an interest and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated or affected by subsequent disability or incapacity of any Continuing Member or by any act of any Continuing Member or by operation of law, whether by such person’s death, disability, protective supervision or any other event. Without limiting the foregoing, this power of attorney is to ensure the performance of a special obligation and, accordingly, each Continuing Member shall be deemed to have waived and renounced its, his or her right to renounce this power of attorney unilaterally. Each Continuing Member shall be deemed to have waived any and all defenses that may be available to contest, negate or disaffirm the action of the Member Representative taken in good faith under this Agreement. Notwithstanding the power of attorney granted in this Section 9.05, no agreement, instrument, acknowledgement or other act or document shall be ineffective (including Article VIIIagainst the Continuing Member signing such instrument) solely by reason of a Continuing Member (instead of the Member Representative) having signed or given the same directly. The provisions of this Section 9.05(a) shall in no way impose any obligations on Heska or the Company. In particular, Heska and the Company shall be fully protected in relying upon and shall be entitled to rely conclusively (without further evidence upon, and shall have no liability to any of any kind whatsoever) on any document executed the Continuing Members with respect to actions, decisions or purported to be executed on behalf determinations of any Target Company Member by the Member Representative. Heska and the Company shall be entitled to assume that all actions, decisions and on determinations of the Member Representative are fully authorized. At any other action taken or purported to be taken on behalf time during the term of any Target Company Member this Agreement, a majority-in-interest of the Continuing Members may, by written consent, remove and replace the Member Representative, as being fully binding upon such Person. Notices or communications to or from The newly appointed Member Representative shall constitute deliver notice to of his or from each her appointment and copies of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating such consents to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such PersonHeska as soon as practicable. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such Such appointment to will be effective upon the later of the date indicated in such the consent or the date such notice is received by Holdings; providedthe Company and Heska. In the event that the Member Representative dissolves, that until resigns as such or becomes unable or unwilling to continue in its capacity as Member Representative, a majority-in-interest of the Continuing Members shall, by written consent, appoint a new Member Representative. The newly appointed Member Representative shall deliver notice of his or her appointment to the Company and Heska as soon as practicable. Such appointment will be effective upon the later of the date indicated in the consent or the date such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made received by the Member Representative, the Member Representative must notify the Target Company Membersand Heska.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests).
Appears in 2 contracts
Sources: Operating Agreement (Heska Corp), Operating Agreement (Heska Corp)
Member Representative. (a) By approving As a result of the approval of this Agreement and the transactions contemplated hereby by the Requisite Member Vote or by executing and delivering a Letter of Transmittal, each Target Company Member FSH member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ as the initial Member Representative. The Member Representative will act as such Person’s representative and attorney-in-fact to act on behalf of such Person with respect to this Agreement and the Pledge and Escrow Agreement and to take any and all actions and make any decisions required or permitted to be taken by Member Representative pursuant to this Agreement or the Pledge and Escrow Agreement, including the exercise of the power to:
(i) give and receive notices and communications;
(ii) authorize delivery to Parent of Parent Common Stock in satisfaction of any amounts owed to Parent hereunder or in satisfaction of claims for indemnification made by Parent hereunder;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.152.10;
(iiiiv) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings Parent pursuant to Article VI and Article VIII;
(ivv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(vvi) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary DocumentDocument (including the Pledge and Escrow Agreement);
(vivii) make all elections or decisions contemplated by this Agreement and any Ancillary DocumentDocument (including the Pledge and Escrow Agreement);
(viiviii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viiiix) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings Parent shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company FSH Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company FSH Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company FSH Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings Parent relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company FSH Members and shall be final, binding and conclusive upon each such Person. No Target Company FSH Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company FSH Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative , and may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company FSH Members according to each Target Company FSH Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) . In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests).Majority
Appears in 2 contracts
Sources: Merger Agreement (United Insurance Holdings Corp.), Merger Agreement (United Insurance Holdings Corp.)
Member Representative. (a) By approving this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Target Company Member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ as the initial Member Representative. The Member Representative will act as such Person’s representative and attorney-in-fact to act on behalf of such Person with respect to this Agreement and to take any and all actions and make any decisions required or permitted to be taken by Member Representative pursuant to this Agreement, including the exercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings Parent pursuant to Article ARTICLE VI and Article ARTICLE VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article ARTICLE VI and Article ARTICLE VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings Parent shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article ARTICLE VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings Parent relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative , and may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share Interest (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) . In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) . Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to HoldingsParent, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by HoldingsParent; provided, that until such notice is received, HoldingsParent, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a10.01(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata InterestsInterest), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Parent will, or will cause the Surviving Entity to, promptly reimburse Member Representative Losses shall for any reasonable out-of-pocket administrative expenses up to a maximum of one hundred thousand dollars ($100,000) (the “Representative Fund”) reasonably incurred by Member Representative in the course of performing such Member Representative duties necessary to effect the transactions contemplated by this Agreement, against appropriate receipts or other supporting documentation, as may be satisfied requested by Parent or the Target Company MembersSurviving Entity. All requests for reimbursement from the Representative Fund by Member Representative must be received, severally together with the appropriate receipts and not jointly supporting documentation, by Parent no later than the earlier of (in accordance with their Pro Rata Interests)i) the Third Milestone Date and (ii) the Satisfaction Date of the Third Milestone.
Appears in 2 contracts
Sources: Merger Agreement (Abeona Therapeutics Inc.), Merger Agreement (Abeona Therapeutics Inc.)
Member Representative. (a) By approving the execution and delivery of this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of TransmittalAgreement, each Target Company Member shall have hereby irrevocably authorized constitutes and appointed Mappoints ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as the initial Member Representative. The Member Representative will act as such Person’s representative true and lawful agent and attorney-in-fact (the “Member Representative”) of such Member with full power of substitution to act in the name, place, stead and on behalf of such Member with respect to the terms and provisions of this Agreement and the Transaction Documents as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents, as Member Representative shall deem necessary, appropriate or advisable, in such Person’s sole discretion, in connection with the Acquisition or the Transaction Documents, including the power:
(i) to execute and deliver all Transaction Documents, certificates, and other documents that Member Representative deems necessary, appropriate or advisable in connection with the consummation of the Acquisition;
(ii) to employ, at the expense of Members, and obtain the advice of legal counsel, accountants and other professional advisors as Member Representative, in such Person’s sole discretion, deems necessary or advisable in the performance of such Person’s duties as Member Representative and to rely on their advice and counsel;
(iii) to amend or waive any provision of this Agreement or any Transaction Document, provided that any such amendment or waiver, if material to the rights and obligations of Members in the reasonable judgment of Member Representative, shall be taken in the same manner with respect to all Members unless otherwise agreed by each Member who is subject to any disparate treatment of a potentially adverse nature;
(iv) to agree with Parent with respect to any matter or thing Member Representative deems necessary, appropriate or advisable in connection with the provisions of this Agreement calling for the agreement of Members, give and receive notices on behalf of all Members and act on behalf of Members in connection with any matter as to which Members are or may be obligated to indemnify any Parent Indemnitee under this Agreement, all in the absolute discretion of the Member Representative;
(v) to settle all disputes and claims that arise under this Agreement or any Transaction Document; and
(vi) to do or refrain from doing any further act or deed on behalf of Members that the Member Representative deems necessary, appropriate or advisable in such Person’s sole discretion relating to the subject matter of this Agreement as fully and completely as any Member could do if personally present and acting.
(b) The appointment of Member Representative in this Section 8.11 shall be deemed coupled with an interest and shall be irrevocable, and shall be binding and enforceable on and against each Member and its successors, assigns and Affiliates, and Parent and any other Person (including the Company) may conclusively and absolutely rely, without inquiry, upon any action of Member Representative as the act of each Member in all matters referred to in this Agreement or the Transaction Documents. Each Member hereby ratifies and confirms all that Member Representative shall do or cause to be done by virtue of Member Representative’s appointment as Member Representative of such Member. Member Representative shall act for all Members on all of the matters set forth in this Agreement in the manner Member Representative believes to be in the best interest of all Members and consistent with Member Representative’s obligations under this Agreement, but Member Representative shall not be responsible to any Member for any liability any Member may suffer by reason of the performance by Member Representative of Member Representative’s duties under this Agreement, including any liability resulting from any error of judgment, mistake of fact or Law, or any act done or omitted to be done in good faith, other than liability arising from willful violation of Law or gross negligence in the performance of Member Representative’s duties under this Agreement.
(c) Each Member hereby expressly acknowledges and agrees that Member Representative is authorized to act on behalf of such Person with respect to this Agreement and to take Member notwithstanding any and all actions and make any decisions required dispute or permitted to be taken by Member Representative pursuant to this Agreement, including the exercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises ofdisagreement among Members, and comply with orders or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub Parent and the Surviving Entity Company shall be entitled to rely on any and all action taken by Member Representative under this Agreement or the decisions Transaction Documents without liability to, or obligation to inquire of, any Member. Members do hereby jointly and actions severally agree to indemnify and hold Member Representative harmless from and against any and all liability (including fees and expenses of legal counsel) reasonably incurred or suffered as a result of the prior performance of Member Representative as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary Representative’s duties to the Target Company Members. If under this Agreement except for actions by the Member Representative has a personal conflict of interest with respect to any action, decision constituting gross negligence or determination to be made by the Member Representative, the Member Representative must notify the Target Company Memberswillful misconduct.
(d) The In the event ▇▇▇▇▇▇▇ ▇▇▇▇▇ (including any subsequent Member Representative shall not be liable to the Target Company Members for actions taken appointed pursuant to this Section 8.11) resigns, or otherwise becomes unable to serve, Members shall, within thirty days after notice thereof, determine and designate a successor Member Representative who shall have all of the rights, powers and authority conferred on Member Representative in this Agreement, except and if Members fail to the extent designate such actions shall have been determined by successor within such period, any Member or Parent may petition a court of competent appropriate jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice for appointment of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of successor Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests).
Appears in 1 contract
Member Representative. (a) By approving virtue of the adoption of this Agreement and the transactions contemplated hereby or approval of the Mergers and the other Transactions by executing the Company Members pursuant to the Company Requisite Approval and delivering a Letter of Transmittalby the Blocker Securityholders pursuant to the Blocker Requisite Approvals, each Target of the Company Member shall have Securityholders irrevocably authorized constituted and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ Insight Venture Partners, LLC, from and after the date hereof (and by its execution of this Agreement as Member Representative, Insight Venture Partners, LLC hereby accepts its appointment), as the initial Member Representative. The Member Representative will act as such Person’s representative true, exclusive and lawful agent and attorney-in-fact (solely in such capacity, the “Member Representative”) of the Company Securityholders receiving consideration hereunder to act in the name, place and stead of the Company Securityholders in connection with the Transactions, in accordance with the terms and provisions of this Agreement, and to act on behalf of such Person with respect to this Agreement and to take the Company Securityholders in any and all actions and make any decisions required or permitted to be taken by Member Representative pursuant to Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Member Representative shall deem necessary or appropriate in connection with the Transactions, including the exercise of the power topower:
(i) give to execute and receive notices deliver all amendments, waivers, ancillary agreements, certificates and communicationsdocuments that the Member Representative deems necessary or appropriate in connection with the consummation of the Transactions;
(ii) agree to execute and deliver all amendments and waivers to this Agreement that the Member Representative deems necessary or appropriate, whether prior to, negotiate, enter into settlements and compromises of, and comply with orders at or otherwise handle any other matters described in Section 2.15after the Closing;
(iii) agree to, negotiate, enter into settlements to receive funds for the payment of expenses of the Company Securityholders and compromises of, and comply with orders of courts with respect to claims apply such funds in payment for indemnification made by Holdings pursuant to Article VI and Article VIIIsuch expenses;
(iv) litigate, arbitrate, resolve, settle to do or compromise refrain from doing any claim for indemnification pursuant further act or deed on behalf of the Company Securityholders that the Member Representative deems necessary or appropriate in its sole discretion relating to Article VI the subject matter of this Agreement as fully and Article VIIIcompletely as the Company Securityholders could do if personally present;
(v) execute to receive service of process in connection with any claims under this Agreement, and deliver all documents necessary or desirable to carry out the intent of receive and forward notices and other communications pursuant to this Agreement and any Ancillary Document;Agreement; and
(vi) make all elections to (A) dispute or decisions contemplated refrain from disputing, on behalf of each Company Securityholder relative to any amounts to be received by such Person under this Agreement Agreement, any claim made by nCino, Parent or the Merger Subs under this Agreement, (B) negotiate and compromise, on behalf of each such Company Securityholder, any Ancillary Document;dispute that may arise under, and exercise or refrain from exercising any remedies available under, this Agreement, and (C) execute, on behalf of each such Company Securityholder, any settlement agreement, release or other document with respect to such dispute or remedy; and
(vii) engageengage attorneys, employ or appoint any accountants, agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed consultants on behalf of the Company Securityholders in connection with this Agreement and paying any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other eventfees related thereto.
(b) The Member Representative may be removedremoved or replaced only upon delivery of written notice to the SimpleNexus Surviving Company by the Company Securityholders beneficially owning at least a majority of outstanding Company Units (on an as-converted to Company Common Unit basis) as of immediately prior to the Company Effective Time. Parent, etc. as provided in this Section 10.1(b).
(i) The the nCino Surviving Corporation, the SimpleNexus Surviving Company and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Member Representative may resign at any time.
(ii) The in all matters referred to herein. All acts of the Member Representative may hereunder in its capacity as such shall be removed for any reason or no reason by the vote or written consent of a majority in interest deemed to be acts on behalf of the Target Company Members according to each Target Company Member’s Pro Rata Share (Securityholders and not of the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) above.
(c) individually. The Member Representative shall act as a fiduciary with fiduciary duties to for the Target Company Members. If Securityholders on all of the matters set forth in this Agreement in the manner the Member Representative has believes to be in the best interest of the Company Securityholders and consistent with the obligations under this Agreement, but the Member Representative shall not be responsible to the Company Securityholders (or the Cash Plan Award Holders) for any damages the Company Securityholders (or the Cash Plan Award Holders) may suffer by the performance of its duties under this Agreement, other than damages arising from willful violation of the Law or gross negligence in the performance of the duties of the Member Representative under this Agreement as determined in a personal conflict final and non-appealable judgment of interest a court of competent jurisdiction. The Member Representative may seek the advice of legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as the Member Representative to nCino, Parent, the Merger Subs, the Company, the Blockers, the Company Securityholders or the Cash Plan Award Holders and shall be fully protected with respect to any actionaction taken, decision omitted or determination to be made suffered by it in good faith in accordance with the Member Representative, the Member Representative must notify the Target Company Members.
(d) advice of such counsel. The Member Representative shall not be liable to the Target by reason of this Agreement have a fiduciary relationship in respect of any Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence Securityholder or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith)Cash Plan Award Holder. The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests)Securityholders will indemnify, indemnify defend and hold harmless the Member Representative from and against, compensate it for, reimburse it for and pay against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, damages fees, costs and expensesexpenses (including the reasonable, including reasonable attorneys’ documented out-of-pocket fees and disbursementsexpenses of counsel and experts and their staffs and relating to document location, arising out of duplication and in connection with its activities as Member Representative under this Agreement shipment) (the collectively, “Representative Losses”)) arising out of or in connection with the Member Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event it that any such Representative Loss is finally adjudicated that a Representative Loss or any portion thereof was primarily to have been directly caused by the gross negligence, fraud, intentional gross negligence or willful misconduct or bad faith of the Member Representative, the Member Representative shall will reimburse the Target Company Members Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence, fraud, intentional misconduct gross negligence or bad faithwillful misconduct. If not paid directly to the Member Representative by the Company Securityholders, any such Representative Losses may be recovered by the Member Representative from the funds in the Member Expense Fund at such time as remaining amounts would otherwise be distributable to the Company Securityholders; provided, that while this section allows the Member Representative to be paid from the aforementioned sources of funds, this does not relieve the Company Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Member Representative from seeking any remedies available to it at law or otherwise. In no event will the Member Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. The foregoing indemnities will survive the Closing or the resignation or removal of the Member Representative Losses or the termination of this Agreement.
(c) The Member Representative shall be satisfied use the Member Expense Fund to pay any expenses incurred by the Target Member Representative in fulfilling its obligations hereunder and shall distribute (i) to the Exchange Agent for further distribution to the Non-Blocker Members and Blocker Securityholders their respective aggregate Pro Rata Portion of any remaining balance of the Member Expense Funds and (ii) to the SimpleNexus Surviving Company Members, severally and not jointly (for further distribution to the holders of Cash Plan Awards in accordance with Section 3.2(k)(iii) their respective aggregate Pro Rata InterestsPortion of any remaining balance of the Member Expense Funds, upon completion by the Member Representative of its duties hereunder. Any such distributions from the Member Expense Fund in accordance with the immediately preceding sentence shall be paid (x) to the Exchange Agent for further distribution to the Non-Blocker Members and Blocker Securityholders and (y) to the SimpleNexus Surviving Company for further distribution to the holders of Cash Plan Awards in accordance with Section 3.2(k)(iii), in each case, with equal priority and pro rata based on each such Company Securityholder’s or Cash Plan Award Holder’s Pro Rata Portion of the Member Expense Fund. The Company Securityholders and Cash Plan Award Holders will not receive any interest or earnings on the Member Expense Fund and irrevocably transfer and assign to the Member Representative any ownership right that they may otherwise have had in any such interest or earnings. The Member Representative will not be liable for any loss of principal of the Member Expense Fund other than as a result of its gross negligence or willful misconduct as determined in a final and non-appealable judgment of a court of competent jurisdiction. For tax purposes, the Member Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders and the Cash Plan Award Holders at the time of Closing.
Appears in 1 contract
Sources: Merger Agreement (Ncino, Inc.)
Member Representative. (a) By approving Sellers by the execution and delivery of this Agreement each hereby irrevocably constitute and appoint the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Target Company Member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ Representative as the initial Member Representative. The Member Representative will act as such Person’s representative true and lawful agent and attorney-in-fact of such Seller with full powers of substitution to act in the name, place and stead of such Seller with respect to the performance on behalf of such Person with respect to this Agreement Seller under the terms and provisions hereof and to take any do or refrain from doing all such further acts and things, and to execute all actions and make any decisions required or permitted to be taken by such documents, as the Member Representative pursuant to this Agreementshall deem necessary or appropriate in connection with any transaction contemplated hereunder, including the exercise of the power to:
(i) give act exclusively for such Seller with respect to all indemnification matters referred to herein, including the right to compromise or settle such claim on behalf of such Seller, except for any such claim related to such Seller’s individual representations and receive notices and communicationswarranties contained in Article IV or any other covenants or agreements of such Seller contained in this Agreement;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle of courts and awards of arbitrators with respect to any other matters described in Section 2.15claims hereunder;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect amend or waive any provision hereof (including any condition to claims for indemnification made by Holdings pursuant to Article VI and Article VIIIClosing) in any manner that does not differentiate among any Seller;
(iv) litigateemploy, arbitrateobtain and rely upon the advice of legal counsel, resolveaccountants and other professional advisors as the Member Representative, settle in his or compromise any claim for indemnification pursuant to Article VI and Article VIIIits sole discretion, deems necessary or advisable in the performance of the duties of the Member Representative;
(v) execute act for Sellers with respect to all Purchase Price matters and deliver all documents necessary or desirable Purchase Price adjustment matters referred to carry out the intent of this Agreement and any Ancillary Documentherein;
(vi) make all elections incur any expenses, liquidate and withhold assets received on behalf of Sellers prior to their payment to Sellers to the extent of any amount that the Member Representative deems necessary for payment of or decisions contemplated by as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing bank account established for such purpose (and each Seller hereby authorizes and directs the Member Representative to withhold at Closing from the Purchase Price payable to such Seller such Seller’s Allocable Portion of an amount equal to $300,000, which will be available to the Member Representative solely to cover expenses of the Member Representative incurred in connection with his duties under this Agreement (including in connection with any dispute or claim with respect to the transactions contemplated hereby and indemnities to which it is entitled as the Member Representative), with any Ancillary Documentportion of the aggregate amount so withheld not used to pay or reimburse such expenses to be paid by the Member Representative, promptly upon the completion of such duties, to Sellers in accordance with their respective Allocable Portions;
(vii) engagereceive and object to all notices, employ or appoint any agents or representatives (including attorneys, accountants communications and consultants) to assist Member Representative in complying with its duties and obligationsdeliveries hereunder on behalf of Sellers; and
(viii) take all actions do or refrain from doing any further act or deed on behalf of Sellers that the Member Representative deems necessary or appropriate appropriate, in the good faith judgment sole discretion of the Member Representative, relating to the subject matter hereof as fully and completely as Sellers could do if personally present and acting and as though any reference to such Seller herein was a reference to the Member Representative.
(b) The appointment of the Member Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively deemed coupled with Member Representative on all matters relating to this Agreement (including Article VIII) an interest and shall be entitled irrevocable, and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Member Representative as the act of each Seller in all matters referred to rely conclusively herein.
(without further evidence c) In the event the Member Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Member Representative shall be the Person that Sellers holding (or which held) a majority-in-interest of any kind whatsoeverthe Units appoint provided, however, that the Member Representative shall not cease to function in such capacity unless and until such successor has been so appointed, the Buyer has been notified of the identity and contact information of such successor and the Buyer consents in writing to the appointment of such successor.
(d) on any document executed or purported to No bond shall be executed on behalf required of any Target Company Member by the Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company the Member by Member Representative, as being fully binding upon such PersonRepresentative shall receive no compensation for his services. Notices or communications to or from the Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Seller.
(e) The Member Representative hereundershall not be liable to any Seller for any act done or omitted hereunder as Member Representative while acting in good faith and without gross negligence, including and any agreement between act done or omitted pursuant to the advice of counsel shall be conclusive evidence of satisfaction of such standard of care. Sellers shall individually and ratably (in accordance with their Allocable Portion) indemnify the Member Representative and Holdings relating hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Member Representative and arising out of or in connection with the acceptance or administration of its duties hereunder; provided, however, that nothing in this Article X shall limit any of the Member Representative’s obligations to Buyer or any Buyer Indemnified Party hereunder.
(f) A decision, act, consent or instruction of the defense, payment or settlement of any claims for indemnification hereunder, Member Representative shall constitute a decision or action of all Target Company Members Sellers and shall be final, binding and conclusive upon each such PersonSeller. No Target Company Member shall have the right to object toBuyer may rely upon any decision, dissent fromact, protest consent or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest instruction of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) abovebeing the decision, act, consent or instruction of each and every Seller.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Novation Companies, Inc.)
Member Representative. NeighborhoodFind and each Member hereby irrevocably constitute and appoint Avalon Equity Fund L.P. (a) By approving this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Target Company Member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ as the initial "Member Representative. The Member Representative will act "), with full power of substitution and re-substitution, as such Person’s representative its and their true and lawful agent, attorney-in-fact and representative (such entity and its appointed and designated successor or successors being herein referred to as the "Member Representative"), with full power to act for and on behalf of NeighborhoodFind and the Members, and each of them, for all purposes under this Agreement and in connection with the Merger including, without limitation, for purposes of: (i) determining the amount of any Damages (as such Person term is hereinafter defined) suffered or incurred by MonsterDaata and the number of shares and amount of assets held under the Escrow Agreement to be transferred or distributed to MonsterDaata in accordance with respect the terms of the Escrow Agreement, (ii) determining the amount of Member Damages (as that term is hereinafter defined) suffered or incurred by the Members, (iii) receiving notices from MonsterDaata given under this Agreement, of which the Member Representative will give a copy to the other Members, (iv) approving and agreeing with MonsterDaata as to additions, deletions, changes, modifications and amendments to this Agreement and to take any and all actions and make any decisions required or permitted to be taken by Member Representative pursuant to this the Annexes hereto including, without limitation, the Escrow Agreement, including the exercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts except with respect to claims for indemnification made by Holdings pursuant any addition, deletion, change, modification or amendment to Article VI a material financial term or condition of any of such documents that would materially, financially and Article VIII;
(iv) litigateadversely affect the Members, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute settling finally and deliver all documents necessary completely any disputes or desirable controversies among the parties hereto (other than solely among the Members) with respect to carry out the intent interpretation or effect of or damages or relief under this Agreement and any Ancillary Document;
and all transactions contemplated hereby (vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engageincluding, employ or appoint any agents or representatives (including attorneyswithout limitation, accountants and consultants) to assist under the Escrow Agreement). The Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with reimbursement by the Members from the consideration actually payable to the Members or otherwise for all reasonable costs and expenses incurred by it in fulfilling its duties hereunder, and the Members agree among themselves that such costs and expenses shall be borne pro rata among them according to the number of membership interests owned immediately prior to the Effective Time. The Members agree that the Member Representative on all matters relating may make reasonable requests for advances to this Agreement (including Article VIII) cover such costs and shall expenses, and the Members will promptly make such advances. In no event will MonsterDaata be entitled to rely conclusively (without further evidence liable for any costs or expenses of any kind whatsoever) on nature incurred by the Member Representative in its capacity as such. NEIGHBORHOODFIND AND EACH MEMBER, JOINTLY AND SEVERALLY, AGREE THAT THE MEMBER REPRESENTATIVE SHALL HAVE NO LIABILITY TO THE MEMBERS FOR ACTION TAKEN OR OMITTED IN GOOD FAITH IN EXERCISING THE AUTHORITY GRANTED UNDER THIS SECTION 1.12. MonsterDaata shall not have any document executed obligation or purported liability to be executed on behalf indemnify or defend the Member Representative in respect of any Target Company Member by Member Representative, and on any other action taken claim or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from liability asserted against the Member Representative shall constitute notice to by any Member or from each of its successors or assigns. All determinations, decisions, actions and the Target Company Members. Any decision or action like made by the Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, conclusive and binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company all Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative persons claiming under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests)through them.
Appears in 1 contract
Member Representative. (a) By approving this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Target Company Member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ as the initial Member Representative. The Member Representative will act as such Person’s representative and attorney-in-fact to act on behalf of such Person with respect to this Agreement and the Promissory Note and to take any and all actions and make any decisions required or permitted to be taken by Member Representative pursuant to this AgreementAgreement or the Promissory Note, including the exercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary DocumentDocument (including the Promissory Note);
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary DocumentDocument (including the Promissory Note);
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative , and may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) . In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) . Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity Company shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this AgreementAgreement or the Promissory Note, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata InterestsShares), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement and the Promissory Note (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by from the Target Company Members, severally and not jointly (in accordance with their Pro Rata InterestsShares).
Appears in 1 contract
Sources: Merger Agreement (GigCapital2, Inc.)
Member Representative. (a) By approving this Agreement Each Member hereby irrevocably nominates, constitutes and the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Target Company Member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ appoints Cerberus Princeton LLC as the initial agent and true and lawful attorney in fact of the such Member (the “Member Representative. The ”), with full power of substitution, to act in the name, place and stead of the Members for purposes of executing any documents and taking any actions that the Member Representative will act as such Person’s representative and attorney-in-fact to act on behalf of such Person with respect to this Agreement and to take any and all actions and make any decisions required or permitted may, in its sole discretion, determine to be taken by Member Representative pursuant necessary, desirable or appropriate in all matters relating to or arising out of this Agreement, including in connection with any claim for indemnification, compensation or reimbursement under ARTICLE 10 or under the exercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders Escrow Agreement or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI Milestone Payments. Cerberus Princeton LLC hereby accepts its appointment as the Member Representative. Cerberus Princeton LLC shall have all the rights, responsibilities, powers and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out privileges of the intent of Member Representative set forth in this Agreement and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to or arising out of this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunderAgreement, including in connection with any agreement between Member Representative and Holdings relating claim for indemnification, compensation or reimbursement under ARTICLE 10 or under the Escrow Agreement or with respect to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other eventMilestone Payments.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according grant to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest full authority to execute, deliver, acknowledge, certify and file with respect to the Indemnity Escrow Fund, Milestone Payments, or otherwise on behalf of the Members (in the name of any action, decision or determination to be made by all of the Member Representative, Members or otherwise) any and all documents that the Member Representative must notify may, in its sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as the Target Company Members.
(d) The Member Representative shall not may, in its sole discretion, determine to be liable to the Target Company Members for actions taken pursuant to appropriate, in performing its duties as contemplated by this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence Escrow Agreement and any other contract or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and document executed in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members transactions hereby other than with respect to the amount delivered at the Closing and out of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests).the
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Valeant Pharmaceuticals International)
Member Representative. (a) By approving this Agreement Each Member hereby irrevocably constitutes and the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Target Company Member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇appoints ▇▇▇▇▇ as the initial Member Representative. The Member Representative will act as such PersonMember’s representative and attorney-in-fact and agent in connection with the execution and performance of its duties under this Agreement. This power is irrevocable and coupled with an interest, and shall not be affected by the death, incapacity, illness, dissolution or other inability to act of such Member.
(b) Each Member hereby irrevocably grants the Member Representative full power and authority: (i) to execute and deliver, on behalf of such Member, and to accept delivery of, on behalf of such Member, the Ancillary Agreements and such other documents as may be deemed by the Member Representative, in its sole discretion, to be appropriate to complete the Transactions; (ii) to endorse and to deliver on behalf of such Member, transfer instruments representing the Company Membership Interests to be exchanged by such Member at the Closing; (iii) to acknowledge receipt at the Closing of the consideration payable to such Member at the Closing, and to designate the manner of payment of such consideration; (iv) to (A) negotiate and compromise, on behalf of such Member, any dispute that may arise under, and to exercise or refrain from exercising any remedies available under, this Agreement; and (B) execute, on behalf of such Member, any settlement agreement, release or other document with respect to such dispute or remedy; (v) to give or agree to, on behalf of such Member, any and all consents, waivers, amendments or modifications, deemed by the Member Representative, in its sole discretion, to be necessary or appropriate, under this Agreement, and, in each case, to execute and deliver any documents that may be necessary or appropriate in connection therewith; (vi) to enforce, on behalf of such Member, any claim against Acquiror arising under this Agreement; (vii) to engage attorneys, accountants and agents at the expense of such Member; (viii) to agree, on behalf of such Member, to amend this Agreement (other than this Section 11.02(b)) or any of the instruments to be delivered to Acquiror by such Member pursuant to this Agreement; and (ix) to give such instructions and to take such action or refrain from taking such action, on behalf of such Member, as the Member Representative deems, in its sole discretion, necessary or appropriate to carry out the provisions of this Agreement.
(c) Each Member agrees to the following: (i) in all matters in which action by the Member Representative is required or permitted, the Member Representative is authorized to act on behalf of such Person with respect Member, notwithstanding any dispute or disagreement between such Member and the Member Representative, and Acquiror will be entitled to this Agreement and to take rely on any and all actions and make action taken by the Member Representative under this Agreement without any decisions required liability to, or permitted obligation to inquire of, any Member, notwithstanding any knowledge on the part of Acquiror of any such dispute or disagreement; (ii) notice to the Member Representative, delivered in the manner provided in Section 11.01, shall also be deemed to be taken by notice to such Member Representative pursuant to for purposes of this Agreement; and (iii) the power and authority of the Member Representative, as described in this Agreement, including the exercise will continue in force until all rights and obligations of the power to:such Member under this Agreement will have terminated, expired or been fully performed.
(id) give and receive notices and communications;
(ii) agree toEach Member agrees that, negotiatenotwithstanding the foregoing, enter into settlements and compromises ofat the request of Acquiror, and comply with orders or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist such Member Representative in complying with its duties and obligations; and
(viii) shall take all actions necessary or appropriate in to complete the good faith judgment of Member Representative for the accomplishment Transactions (including, with respect to such Member, delivery of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) Company Membership Interests and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each acceptance of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the deathPurchase Price therefor) individually on such Member’s own behalf, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice and to deliver any other documents required of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests)terms hereof.
Appears in 1 contract
Sources: Business Combination Agreement (Fintech Ecosystem Development Corp.)
Member Representative. (a) By approving this Agreement and the transactions contemplated hereby or by executing and delivering a Joinder, a Lock-Up Letter of Transmittaland the Investor Rights Agreement, or by receiving the benefits under this Agreement, including any consideration payable hereunder, each Target Company Member Parent Share Recipient shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ as the initial Member Representative. The Member Representative will act as of the Closing as such Person’s agent, proxy, representative and attorney-in-fact to act on behalf of such Person and their successors and assigns for all purposes in connection with respect to this Agreement and any related agreements, including to take any and all actions and make any decisions required or permitted to be taken by Member Representative Representative, in its sole judgment and as it may deem to be in the best interests of Holdings and the Parent Share Recipients, pursuant to this Agreement, including including, without limitation, the exercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.152.17, Section 2.19, and Section 2.20;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings Parent or a Parent Indemnitee pursuant to Article VI and Article VIIIIX;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIIIIX;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment of the foregoingforegoing or any other matters related to or arising from this Agreement or any Ancillary Document. Holdings After the Closing, Parent shall be entitled to deal exclusively with Holdings and Member Representative (provided that with respect to payment of any amounts owed directly to Parent by Holdings or the Parent Share Recipients, Parent shall deal with either Holdings or the applicable Parent Share Recipient) on all matters relating to this Agreement (including Article VIIIVI and Article IX) and shall be entitled to shall rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of Holdings or any Target Company Member Parent Share Recipient by Member Representative, and on any other action taken or purported to be taken on behalf of Holdings or any Target Company Member Parent Share Recipient by Member Representative, as being fully binding upon such Person. Notices After the Closing, notices or communications to or from Member Representative shall constitute notice to or from Holdings and each of the Target Company MembersParent Share Recipients. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings Parent relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of Holdings and all Target Company Members Parent Share Recipients and shall be final, binding and conclusive upon each such Person. No Target Company Member Neither Holdings nor any Parent Share Recipient shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated (except as expressly set forth in subsection (b) below) by any act of Holdings, any one or Target Company Membersmore of the Parent Share Recipients, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removedRepresentative, etc. as provided by its signature below, agrees to serve in the capacities described in this Section 10.1(b).
(i) 11.01 as of the Closing. The Member Representative may resign at any time.
(ii) The Member Representative , and may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share holders of the Holdings Membership Interests (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed by the Majority Holders without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) . In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) . Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to HoldingsParent, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by HoldingsParent; provided, that until such notice is received, HoldingsParent, Merger Sub and the Surviving Entity Corporation shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a11.01(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties not be liable to Holdings or the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision Parent Share Recipients for actions taken or determination omitted to be made by taken in connection with this Agreement or any Ancillary Document, and Holdings and each Parent Share Recipient forever voluntarily releases and discharges the Member Representative, its representatives, successors and assigns, from any and all losses, damages, liabilities, deficiencies, Actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, whether known or unknown, anticipated or unanticipated, arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to in connection with this AgreementAgreement or any Ancillary Document, except to the extent such actions by the Member Representative shall have been determined by a court of competent jurisdiction to have constituted gross negligence negligence, Fraud or involved fraud, intentional misconduct willful misconduct. The Member Representative shall not be liable for any action or bad faith (it being understood that any act done or omitted omission pursuant to the advice of counsel, accountants . Holding shall and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members the Parent Share Recipients shall severally and not jointly (in accordance with their Pro Rata InterestsShares, but for the purpose of this calculation not taking into account any Aggregate Issued Parent Shares then issued to Holdings and not distributed to the Parent Share Recipients pursuant to and in accordance with the terms and conditions of this Agreement), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, damages, liabilities, claimsdeficiencies, actionsActions, damages and expensesjudgments, including reasonable attorneys’ fees and disbursementsinterest, awards, penalties, fines, costs or expenses of whatever kind, whether known or unknown, anticipated or unanticipated, arising out of and or in connection with its activities as Member Representative under this Agreement or any Ancillary Document (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional Fraud or willful misconduct or bad faith of Member Representative, Member Representative shall reimburse Holdings or the Target Company Members Parent Share Recipients the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct Fraud or bad faithwillful misconduct. The Representative Losses shall may be satisfied recovered by the Target Company MembersMember Representative from (i) the Expense Fund (ii) Holdings, (iii) the Parent Share Recipients, severally and not jointly (in accordance with their Pro Rata InterestsShares, but for the purpose of this calculation not taking into account any Aggregate Issued Parent Shares then issued to Holdings and not distributed to the Parent Share Recipients pursuant to and in accordance with the terms and conditions of this Agreement), and (iv) any other funds that become payable to Holdings or the Parent Share Recipient under this Agreement at such time as such amounts would otherwise be distributable to Holdings or the Parent Share Recipient; provided, that while the Member Representative may be paid from the aforementioned sources of funds, this does not relieve Holdings and the Parent Share Recipients (severally and not jointly in accordance with their Pro Rata Shares) from their respective obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Member Representative be required to advance its own funds on behalf of Holdings or the Members (including the Parent Share Recipients) 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, Holdings or the Members (including the Parent Share Recipients) set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Member Representative hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Member Representative or the termination of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Vireo Growth Inc.)
Member Representative. (a) By approving virtue of the approval and adoption of this Agreement by the Members pursuant to the delivery of the Written Consent, and without the transactions contemplated hereby or need for further action by executing and delivering a Letter of Transmittalany Member, each Target Company Member shall of the Members will be deemed to have agreed to irrevocably authorized and appointed Mappoint ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (who, by execution of this Agreement, hereby accepts such appointment) as the initial Member Representative. The Member Representative will act as such Person’s representative his, her or its sole and exclusive agent, attorney-in-fact to act and as Member Representative, for and on behalf of such Person the Members with respect full power of substitution, to this Agreement give and receive notices and communications hereunder and to take any and all actions and make any decisions action permitted or required for the Members or permitted to be taken by Member Representative pursuant to under this Agreement, including the exercise of the power to:
(i) give to execute and deliver on behalf of the Members any amendment, consent or waiver under this Agreement and the Ancillary Agreements, (ii) to assert, and to agree to resolution of, all claims and disputes hereunder or thereunder, including under Section 2.9 and Section 7.4 hereof, (iii) to retain legal counsel and other professional services, at the expense of the Members, in connection with the performance by the Member Representative of this Agreement and the Ancillary Agreements, (iv) to execute and deliver on the Members’ behalf all documents and instruments which may be executed and delivered pursuant to this Agreement and the Ancillary Agreements, (v) to make and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings communications pursuant to Article VI this Agreement and Article VIII;
the Ancillary Agreements and service of process in any action arising out of or related to this Agreement and the Ancillary Documents, (ivvi) litigate, arbitrate, resolveto negotiate, settle or compromise any action arising out of or related to this Agreement or the Ancillary Agreements or any of the Contemplated Transactions hereunder or thereunder, including to take any action (or determine not to take action) in connection with the defense, prosecution, settlement, compromise or other resolution of any claim for indemnification pursuant to Article VI Sections 7.2 and Article VIII;
(v) execute 7.3, and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives to do each and every act and exercise all rights that are either (including attorneys, accountants and consultantsx) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of the Member Representative for the accomplishment of the foregoingforegoing or (y) mandated or permitted by the terms of this Agreement or the Ancillary Agreements. Holdings For the avoidance of doubt, none of the provisions of this Section 9.18 shall be entitled serve to deal exclusively with authorize, appoint or empower the Member Representative on all matters relating as the representative or exclusive agent of the Members with respect to his, her or its Letter of Transmittal (or with respect to any rights, obligations or actions to be taken thereunder). The power of attorney granted in this Agreement (including Article VIII) Section 9.18 is coupled with an interest and is irrevocable, may be delegated by the Member Representative and shall survive the death or incapacity of each Member. The Person appointed as Member Representative may be entitled changed by the Members by agreement from time to rely conclusively (without further evidence time. Notwithstanding the foregoing, in the event of a resignation of Member Representative or other vacancy in the position of Member Representative, such vacancy may be filled by a majority vote of the other Members. Neither the removal of, nor the appointment of a successor to, the Member Representative shall affect in any manner the validity or enforceability of any kind whatsoever) on any document executed actions taken or purported agreements, understandings or commitments entered into by the prior Member Representative, which shall continue to be executed effective and binding on behalf the Members. No bond will be required of any Target Company Member by Member Representative, and on Member Representative will not receive any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Personcompensation for his services. Notices or communications to or from Member Representative shall will constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other eventMember.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(d) The Member Representative shall will not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by hereunder as Member Representative shall be conclusive evidence of while acting in good faith)faith and without gross negligence or willful misconduct. The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), the Ownership Schedule) will indemnify Member Representative and hold harmless the Member Representative from and against, compensate it for, reimburse it for and pay harmless against any and all losses, liabilitiescosts, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, or expenses arising out of and or in connection with its activities as the acceptance or administration of Member Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by Member Representative under this Agreement for such purpose (“Member Representative Expenses”), which may be payable upon a notice given by the Member Representative to the Escrow Agent and Buyer out of the Indemnification Holdback Amount up to $150,000 (the “Member Representative LossesAmount”), . Any excess shall be payable by the Members to the Member Representative in each case as such Representative Loss is suffered or incurredaccordance with the Ownership Schedule; provided, that in the event it that any such Member Representative Expense is finally adjudicated that a Representative Loss to have arisen from the bad faith, gross negligence or any portion thereof was primarily caused by the gross negligence, fraud, intentional willful misconduct or bad faith of Member Representative, Member Representative shall will reimburse the Target Company other Members the their proportionate amount of such indemnified Member Representative Loss Expense attributable to such gross negligence, fraud, intentional misconduct or bad faith, gross negligence or willful misconduct. The A decision, act, consent or instruction of Member Representative, including an amendment, extension or waiver of this Agreement, will constitute a decision of the Members and will be final, conclusive and binding upon the Members; and Buyer and Merger Sub may rely upon any such decision, act, consent or instruction of the Member Representative Losses shall be satisfied by and the Target Company Members, severally Members will indemnify and not jointly (hold the Buyer Indemnitees harmless in accordance with their Pro Rata Interests)the Ownership Schedule from any action taken by Buyer and Merger Sub in accordance with instructions given by the Member Representative. The Buyer Indemnitees and Merger Sub are hereby relieved from any liability to any Person for any acts or omissions by them in accordance with such decision, act, consent or instruction of Member Representative or the failure of the Member Representative to act in accordance with this Agreement, including any act or omission by Member Representative with respect to the distribution of moneys to the Members.
Appears in 1 contract
Sources: Merger Agreement (Redfin Corp)
Member Representative. (a) By approving this Agreement and As of the transactions contemplated hereby or by executing and delivering a Letter of Transmittaldate hereof, each Target Company Member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ shall be constituted and appointed as the initial Member Representative. The Member Representative will act as such Person’s representative agent and attorney-in-fact to act (the "Member Representative") for and on behalf of such Person with respect to this Agreement and to take any and all actions and make any decisions required or permitted to be taken by Member Representative pursuant to this Agreement, including the exercise each of the power to:
(i) Members to give and receive notices and communications;
(ii) , to agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims for indemnification made by Holdings pursuant claims, and to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of the Member Representative for the accomplishment of the foregoing. Holdings Such agency may be changed (whether pursuant to vacancy, removal or resignation) by the vote of a majority of the Members from time to time upon not less than thirty (30) days prior written notice to Parent. No bond shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence required of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by the Member Representative, and the Member Representative shall receive no compensation for its services, except for payment by the Members of expenses, including fees of counsel, reasonably incurred by the Member Representative in connection with the performance of its duties hereunder.
(b) The Member Representative shall not be liable for any act done or omitted hereunder as Member Representative while acting in good faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Members shall severally indemnify the Member Representative and hold such agent harmless against any loss, liability or expense incurred without bad faith on any other action taken the part of the Member Representative and arising out of or purported to be taken on behalf in connection with the acceptance or administration of any Target Company Member by the Member Representative's duties hereunder.
(c) A decision, as being fully binding upon such Person. Notices act, consent or communications to or from instruction of the Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have Member, and Parent may rely upon any decision, act, consent or instruction of the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removedtaken in such manner as being the decision, etcact, consent or instruction of each and every Member. as provided in this Section 10.1(b).
(i) The Member Representative may resign at Parent is hereby relieved from any time.
(ii) The Member Representative may be removed liability to any person for any reason acts done by them in accordance with such decision, act, consent or no reason by the vote or written consent of a majority in interest instruction of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests).
Appears in 1 contract
Sources: Merger Agreement (Xicor Inc)
Member Representative. (a) By approving this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, Transmittal each Target Company Member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ as the initial Member Representative. The Member Representative will act as such Person’s representative and attorney-in-fact to act on behalf of such Person with respect to this Agreement and to take any and all actions and make any decisions required or permitted to be taken by Member Representative pursuant to this Agreement, including the exercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15matters;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(viiv) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(viiv) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viiivi) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings Parent shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings Parent relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative , and may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) . In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) . Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to HoldingsParent, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by HoldingsParent; provided, that until such notice is received, HoldingsParent, Merger Sub and the Surviving Entity Corporation shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a7.01(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests).
Appears in 1 contract
Member Representative. (a) By approving this Agreement The Company (and pursuant to the transactions contemplated hereby or by executing and delivering a Letter terms of Transmittalthe Company Member Consent, each Target of the Company Member shall have Members) irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ as appoints the initial Member Representative. The Member Representative will to act as such Person’s representative representative, agent, proxy and attorney-in-fact to act on behalf of such Person with respect to this Agreement and to take any and for the Company Members for all actions and make any decisions required or permitted to be taken by Member Representative pursuant to purposes under this Agreement, including the exercise of Merger and otherwise in connection with the Contemplated Transactions, including, without limitation, the full power and authority on each such Company Member’s behalf to:
: (i) give and receive notices and communications;
or service of process, (ii) agree to, negotiate, enter into settlements determine, compromise, settle and compromises of, and comply with orders or otherwise handle take any other matters described in Section 2.15;
action permitted or called for by any Company Member under this Agreement, (iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary any termination, amendment or desirable waiver to carry out the intent of this Agreement in connection therewith, (iv) engage such counsel, experts and other agents and consultants as the Member Representative deems necessary in connection with exercising the powers granted hereunder and, in the absence of bad faith on the part of the Member Representative, will be entitled to conclusively rely on the opinions and advice of such Persons, (v) receive funds and make or release payments of funds to pay any Ancillary Document;
amounts that the Member Representative has incurred or reasonably expects to incur in connection with the Company Members’ obligations under this Agreement, the Merger and otherwise in connection with the Contemplated Transactions, including amounts required to pay the fees and expenses of professionals incurred in connection with the Contemplated Transactions, (vi) make all elections or decisions contemplated by this Agreement to execute closing statements, settlement statements and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment funds flow statements on behalf of the foregoingCompany Members and the Company. Holdings shall The Company Members acknowledge that Parent and Merger Sub will be entitled to deal exclusively with conclusively rely upon, without independent investigation, any act, notice, instruction or communication of the Member Representative on all matters relating to as provided in this Agreement (including Article VIII) Section 10.1 as the acts of the Company Members and shall will not be entitled to rely conclusively (without further evidence liable in any manner whatsoever for any of any kind whatsoever) on any document Parent or Merger Sub’s actions, as applicable, taken or not taken in reliance upon the acts or omissions or communications or writings given or executed or purported to be executed on behalf of any Target Company Member by the Member Representative.
(b) The Company Members agree that such agency and proxy are coupled with an interest, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each are therefore irrevocable without the consent of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to will survive the defensedeath, payment incapacity, bankruptcy, dissolution or settlement liquidation of any claims for indemnification hereunderCompany Member. All decisions and actions by the Member Representative will be binding upon the Company Members, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target no Company Member shall will have the right to object toobject, dissent fromdissent, protest or otherwise contest the same. The Member Representative will have no duties or obligations hereunder except those specifically set forth herein and such duties and obligations will be determined solely by the express provisions of this SectionAgreement. The Company Members will jointly and severally indemnify and hold harmless the Member Representative against all liabilities incurred by the Member Representative in connection with the performance of his, including her or its duties as the power Member Representative, including, without limitation, any action, suit or proceeding to which the Member Representative is made a party by reason of attorney granted herebythe fact that the Member Representative is or was acting as the Member Representative under this Agreement. Neither the Member Representative nor any agent employed by the Member Representative will incur any Liability to any Company Member relating to the performance of Member Representative’s duties hereunder except for actions or omissions constituting fraud or bad faith. The Member Representative will have no Liability in respect of any action, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated claim or proceeding brought against the Member Representative by any act Company Member if the Member Representative took or omitted taking any action in good faith.
(c) The provisions of this Section 10.1 will be binding on the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Company Member, and any one references in this Agreement to a Company Member means and includes the successors to such Person’s rights hereunder, whether pursuant to a testamentary disposition, the Legal Requirements of descent and distribution or Target otherwise.
(d) If the Member Representative shall die, become disabled or otherwise be unable or unwilling to fulfill his, her or its responsibilities as agent of the Company Members, or by operation then a majority in interest of Law, whether by death or other event.
the Company Members (bbased on their ownership of membership interests in the Company immediately prior to the Effective Time) shall appoint a successor agent for the Company Members. The Person serving as the Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative may be removed for any reason or no reason replaced from time to time by the vote or written consent holders of a majority in interest of the Target Company Members according (based on their ownership of the membership interests in the Company immediately prior to each Target Company Member’s Pro Rata Share (the Effective Time). In either case, the successor Member Representative shall promptly notify Parent of the identity of such successor Member Representative. Any such successor shall become the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative” for purposes of this Agreement and the Escrow Agreement.
(iiie) In All expenses incurred by the event Member Representative in connection with the performance of the deathhis, incapacity, resignation her or removal of Member Representative, a new its duties as Member Representative shall be appointed borne and paid exclusively by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests).
Appears in 1 contract
Member Representative. (a) By approving this Agreement Each of the Members hereby consents to, approves and agrees to be personally bound by: (a) the transactions contemplated hereby or by executing and delivering a Letter appointment of Transmittal, each Target Company Member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ as the initial representative of the Members (together with any other person or persons who may be appointed, in accordance with this Section 10.10, to serve in such representative capacity, the “Member Representative. The Member Representative will act ”) for purposes of this Agreement and the Indemnification Escrow Agreement and as such Person’s representative and the attorney-in-fact to act and agent for and on behalf of such Person with respect to the Members (including their successors and assigns) under this Agreement and to take the Indemnification Escrow Agreement; and (b) the taking by the Member Representative of any and all actions and make the making of any decisions required or permitted to be taken by the Member Representative pursuant to under this Agreement or the Indemnification Escrow Agreement, including including, without limitation, the exercise of the power to:
: (i) give and receive notices and communications;
; (ii) agree to, negotiate, enter into settlements and compromises of, commence or defend litigation and comply with orders or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims for indemnification made by Holdings pursuant the Buyer Indemnified Parties; (iii) waive any right of any or all of the Members following the Closing with respect to Article VI matters set forth in this Agreement or the Indemnification Escrow Agreement or any other agreement contemplated hereby or thereby; and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of the Member Representative for the accomplishment of any of the foregoing. Holdings Such agency may be changed by the holders of a majority in interest of the Members (based on the Interests owned by each such Member immediately prior to the Closing) from time to time upon not fewer than fifteen (15) days’ prior written notice to the Buyer. No bond shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence required of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by the Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from the Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by .
(b) The Member Representative shall not be liable for any act done or omitted under this Agreement or the Indemnification Escrow Agreement as Member Representative while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Members shall severally indemnify the Member Representative and hold him harmless against any loss, liability or expense incurred or arising out of or in connection with the acceptance or administration of his duties hereunder, including without limitation legal costs and expenses incurred in connection with his duties under this Agreement or the Indemnification Escrow Agreement, absent any agreement between gross negligence, willful misconduct or bad faith on the part of the Member Representative.
(c) A decision, act, consent or instruction of the Member Representative and Holdings relating to within the defense, payment or settlement authority of any claims for indemnification hereunder, the Member Representative as set forth in Section 10.10(a) shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have Member, and the right to object toBuyer Indemnified Parties may rely upon any decision, dissent fromact, protest consent or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest instruction of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) abovebeing the decision, act, consent or instruction of each and every such Member.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests).
Appears in 1 contract
Sources: Asset Purchase Agreement (Schnitzer Steel Industries Inc)
Member Representative. (a) By approving the execution and delivery of this Agreement and the transactions contemplated hereby or Agreement, including by executing and delivering a Letter way of Transmittalmutually executed counterparts hereof, each Target Company Member shall have hereby irrevocably authorized constitutes and appointed Mappoints ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇. as the initial Member Representative. The Member Representative will act as such Person’s representative true and lawful agent and attorney-in-fact (the “Member Representative”) of such Member with full powers of substitution to act in the name, place and stead of such Member with respect to the performance on behalf of such Person with respect to this Agreement Member under the terms and provisions hereof and to take any do or refrain from doing all such further acts and things, and to execute all actions and make any decisions required or permitted to be taken by such documents, as the Member Representative pursuant shall deem necessary or appropriate in connection with any Transaction, but such appointment shall be limited to this Agreement, including the exercise of the power to:
(i) give and receive notices and communicationsact for each Member with respect to all Purchase Price adjustments referred to herein;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders amend or otherwise handle waive any other matters described provision hereof (including any condition to Closing) in Section 2.15any manner that does not differentiate among the Members;
(iii) agree toemploy, negotiateobtain and rely upon the advice of legal counsel, enter into settlements accountants and compromises ofother professional advisors as the Member Representative, and comply with orders in the sole discretion thereof, deems necessary or advisable in the performance of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIIIthe duties of the Member Representative;
(iv) litigateincur any expenses, arbitrateliquidate and withhold assets received on behalf of the Members prior to their distribution to the Members to the extent of any amount that the Member Representative deems necessary for payment of or as a reserve against expenses, resolve, settle and pay such expenses or compromise any claim deposit the same in an interest-bearing account established solely for indemnification pursuant to Article VI and Article VIIIsuch purpose;
(vb) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment The appointment of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and deemed coupled with an interest and shall not be terminated by irrevocable, and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Member Representative as the act of any one Member in all matters referred to herein. Each Member hereby ratifies and confirms that the Member Representative shall do or Target Company Memberscause to be done by virtue of such Member Representative’s appointment as Member Representative of such Member. The Member Representative shall act for each Member on all matters set forth herein in the manner the Member Representative believes to be in the best interest of such Member, but the Member Representative shall not be responsible to any Member for any loss or damage any Member may suffer by operation reason of Lawthe performance by the Member Representative of such Member Representative’s duties hereunder, whether by death other than loss or other eventdamage arising from willful misconduct or gross negligence in the performance of such Member Representative’s duties hereunder.
(bc) The Each Member hereby expressly acknowledges and agrees that the Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according is authorized to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice act on behalf of such vote Member notwithstanding any dispute or a copy of disagreement among the written consent appointing such new Member Representative shall be sent to HoldingsMembers, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, and that until such notice is received, Holdings, Merger Sub and the Surviving Entity any Person shall be entitled to rely on the decisions any and actions of the prior Member Representative as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If all action taken by the Member Representative has a personal conflict of interest with respect hereunder without Liability to, or obligation to inquire of, any action, decision or determination to be made by Member. In the Member Representative, event the Member Representative must notify resigns or ceases to function in such capacity for any reason whatsoever, then the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by successor Member Representative shall be conclusive evidence of good faith)the Person the Members unanimously approve and appoint. The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests).* * * * * 66
Appears in 1 contract
Member Representative. (a) By approving Upon the terms and subject to the conditions set forth in this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of TransmittalSeller Cooperation Agreement, each Target Company holder of Membership Interests hereby irrevocably constitutes and appoints Member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ Representative as the initial Member Representative. The Member Representative will act as such Person’s representative true and lawful agent and attorney-in-fact of such holder with full power and authority to act in such holder’s name and on such holder’s behalf to do any and all things and execute any and all documents that Member Representative determines may be necessary, convenient or appropriate to perform the duties or exercise the rights granted to Member Representative hereunder.
(b) Each holder of Membership Interests acknowledges that Member Representative shall have the authority, for and on behalf of such Person with respect holders, subject to the Seller Cooperation Agreement, to take such actions and exercise such discretion as are required to perform the duties or exercise the rights granted to Member Representative hereunder or under the Adjustment Escrow Agreement and the Indemnity Escrow Agreement, and any such actions shall be binding on each such holder and shall include the following: (i) to give and accept communications and notices on behalf of such holder, (ii) to determine each Seller’s share of the Closing Date Amount pursuant to the terms and subject to the conditions set forth in the Seller Cooperation Agreement and notify Purchaser thereof, (iii) after Closing, to receive payments on behalf of such Seller due and owing pursuant to this Agreement and acknowledge receipt thereof, (iv) after Closing, to take any distribute such payments among such Sellers pursuant to the terms and all actions subject to the conditions set forth in the Seller Cooperation Agreement, (v) to execute the documents and make any decisions certificates required or permitted to be taken by of Member Representative pursuant to this Agreement, including (vi) to instruct the exercise Adjustment Escrow Agent and the Indemnity Escrow Agent to pay amounts due Sellers or Purchaser pursuant to Section 1.04(d) and Section 9.08, respectively, (vii) to amend, supplement, change or waive any provision hereof, subject to compliance with Sections 8.03 and 8.04 and the Seller Cooperation Agreement, (viii) after Closing, to (A) dispute or refrain from disputing, on behalf of the power to:
each Seller relative to any amounts to be received by such Seller under this Agreement or any related document or instrument, any claim made by Purchaser under this Agreement or any related document or instrument, (iB) give negotiate and receive notices and communications;
(ii) agree tocompromise, negotiateon behalf of such Seller, enter into settlements and compromises ofany dispute that may arise under, and comply with orders exercise or otherwise handle refrain from exercising any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises ofremedies available under this Agreement or any related document or instrument, and comply with orders (C) execute, on behalf of courts such Seller, any settlement agreement, release or other document with respect to claims for indemnification made by Holdings pursuant such dispute or remedy relating to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and or the Seller Cooperation Agreement, (ix) to engage attorneys, accountants, agents or consultants on behalf of Sellers in connection with any Ancillary Document;
(vi) make all elections or decisions contemplated by claims under this Agreement or any related document or instrument; and (x) after Closing, to take any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment discretion of Member Representative for the accomplishment Representative, acting in good faith, to accomplish any of the foregoing. Holdings In respect of the duties imposed on and rights granted to Member Representative under or relating to this Agreement, Member Representative shall, subject to the Seller Cooperation Agreement, act as agent for each such holder and shall have authority to bind each such holder in respect of such matters in accordance with the terms of this Agreement, the Escrow Agreement and the Indemnity Escrow Agreement, and Purchaser may rely on such appointment and authority.
(c) Member Representative may use the Member Representative Amount to pay any fees, costs or expenses reasonably incurred in the performance of such Member Representative’s duties hereunder and, to the extent such fees, costs and expenses, together with any amounts recovered from the Member Representative Amount pursuant to Section 6.11(e), exceed the Member Representative Amount, shall be entitled to deal exclusively with reimbursement of such excess from the Sellers pursuant to the terms of the Seller Cooperation Agreement.
(d) Subject to the Seller Cooperation Agreement, Member Representative shall allocate any amount payable to Sellers under this Agreement in the manner distributions would have been allocated among Sellers in their capacity as members of the Company pursuant to the terms and subject to the conditions of the Company LLC Agreement.
(e) Member Representative shall not be liable for any act to the extent done or omitted to be taken as Member Representative in its capacity as Member Representative except as expressly set forth herein or in the Seller Cooperation Agreement. Each Seller indemnifies and holds harmless Member Representative and its partners, members, affiliates, managers, directors, officers, fiduciaries, employees, agents and other Representatives (each, a “Representative’s Indemnified Person”) from and against all losses, liabilities, claims or expenses incurred or suffered by any Representative’s Indemnified Person as a result of, or arising out of, or relating to any and all actions taken or omitted to be taken by Member Representative in its capacity as Member Representative under this Agreement, the Adjustment Escrow Agreement, the Indemnity Escrow Agreement or the Seller Cooperation Agreement or in connection with the incurrence, payment, discharge or settlement of any of the obligations of such Representative’s Indemnified Persons, except to the extent any such losses, liabilities, claims or expenses that arise on all matters account of the gross negligence, willful misconduct or material breach hereof in its capacity as Member Representative or of the Adjustment Escrow Agreement, the Indemnity Escrow Agreement or the Seller Cooperation Agreement by a Representative’s Indemnified Person as determined by a court of competent jurisdiction in a final adjudication. Any losses, liabilities, claims or expenses for which any Representative’s Indemnified Person is entitled to indemnification pursuant to this Section 6.11(e), if not paid directly to such Representative’s Indemnified Person, may be recovered from the Member Representative Amount; provided that, while this Section 6.11(e) allows the Member Representative to be paid from the Membership Representative Amount, this Section 6.11(e) does not relieve the Sellers from their obligation, to the extent not paid from the Member Representative Amount, to promptly pay such losses, liabilities, claims and expenses as they are suffered or incurred, nor does it prevent the Member Representative from seeking any remedy available to it at law or otherwise; provided, further, that to the extent such losses, liabilities, claims or expenses, together with amounts used by the Member Representative pursuant to Section 6.11(c), exceed the Member Representative Amount, the Member Representative shall be entitled to seek such excess from the Sellers pursuant to the terms and conditions of the Seller Cooperation Agreement.
(f) No Representative’s Indemnified Person shall be liable to any Seller in respect of such arrangements or actions or omissions in connection therewith, except to the extent that such acts or omissions constitute gross negligence or willful misconduct.
(g) A decision, act, consent or instruction of Member Representative in respect of a duty imposed on or right granted to Member Representative under or relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action for all holders of all Target Company Members Membership Interests in respect of such matter, and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object toholder, dissent fromand Purchaser may rely upon any such decision, protest act, consent or otherwise contest the same. The provisions instruction of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The such Member Representative may be removedas being the decision, etcact, consent or instruction of each such holder. as provided in this Section 10.1(b).
(i) The Member Representative may resign at Purchaser is hereby relieved from any time.
(ii) The Member Representative may be removed liability to any holder of Membership Interests for any reason acts done by them in accordance with such decision, act, consent or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal instruction of Member Representative.
(iiih) In the event of the death, incapacity, resignation or removal of If LG ECSF L.P. becomes unable to serve as Member Representative, a new Member Representative shall such other person or persons may be appointed designated by the vote or written consent holders of a majority of the Majority Holders.
(iv) Notice of Membership Interests, and such vote person or a copy of the written consent appointing such new Member Representative persons shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative succeed as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (On Assignment Inc)
Member Representative. (a) By approving this Agreement and In order to efficiently administer (i) the waiver of any condition to the obligations of the Members to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Members may be required to indemnify Buyer pursuant to Section 8 hereof, the Members hereby or by executing and delivering a Letter of Transmittal, each Target Company Member shall have irrevocably authorized and appointed M▇designate ▇▇▇▇ ▇▇▇▇▇▇ as their representative (the initial "Member Representative. ").
(b) The Members hereby authorize the Member Representative will act as such Person’s representative (i) to take all action necessary in connection with the waiver of any condition to the obligations of the Members to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims for which the Members may be required to indemnify Buyer pursuant to Section 8 hereof, (ii) to give and attorney-in-fact receive all notices required to act on behalf of such Person with respect to be given under this Agreement and under any Related Agreements (as defined below), and (iii) to take any and all additional actions and make any decisions required or permitted as is contemplated to be taken by Member Representative pursuant to this Agreement, including the exercise or on behalf of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made Members by Holdings pursuant to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent terms of this Agreement and any Ancillary Document;
(vi) make Related Agreement. In the event that the Member Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, Members holding, prior to the Closing, a majority of the Interests as set forth on Schedule 1 attached hereto shall select another representative to fill such ---------- vacancy and such substituted representative shall be deemed to be the Member Representative for all elections or decisions contemplated by purposes of this Agreement and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants Related Agreement. All decisions and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in by the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representativeincluding, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of without limitation, the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment defense or settlement of any claims for indemnification hereunderwhich the Members may be required to indemnify the Buyer pursuant to Section 8 hereof, shall constitute a decision or action be binding upon all of all Target Company Members the Members, and shall be final, binding and conclusive upon each such Person. No Target Company no Member shall have the right to object toobject, dissent fromdissent, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) above.
(c) The Member Representative By their execution of this Agreement, the Members agree that:
(i) the Buyer shall act as a fiduciary with fiduciary duties be able to rely conclusively on the Target Company Members. If instructions and decisions of the Member Representative has a personal conflict as to settlement of interest with respect any claims for indemnification by the Buyer pursuant to Section 8 hereof or any action, decision or determination other actions required to be made taken by the Member RepresentativeRepresentative hereunder, and no party hereunder shall have any cause of action against Buyer for any action taken by Buyer in reliance upon the instructions or decisions of the Member Representative must notify the Target Company Members.Representative;
(dii) The Member Representative shall not be liable to all actions, decisions and instructions of the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence and binding upon all of good faith). The Target Company the Members and no Member shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless have any cause of action against the Member Representative from and againstfor any action taken, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as decision made or instruction given by the Member Representative under this Agreement, except for fraud or willful breach of this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative;
(d) All fees and expenses, if any, incurred by the Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied paid by the Target Company Members, severally and not jointly (Members in accordance with proportion to their Pro Rata Interests).ownership of Interests as set forth on Schedule 1 attached hereto. ----------
Appears in 1 contract
Sources: Purchase Agreement (Navisite Inc)
Member Representative. (a) By approving this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Target Company Member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ is hereby appointed to act as a representative of the initial Members (the “Member Representative”). The Member Representative will act as such Person’s representative shall have the authority, for and attorney-in-fact to act on behalf of such Person with respect to this Agreement and the Members, to take any and all such actions and make any decisions exercise such discretion as are required or permitted to be taken by of the Member Representative pursuant to the terms of this AgreementAgreement and any related document or instrument, and any such actions shall be binding on each Member including the exercise of the power tofollowing:
(i) give to receive, hold and receive notices and communicationsdeliver to Investor any document required to be delivered to Investor hereunder on behalf of any Member;
(ii) to give and receive communications and notices on behalf of the Members after the Closing Date;
(iii) to defend against, negotiate, agree to, negotiate, enter into settlements and compromises of, and comply with orders and awards of courts or otherwise handle any other matters described in Section 2.15arbitration panels with respect to Third-Party Claims against the Members;
(iiiiv) to negotiate, agree to, negotiate, enter into settlements and compromises of, and comply with orders and awards of courts or arbitration panels with respect to any claims for indemnification made by Holdings pursuant or disputes related to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIIIthis Agreement;
(v) execute to receive payments on behalf of the Members due and deliver all documents necessary or desirable owing pursuant to carry out the intent of this Agreement and any Ancillary Documentacknowledge receipt thereof;
(vi) make all elections to amend, supplement or decisions contemplated by change this Agreement and Agreement, or waive any Ancillary Documentprovision hereof, following the Closing Date;
(vii) engage, employ to receive service of process on behalf of the Members in connection with any claims under this Agreement or appoint any agents related document or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligationsinstrument; and
(viii) to take all actions necessary or appropriate in the good faith judgment of the Member Representative for the accomplishment to accomplish any of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement .
(including Article VIIIb) and shall be entitled to rely conclusively (without further evidence A decision, act, consent or instruction of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from the Member Representative shall constitute notice to or from each a decision for all of the Target Company Members. Any decision or action by Member Representative Members hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have Member, and Investor may rely upon any such decision, act, consent or instruction of the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removedas being the decision, etcact, consent or instruction of such Member. as provided in this Section 10.1(b).
(i) The Member Representative may resign at Investor and its Affiliates are hereby relieved from any time.
(ii) The Member Representative may be removed debt, liability or obligation to any Person for any reason acts done by them in accordance with such decision, act, consent or no reason by the vote or written consent of a majority in interest instruction of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iiic) In the event of the death, incapacitydisability, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent inability to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative serve as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has for any reason, the Members (by action of Members holding a personal conflict majority of interest with respect the outstanding Series A Common Units of the Company) shall have full power and authority to any actionappoint a replacement or successor representative for the Members who shall, decision or determination from and after the effective date of such appointment, be authorized and empowered to be made by the Member Representative, act as the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to all purposes under this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests).
Appears in 1 contract
Sources: Contribution Agreement
Member Representative. (a) By approving voting in favor of the adoption of this Agreement Agreement, the approval of the principal terms of the Mergers, and the transactions contemplated hereby consummation of the Mergers or by executing participating in the Mergers and delivering a Letter of Transmittalreceiving the benefits thereof, including the right to receive the consideration payable in connection with the Mergers, each Target Company Member shall be deemed to have irrevocably authorized approved the designation of, and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ hereby designates, the Member Representative as the initial Member Representative. The Member Representative will act as such Person’s representative representative, agent and attorney-in-fact to act for and on behalf of such Person with respect to the Members and each Member (i) agrees that all actions taken by the Member Representative under this Agreement or any Ancillary Agreement shall be binding upon such Member and its successors as if expressly confirmed and ratified in writing by such Member, and (ii) waives any and all defenses which may be available to contest, negate or disaffirm the action of the Member Representative taken in good faith under this Agreement or the Ancillary Agreements. The Member Representative shall take or refrain from taking any and all actions that they believe are necessary under this Agreement for and make any decisions required or permitted to be on behalf of the Members, as fully as each such Member were acting on its own behalf. All actions taken by the Member Representative pursuant under this Agreement shall be binding upon each Member and its successors as if expressly confirmed and ratified in writing by each of them and all defenses which may be available to this Agreementany Member to contest, including negate or disaffirm the exercise action of the power to:Member Representative taken in good faith under this Agreement or any other Ancillary Agreement are waived.
(ib) give If the Member Representative shall resign or otherwise be unable to fulfill their responsibilities as representative of the Members, the Members shall, within ten (10) days after the occurrence of such event, appoint a successor representative and, promptly thereafter, shall notify Buyer of the identity of such successor. Any such successor shall become the “Member Representative” for purposes of this Agreement and receive notices and communications;the other Ancillary Agreements. If for any reason there is no Member Representative at any time, all references herein or in any other Ancillary Agreement to the Member Representative shall be deemed to refer to each Member.
(iic) agree to, negotiate, enter into settlements The immunities and compromises of, rights to indemnification of the Member Representative shall survive the resignation or removal of the Member Representative and comply with orders the Closing or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent termination of this Agreement and any other Ancillary Document;Agreement. The powers, immunities and rights to indemnification granted to the Member Representative hereunder are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Member and shall be binding on any successor thereto.
(vid) make all elections Except in cases of fraud, intentional misconduct or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engagegross negligence, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist the Member Representative will have no Liability to any Buyer Party, any Company Party or their respective successors or assigns with respect to actions taken or omitted to be taken in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of in their capacity as the Member Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to indemnification and reimbursement from the Members against any loss, liability, fees or expenses arising out of actions taken or omitted to be taken in good faith in their capacity as the Member Representative.
(e) Parent and Buyer shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on upon any document executed or purported to be executed on behalf of any Target Company other paper delivered by the Member Representative as being authorized by Member Representativeeach Member, and on neither Parent nor Buyer shall be liable to the Member Representative or any other Member for any action taken or purported omitted to be taken by Parent or Buyer based on behalf of any Target Company Member such reliance. All decisions and actions by the Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between the Member Representative and Holdings Buyer relating to the defense, payment defense or settlement of any claims for indemnification hereunderwhich any Member may be required to indemnify the Buyer Indemnitees pursuant to Section 10, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member, and no Member shall have the right to object toobject, dissent fromdissent, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests).
Appears in 1 contract
Member Representative. (a) By approving this Agreement A. If the Members approve the Ohio Merger and the transactions contemplated hereby or Acquisition Merger is consummated then, effective upon such consummation and without any further act of any Members, a Person to be named by executing the Company and delivering a Letter of Transmittal, each Target Company Member reasonably acceptable to the Parent shall have irrevocably authorized and be appointed M▇▇▇▇▇ ▇▇▇▇▇▇ as the initial Member Representative. The Member Representative will act as such Person’s representative Members' representative, agent and attorney-in-fact to act take all actions on behalf of such Person the Members as indemnifying parties under this Article 9, including giving and receiving notices and communications; defending Legal Actions; objecting to, negotiating and entering into settlements of and compromises with respect to this Agreement notices asserting rights to indemnification from the Parent Indemnified Parties; and authorizing delivery to take the Parent Indemnified Parties of any and all actions and make any decisions required or permitted to be taken by Member Representative amounts due pursuant to this AgreementArticle 9 (the "Members' Representative").
B. Until the Section 9.2 Date (or, including if there is on the exercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle Section 9.2 Date any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any unresolved claim for indemnification pursuant to Article VI Section 9.2, such later date as all such unresolved claims are settled), the Members who are entitled to receive 50% or more of the Section 9.6 Amounts may, from time to time upon written notice to the Members' Representative and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out Parent, remove the intent of this Agreement and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ Members' Representative or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Members' Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member the Members' Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice . Upon receipt of such vote or a copy of notice, the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to Parent may rely on the decisions and actions of the prior Member such new Members' Representative as described in Section 10.1(a) abovewithout further inquiry.
C. If the Members approve the Ohio Merger and the Acquisition Merger is consummated then, effective upon such consummation and without any further act of any Member, each Member shall be deemed to have agreed that (ci) The Member the authority of the Members' Representative under this Section 9.7 shall include the right to hire or retain such counsel, investment bankers, accountants, representatives and other professional advisors as the Members' Representative determines in the Members' Representative's sole discretion to be necessary, appropriate or advisable, (ii) no bond shall be required of the Members' Representative and the Members' Representative shall act as a fiduciary with fiduciary duties to receive no compensation for service in such capacity and (iii) the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(d) The Member ' Representative shall not be liable to the Target Company Members any Member for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant as Members' Representative while acting in good faith and in the exercise of reasonable judgment. Nothing in this Section 9.7(C) or elsewhere in this Agreement shall be deemed to impose any indemnification or other similar obligation to the advice Members' Representative in its capacity as Members' Representative on any of counselthe Company, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests)the Parent, indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered Merger Subsidiary or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests)Surviving Corporation.
Appears in 1 contract
Sources: Agreement and Plan of Merger (United Natural Foods Inc)
Member Representative. (a) By approving this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittalhereby, each Target Company Member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ as the initial Member Representative. The Member Representative will act as such Person’s representative and attorney-in-fact to act on behalf of such Person with respect to this Agreement and to take any and all actions and make any decisions required or permitted to be taken by Member Representative pursuant to this Agreement, including the exercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.152.10;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings Parent pursuant to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings Parent shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings Parent relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company MembersMember, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative , and may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share Interests (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) . In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) . Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to HoldingsParent, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by HoldingsParent; provided, that until such notice is received, HoldingsParent, Merger Sub and the Surviving Entity Company shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a12.01(a) above.above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by from the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests).
Appears in 1 contract
Member Representative. The Company and each Contribution Consideration Recipient (aand with respect to each Phantom Equity Holder, as agreed in an ancillary agreement hereto) By approving this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Target Company Member shall have irrevocably authorized and appointed Magree that ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall be appointed as the initial Member Representative. The Member Representative will act , as such Person’s representative and the attorney-in-fact to act for and on behalf of such Person with respect to this Agreement each of them, and to take the taking by the Member Representative of any and all actions and make the making of any decisions required or permitted to be taken by Member Representative pursuant him under this Agreement or any ancillary agreement hereto to this Agreementwhich the Company and/or any Contribution Consideration Recipient is a party, including the exercise of the power to:
to (i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, of and comply with orders of courts with respect to claims for any indemnification made by Holdings pursuant to Article VI claims, (ii) resolve any indemnification claims, and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viiiiii) take all actions necessary or appropriate in the good faith judgment of the Member Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) other terms, conditions and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions limitations of this SectionAgreement. Accordingly, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict authority and power to act on behalf of interest the Company and each Contribution Consideration Recipient (and with respect to each Phantom Equity Holder, as agreed in an ancillary agreement hereto) with respect to this Agreement and the disposition, settlement or other handling of all indemnification claims, rights or obligations arising from and taken pursuant to this Agreement or any actionancillary agreement hereto to which the Company and/ or any Contribution Consideration Recipient is a party. The Company and each Contribution Consideration Recipient (and with respect to each Phantom Equity Holder, decision as agreed in an ancillary agreement hereto) will be bound by all actions taken by the Member Representative in connection with this Agreement or determination any ancillary agreement hereto to which such Party is a party and Parent shall only be made required to acknowledge or act upon written communication signed by the Member Representative. Notwithstanding anything to the contrary contained herein, the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been no liability to any Party in excess of the Member Representative’s portion of the Escrowed Indemnification Stock for any action taken or omitted to be taken hereunder, unless such liability is determined by a judgment or a court of competent jurisdiction to have constituted resulted from the gross negligence or involved fraud, intentional willful misconduct or bad faith (it being understood that any act done or omitted pursuant to of the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Alternative Asset Management Acquisition Corp.)
Member Representative. (a) By approving this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Target Company Member Unitholder or Warrantholder shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ as the initial Member Representative. The Member Representative will act as such Person’s representative and attorney-in-fact to act on behalf of such Person with respect to this Agreement and to take any and all actions and make any decisions required or permitted to be taken by Member Representative pursuant to this AgreementAgreement and the Ancillary Documents, including the exercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15ARTICLE II and ARTICLE VII;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(viiv) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(viiv) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viiivi) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings Parent shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member Unitholder or Warrantholder by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member Unitholder or Warrantholder by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company MembersUnitholders and Warrantholders. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, hereunder shall constitute a decision or action of all Target Company Members Unitholders and Warrantholders and shall be final, binding and conclusive upon each such Person. No Target Company Member Unitholder or Warrantholder shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company MembersUnitholders or Warrantholders, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative , and may be removed for any reason or no reason by the vote or written consent of the holders of a majority in interest of the Target Company Members according Class B Units eligible to each Target Company Member’s Pro Rata Share vote as of the date of this Agreement (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) . In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) . Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to HoldingsParent, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by HoldingsParent; provided, that until such notice is received, HoldingsParent, Merger Sub and the Surviving Entity Company shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a9.01(a) above. In the event of the death, incapacity, resignation or removal of Member Representative, the former Member Representative (or such Member Representative’s estate or Representative) shall transfer the remaining balance of the Member Representative Expense Fund to the new Member Representative.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members Unitholders or Warrantholders for actions taken pursuant to this AgreementAgreement or any Ancillary Document, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members Unitholders and Warrantholders shall severally and not jointly (in accordance with their Pro Rata InterestsShare), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement and the Ancillary Documents (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members Unitholders and Warrantholders the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by satisfied: (i) from the Target Company MembersMember Representative Expense Fund; and (ii) to the extent the amount of the Representative Losses exceeds amounts available to Member Representative under (i), from the Unitholders and Warrantholders, severally and not jointly (in accordance with their Pro Rata InterestsShare). As soon as practicable after the date on which the final obligation of Member Representative under this Agreement and the Ancillary Documents have been discharged or such other date as Member Representative deems appropriate, the Member Representative shall pay any amounts remaining in the Member Representative Expense Fund to the Unitholders and Warrantholders in accordance with their Pro Rata Share.
Appears in 1 contract
Member Representative. (a) By approving this Agreement and 6.12.1 The parties have agreed that it is desirable to designate the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Target Company Member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ as the initial Member Representative. The Member Representative will act as such Person’s representative and attorney-in-fact to act on behalf of such Person with respect to this Agreement and to take any and all actions and make any decisions required or permitted to be taken by Member Representative pursuant to this Agreement, including the exercise each of the power to:
(i) give and receive notices and communications;
(ii) agree toManagement Holder, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment extent of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to set forth in this Agreement (including Article VIII) the full power and shall be entitled authority on such Management Holder’s behalf to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed execute and deliver on behalf of such Management Holder any Target Company Member by Member Representative, amendment or waiver hereto; and on to do each and every act and exercise any other action taken and all rights which such Management Holders collectively are permitted or purported required to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Persondo or exercise under this Agreement). Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The time by written notice to the Board, and the Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or not be removed without its prior written consent. In the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon event of the resignation or removal of the Member Representative.
(iii) In , a successor to such position shall be a Management Holder designated by the event Board and reasonably satisfactory to the Management Holders holding a majority of the Common Units held by the Management Holders. The Member Representative shall have such powers and authority as are necessary or appropriate to carry out the functions assigned to it under this Agreement and in any other document delivered in connection herewith. The designation of the Member Representative is coupled with an interest, and, except as set forth in the immediately preceding sentence, such designation is irrevocable and shall not be affected by the death, incapacity, resignation illness, bankruptcy, dissolution or removal other inability to act of Member Representative, a new Member Representative shall be appointed by the vote or written consent any of the Majority Management Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity 6.12.2 The Board shall be entitled to rely on the decisions and actions taken by the Member Representative without independent inquiry into the capacity of the prior Member Representative to so act and shall have no liability to the Management Holders in connection therewith. All actions, notices, communications and determinations by the Member Representative to carry out such functions shall conclusively be deemed to have been authorized by, and shall be binding upon, the Management Holders. Neither the Member Representative nor any of its agents or representatives shall have any liability to the Management Holders with respect to actions taken or omitted to be taken by the Member Representative in such capacity (or any of its officers, directors, employees, agents or representatives in connection therewith), except with respect to the Member Representative’s gross negligence or willful misconduct. Neither the Member Representative nor any of its agents or representatives shall have any liability to the Company or the Board as described a result of serving in Section 10.1(a) above.
(c) such capacity or otherwise under this Agreement. The Member Representative shall act as a fiduciary with fiduciary duties will at all times be entitled to rely on any directions received from the Target Company Members. If Management Holders; provided, however, that the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable required to the Target Company Members for actions taken pursuant follow any such direction, and shall be under no Doc#: US1:15482657v3 obligation to this Agreement, except to the extent take any action in its capacity as Member Representative based upon any such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by direction. The Member Representative shall be conclusive evidence entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of good faith)bad faith on the part of the Member Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons. The Target Company Members Member Representative (for itself and its officers, directors, employees, agents and representatives) shall severally be entitled to full reimbursement for all reasonable expenses, disbursements and not jointly advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Member Representative in accordance with their Pro Rata Interestssuch capacity (or any of its agents or representatives in connection therewith), indemnify and hold harmless Member Representative from and againstto full indemnification against any loss, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, liability or expenses arising out of and actions taken or omitted to be taken in connection with its activities capacity as the Member Representative under this Agreement (except for those arising out of the “Representative Losses”Member Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims, in each case as such Representative Loss from the Company and/or the Management Holders. The Member Representative’s rights hereunder shall be in addition to, and shall not derogate from any right of indemnification to which he is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss entitled pursuant to Section 6.9 or any portion thereof was primarily caused by other provision. The relationship created herein is not to be construed as a joint venture or any form of partnership between or among the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse or any Management Holder for any purpose of applicable law. Neither the Target Company Members the amount Member Representative nor any of such indemnified Representative Loss attributable its Affiliates owes any fiduciary or other duty to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests)any Management Holder.
Appears in 1 contract
Sources: Limited Liability Company Agreement (American Healthcare REIT, Inc.)
Member Representative. (a) By approving this Agreement and 6.12.1 The parties have agreed that it is desirable to designate the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Target Company Member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ as the initial Member Representative. The Member Representative will act as such Person’s representative and attorney-in-fact to act on behalf of such Person with respect to this Agreement and to take any and all actions and make any decisions required or permitted to be taken by Member Representative pursuant to this Agreement, including the exercise each of the power to:
(i) give and receive notices and communications;
(ii) agree toManagement Holder, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment extent of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to set forth in this Agreement (including Article VIII) the full power and shall be entitled authority on such Management Holder’s behalf to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed execute and deliver on behalf of such Management Holder any Target Company Member by Member Representative, amendment or waiver hereto; and on to do each and every act and exercise any other action taken and all rights which such Management Holders collectively are permitted or purported required to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Persondo or exercise under this Agreement). Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The time by written notice to the Board, and the Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or not be removed without its prior written consent. In the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon event of the resignation or removal of the Member Representative.
(iii) In , a successor to such position shall be a Management Holder designated by the event Board and reasonably satisfactory to the Management Holders holding a majority of the Common Units held by the Management Holders. The Member Representative shall have such powers and authority as are necessary or appropriate to carry out the functions assigned to it under this Agreement and in any other document delivered in connection herewith. The designation of the Member Representative is coupled with an interest, and, except as set forth in the immediately preceding sentence, such designation is irrevocable and shall not be affected by the death, incapacity, resignation illness, bankruptcy, dissolution or removal other inability to act of Member Representative, a new Member Representative shall be appointed by the vote or written consent any of the Majority Management Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity 6.12.2 The Board shall be entitled to rely on the decisions and actions taken by the Member Representative without independent inquiry into the capacity of the prior Member Representative to so act and shall have no liability to the Management Holders in connection therewith. All actions, notices, communications and determinations by the Member Representative to carry out such functions shall conclusively be deemed to have been authorized by, and shall be binding upon, the Management Holders. Neither the Member Representative nor any of its agents or representatives shall have any liability to the Management Holders with respect to actions taken or omitted to be taken by the Member Representative in such capacity (or any of its officers, directors, employees, agents or representatives in connection therewith), except with respect to the Member Representative’s gross negligence or willful misconduct. Neither the Member Representative nor any of its agents or representatives shall have any liability to the Company or the Board as described a result of serving in Section 10.1(a) above.
(c) such capacity or otherwise under this Agreement. The Member Representative shall act as a fiduciary with fiduciary duties will at all times be entitled to rely on any directions received from the Target Company Members. If Management Holders; provided, however, that the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable required to the Target Company Members for actions taken pursuant follow any such direction, and shall be under no obligation to this Agreement, except to the extent take any action in its capacity as Member Representative based upon any such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by direction. The Member Representative shall be conclusive evidence entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of good faith)bad faith on the part of the Member Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons. The Target Company Members Member Representative (for itself and its officers, directors, employees, agents and representatives) shall severally be entitled to full reimbursement for all reasonable expenses, disbursements and not jointly advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Member Representative in accordance with their Pro Rata Interestssuch capacity (or any of its agents or representatives in connection therewith), indemnify and hold harmless Member Representative from and againstto full indemnification against any loss, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, liability or expenses arising out of and actions taken or omitted to be taken in connection with its activities capacity as the Member Representative under this Agreement (except for those arising out of the “Representative Losses”Member Representative’s gross negligence or willful misconduct), including the costs and expenses of investigation and defense of claims, in each case as such Representative Loss from the Company and/or the Management Holders. The Member Representative’s rights hereunder shall be in addition to, and shall not derogate from any right of indemnification to which he is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss entitled pursuant to Section 6.9 or any portion thereof was primarily caused by other provision. The relationship created herein is not to be construed as a joint venture or any form of partnership between or among the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse or any Management Holder for any purpose of applicable law. Neither the Target Company Members the amount Member Representative nor any of such indemnified Representative Loss attributable its Affiliates owes any fiduciary or other duty to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests)any Management Holder.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Griffin-American Healthcare REIT III, Inc.)
Member Representative. (a) By approving the execution and delivery of this Agreement and the transactions contemplated hereby or Agreement, including by executing and delivering a Letter way of Transmittalmutually executed counterparts hereof, each Target Company Member shall have hereby irrevocably authorized constitutes and appointed M▇appoints D▇▇▇▇ ▇▇▇▇▇▇ as the initial Member Representative. The Member Representative will act as such Person’s representative true and lawful agent and attorney-in-fact of such Member with full powers of substitution to act in the name, place and stead of such Member with respect to the performance on behalf of such Member under the terms and provisions hereof and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Member Representative shall deem necessary or appropriate in connection with any Transaction, but such appointment shall be limited to the power to;
(i) amend or waive any provision hereof (including any condition to Closing) in any manner that does not differentiate among the Members;
(ii) employ, obtain and rely upon the advice of legal counsel, accountants and other professional advisors as the Member Representative, in the sole discretion thereof, deems necessary or advisable in the performance of the duties of the Member Representative;
(iii) incur any expenses, liquidate and withhold assets received on behalf of the Members prior to their distribution to the Members to the extent of any amount that the Member Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing account established solely for such purpose;
(b) The appointment of the Member Representative shall be deemed coupled with an interest and shall be irrevocable, and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Member Representative as the act of any Member in all matters referred to herein. Each Member hereby ratifies and confirms that the Member Representative shall do or cause to be done by virtue of such Member Representative’s appointment as Member Representative of such Member. The Member Representative shall act for each Member on all matters set forth herein in the manner the Member Representative believes to be in the best interest of such Member, but the Member Representative shall not be responsible to any Member for any loss or damage any Member may suffer by reason of the performance by the Member Representative of such Member Representative’s duties hereunder, other than loss or damage arising from willful misconduct or gross negligence in the performance of such Member Representative’s duties hereunder.
(c) Each Member hereby expressly acknowledges and agrees that the Member Representative is authorized to act on behalf of such Person with respect to this Agreement and to take Member notwithstanding any and all actions and make any decisions required dispute or permitted to be taken by Member Representative pursuant to this Agreement, including disagreement among the exercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises ofMembers, and comply with orders or otherwise handle that any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity Person shall be entitled to rely on the decisions any and actions of the prior Member Representative as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If all action taken by the Member Representative has a personal conflict of interest with respect hereunder without liability to, or obligation to inquire of, any action, decision or determination to be made by Member. In the Member Representative, event the Member Representative must notify resigns or ceases to function in such capacity for any reason whatsoever, then the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by successor Member Representative shall be conclusive evidence of good faith)the Person the Members unanimously approve and appoint. The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests).[signature page follows]
Appears in 1 contract
Member Representative. (a) By approving this Agreement and Each of the transactions contemplated Indemnifying Parties hereby or by executing and delivering a Letter of Transmittal, each Target Company Member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ as appoints the initial Member Representative. The Member Representative will act as such Person’s representative his, her or its true and lawful agent, proxy and attorney-in-fact fact, to act execute and deliver this Agreement and the Escrow Agreement on their behalf, to consent to the calculations, including the allocation of the Closing Consideration among the Members, provided for in the Closing Consideration Spreadsheet, and to exercise all or any of the powers, authority and discretion conferred on him or her under this Agreement.
(a) The Member Representative shall have and may exercise on behalf of such Person with respect the Indemnifying Parties all of the powers conferred upon him or her pursuant to this Agreement and the Escrow Agreement, which shall include: (i) The power to execute any agreement or instrument in connection with the transactions contemplated hereby for and on behalf of the Indemnifying Parties; (ii) The power and authority to negotiate and resolve with the Indemnified Parties the determination of the components of Closing Cash Consideration; (iii) The power to give or receive any notice or instruction permitted or required under this Agreement or the Escrow Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, to be given or received by any Indemnifying Party, and each of them (other than notice for service of process relating to any Action before a court or other tribunal of competent jurisdiction, which notice must be given to each Indemnifying Party individually, as applicable), and to take any and all actions action for and make any decisions required or permitted to be taken by Member Representative pursuant to on behalf of Indemnifying Parties, and each of them, under this Agreement, including the exercise Escrow Agreement or any other such agreement, document or instrument; (iv) The power (subject to the provisions of Section 8.6(c)) to contest, negotiate, defend, compromise or settle any Indemnification Claims or Actions for which an Indemnified Party may be entitled to indemnification through counsel selected by the Member Representative and solely at the cost, risk and expense of the power to:
(i) give and receive notices and communications;
(ii) Indemnifying Parties, authorize payment to any Indemnified Party of any of the Escrow Fund, or any portion thereof, in satisfaction of any Indemnification Claims, agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims for indemnification made such Indemnification Claims, resolve any Indemnification Claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated hereby by Holdings pursuant to Article VI arbitration, settlement or otherwise, and Article VIII;
(iv) litigate, arbitrate, resolve, settle take or compromise forego any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions permitted or required of any Indemnifying Party or necessary or appropriate in the good faith judgment of the Member Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on foregoing and all matters relating to of the other terms, conditions and limitations of this Agreement and the Escrow Agreement; (including Article VIIIv) The power to consult with legal counsel, independent public accountants and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member other experts selected by Member Representativeit, solely at the cost and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each expense of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).Indemnifying Parties;
(i) The Member Representative may resign at any timehas all necessary power and authority to execute and deliver this Agreement and the Escrow Agreement and to carry out his, her or its obligations hereunder and thereunder.
(ii) The This Agreement has been duly executed and delivered by the Member Representative may be removed for any reason or no reason and, assuming the due authorization, execution and delivery of this Agreement by the vote or written consent of a majority in interest other parties hereto, constitutes the valid and legally binding obligation of the Target Company Members according to each Target Company Member’s Pro Rata Share (Member Representative, enforceable against the “Majority Holders”); provided, however, in no event shall Member Representative resign in accordance with its terms, subject to bankruptcy, insolvency, reorganization or be removed without similar laws of general application affecting the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal rights and remedies of Member Representativecreditors, and to general equity principles.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall The Escrow Agreement will be appointed duly executed and delivered by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has and, assuming the due authorization, execution and delivery of the Escrow Agreement by Parent and the Escrow Agent, constitute a personal conflict legal, valid and binding obligation of interest with respect to any action, decision or determination to be made by the Member Representative, enforceable against the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests)its terms, indemnify subject to bankruptcy, insolvency, reorganization or similar laws of general application affecting the rights and hold harmless Member Representative from remedies of creditors, and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests)general equity principles.
Appears in 1 contract
Sources: Purchase Agreement (eHealth, Inc.)
Member Representative. (a) By approving DRM Member Representative LLC is hereby constituted to act as the agent, proxy, attorney-in-fact and representative for the Members and their successors and assigns for all purposes under this Agreement (the “Member Representative”), and the Member Representative, by its signature below, agrees to serve in such capacity.
(b) The Member Representative shall have the power and authority to take such actions on behalf of each Member as the Member Representative, in its sole judgment, may deem to be in the best interests of the Members or otherwise appropriate on all matters related to or arising from this Agreement or any other Transaction Document. Such powers shall include:
(i) executing and delivering this Agreement, the other Transaction Documents, any certificates, consents and other documents contemplated by this Agreement, and any and all supplements, amendments, waivers or modifications thereto;
(ii) giving and receiving notices and other communications relating to this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby;
(iii) taking or refraining from taking any actions (whether by executing negotiation, settlement, litigation or otherwise) to resolve or settle all matters and delivering a Letter disputes arising out of Transmittal, each Target Company Member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ as the initial Member Representative. The Member Representative will act as such Person’s representative and attorney-in-fact to act on behalf of such Person with respect to this Agreement and to take any and all actions and make any decisions required or permitted to be taken by Member Representative pursuant related to this Agreement, including matters in Article IX, the exercise other Transaction Documents and the performance or enforcement of the power to:
(i) give obligations, duties and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings rights pursuant to Article VI this Agreement and Article VIIIthe other Transaction Documents;
(iv) litigate, arbitrate, resolve, settle taking all actions necessary or compromise appropriate in connection with any claim for indemnification pursuant to Article VI and Article VIIIdisputes regarding the Estimated Schedule or the Final Calculations;
(v) execute engaging attorneys, accountants, financial and deliver all documents other advisors, paying agents and other persons necessary or desirable to carry out appropriate, in the intent sole and absolute discretion of the Member Representative in the performance of its duties under this Agreement and any Ancillary Document;other Transaction Documents; and
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take taking all actions necessary or appropriate in the good faith judgment of the Member Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If power of attorney appointing the Member Representative has a personal conflict as attorney- in-fact is coupled with an interest and the death or incapacity of interest with respect to any action, decision Member shall not terminate or determination to be made by diminish the authority and agency of the Member Representative, the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions any action taken or omitted to be taken by the Member Representative in his capacity as Member Representative pursuant to the terms of this Agreement, except to the extent such actions action or omission shall have been determined by a court of competent jurisdiction in a final non-appealable judgment to have constituted gross negligence or involved fraud, intentional misconduct or bad faith fraud. All fees and expenses, including for attorneys, accountants and financial and other advisors, paying agents and other persons and insurance, in each case necessary or appropriate and engaged by the Member Representative in the performance of his duties under this Agreement shall be paid from the Member Representative Fund, to the extent any funds remain in the Member Representative Fund, and thereafter by the Member Representative, who shall be entitled to recover any such amounts from each Member based on such Member’s Pro Rata Portion (it being understood that but in no event will any act done Member be liable for such amounts in excess of the Pro Rata Portion of the Merger Consideration actually received by the Member).
(e) The Members shall, jointly and severally, indemnify, defend and hold harmless the Member Representative and his heirs, representatives, successors and assigns, from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs and expenses (including attorneys’ fees and court costs) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Member Representative pursuant to the advice terms of counselthis Agreement, accountants except to the extent such action or omission shall have been determined by a court of competent jurisdiction in a final non-appealable judgment to have constituted intentional misconduct or fraud on the part of the Member Representative; provided, that no Member shall be liable to the Member Representative pursuant to this Section 2.9(e) for any amount in excess of the portion of the Merger Consideration to which such Member is entitled pursuant to this Article II. In addition, each Member forever voluntarily releases and other professionals discharges the Member Representative, his heirs, representatives, successors and experts retained assigns, from any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs and expenses (including attorneys’ fees and court costs), whether known or unknown, anticipated or unanticipated, arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Member Representative pursuant to the terms of this Agreement, except to the extent such action or omission shall have been determined by a court of competent jurisdiction in a final non-appealable judgment to have constituted intentional misconduct or fraud. The Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their entitled to recover from each Member based on such Member’s Pro Rata Interests)Portion, indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, expenses (including reasonable attorneys’ fees and disbursementscourt costs) incurred by the Member Representative in defending any claim, demand, suit, action or cause of action.
(f) Each Member agrees that Parent shall be entitled to rely, and shall be fully protected in relying, on any action taken, or any action not taken, by the Member Representative, on behalf of such Member, pursuant to this Section 2.9(f) (an “Authorized Action”), and that each Authorized Action shall be binding on each Member as fully as if such Member had taken such Authorized Action.
(g) Parent shall not be liable to any Member Indemnitee for Losses sustained by any such Member Indemnitee, to the extent arising out of and in connection with its activities as or related to the performance of, or failure to perform by, the Member Representative under of its obligations set forth in this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by other Transaction Documents, as applicable, including with respect to the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative Fund, nor shall reimburse the Target Company Members actions of, or the amount of such indemnified failure to act by, the Member Representative Loss attributable be used as a defense against any claim for Losses made by a Parent Indemnitee pursuant to such gross negligence, fraud, intentional misconduct this Agreement or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests)any other Transaction Documents.
Appears in 1 contract
Sources: Merger Agreement
Member Representative. (a) By approving Each of the Company Interestholders (by virtue of their approval of this Agreement and the transactions contemplated hereby, and their receipt of their pro rata portions of the consideration for the Merger under Article 2 hereof) hereby or by executing and delivering a Letter of Transmittal, each Target Company Member shall have irrevocably authorized and appointed Mappoints Jordan ▇. ▇▇▇▇ ▇▇▇▇▇▇ as the initial Member Representative. The Member Representative will act as such Person’s representative agent and attorney-in-fact to act fact, with full power of substitution, as the "Member Representative" for and on behalf of such Person with respect holders: (i) to give and receive consents, notices and communications, (ii) to object to any payments due and owing by or to such holders under this Agreement Agreement, (iii) to negotiate and to take any and all actions and make any decisions required or permitted to be taken by Member Representative pursuant resolve disputes relating to this Agreement, including the exercise negotiation, resolution and settlement of the power to:
any and all claims for indemnification under and disputes relating to Article 10, (iiv) give and receive notices and communications;
(ii) to agree to, negotiate, enter into settlements negotiate and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts and awards of arbitrators with respect to claims for indemnification made by Holdings pursuant to Article VI this Agreement and Article VIII;
(iv) litigatethe Merger, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) to agree to, negotiate and enter into amendments or waivers of a non-material term or provision of this Agreement, (vi) to execute and deliver all documents necessary documents, such as amendments or desirable to carry out the intent waivers of this Agreement and any Ancillary Document;
(vi) make all elections a non-material term or decisions contemplated by this Agreement and any Ancillary Document;
provision hereof, (vii) engage, employ to take all other actions required or appoint any agents or representatives (including attorneys, accountants and consultants) permitted to assist be taken by the Member Representative in complying with its duties under this Agreement, and obligations; and
(viii) to take all actions necessary or appropriate in the good faith judgment of the Member Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on , including the execution and delivery of all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed documents on behalf of any Target the Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other eventInterestholders.
(b) The Member Representative may be removed, etcJordan ▇. ▇▇▇▇▇▇▇ hereby accepts his appointment as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties may be removed and replaced after the Effective Time, from time to time upon not less than 90 days prior written notice to the Target Company Members. If Acquiror and the then-serving Member Representative; provided, however, that the Member Representative has a personal conflict may not be removed, except upon the affirmative vote of interest with respect at least 75% of the Percentages (as defined in the Wizkids Operating Agreement) held by Members immediately prior to any actionthe Effective Time (excluding Members who participate as sellers in the Member Escrow Rights Transaction) to such removal and to the identity of the substituted Member Representative. Any vacancy in the position of Member Representative may be filled solely by one of the following persons by the vote of at least 51% of such Percentages: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, decision ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, or determination to ▇▇▇▇▇▇ ▇. Virgin. No bond shall be made by required of the Member Representative, and the Member Representative must notify shall not receive compensation for his or her services. All expenses incurred by the Target Member Representative in performing his duties (including fees and expenses of professional advisors) and any indemnification to be provided to the Member Representative shall be borne by each Company MembersInterestholder to the extent of such Company Interestholder's pro rata portion of the Aggregate Merger Consideration and may, at the discretion of the Member Representative, be withheld from any amount otherwise payable to any Company Interestholder.
(d) The After the Closing Date, the Member Representative shall have the absolute right to exercise or refrain from exercising any right or rights that such Member Representative may have by reason of this Agreement, including the right to consent to the waiver of any obligation of the Acquiror under this Agreement and to enter into an agreement with the Acquiror for the purpose of amending or modifying this Agreement or any agreement effecting any such waiver, amendment or modification, and such Member Representative shall not incur any liability to any Company Interestholder with respect to exercising or refraining from exercising any such right or rights.
(e) The power of attorney granted to the Member Representative is irrevocable and coupled with an interest.
(f) After the Closing Date, (i) the Acquiror shall be entitled to rely exclusively upon any communications given by the Member Representative and shall not be liable to in any manner whatsoever for any action taken or not taken in reliance upon the Target Company Members for actions taken pursuant to this Agreement, except to or not taken or communications made by the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative and (ii) the Acquiror shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay entitled to disregard any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered notices or incurred; provided, that in the event it is finally adjudicated that a Representative Loss communications given or any portion thereof was primarily caused made by the gross negligence, fraud, intentional misconduct Company Interestholders unless given or bad faith of made through the Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests).
Appears in 1 contract
Sources: Merger Agreement (Topps Co Inc)
Member Representative. (ai) By approving this Agreement Robert Rudy is hereby appointed and constituted the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Target Company "Member shall have irrevocably authorized and appointed MRepresenta▇▇▇▇" ▇▇▇▇▇ ▇▇▇▇▇▇ as the initial Member Representative. The Member Representative will act this Agreement, and as such Person’s representative shall serve as agent for and have all powers as attorney-in-fact of each Member (solely with respect to act the matters set forth in clause (y) of this subsection (c)(i)) and each Principal Member and each KMV Corporation Shareholder, for and on behalf of such Person each Member (solely with respect to the matters set forth in clause (y) of this subsection (c)(i)) and each Principal Member and each KMV Corporation Shareholder, to take the following actions in connection with the negotiation, settlement and compromise of (y) Disagreements pursuant to Section 3.2.4 of this Agreement and to take any the release of the Working/Cash Capital Holdback Amount in connection therewith and all actions and make any decisions required or permitted to be taken by Member Representative (z) indemnification claims pursuant to Article 10 of this Agreement, including Agreement and the exercise release of the power to:
(i) Escrow Funds in connection therewith: to give and receive notices and of communications;
(ii) ; to agree to, negotiate, negotiate or enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, of and comply with orders of courts with respect to any disputes involving any claims for indemnification made by Holdings pursuant Parent, the Surviving Company, the Members (solely with respect to Article VI and Article VIII;
the matters set forth in clause (ivy) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and subsection (c)(i)), Principal Members or the KMV Corporation Shareholders under this Agreement; to sign receipts, consents or other documents to effect any Ancillary Document;
(vi) make all elections or decisions of the transactions contemplated by this Agreement or the Ancillary Agreements; and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of the Member Representative in connection with the foregoing.
(ii) If the Member Representative elects to resign as Member Representative for any reason, the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating shall notify Parent of his or her intent to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representativeresign, and on any other action taken or purported the Principal Members and the KMV Corporation Shareholders shall, by written notice to be taken on behalf of any Target Company Parent, appoint a successor Member by Member Representative, as being fully binding upon such Person. Notices Representative within five (5) Business Days thereafter.
(iii) Notice or communications to or from the Member Representative pursuant to this Section 3.2.3 shall constitute notice to or from each of the Target Company Members. Any decision Members (solely with respect to the matters set forth in clause (y) of subsection (c)(i) above), the Principal Members and KMV Corporation Shareholders.
(iv) A decision, act, consent or action by instruction of the Member Representative hereunder, including any agreement between Member Representative and Holdings relating pursuant to the defense, payment or settlement of any claims for indemnification hereunder, this Section 3.2.3 shall constitute a decision decision, act, consent or action instruction of each and all Target Company of the Principal Members and KMV Corporation Shareholders, and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest all of the Target Company Members according (solely with respect to the matters set forth in clause (y) of subsection (c)(i) above), the Principal Members and KMV Corporation Shareholders, and each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub Parent and the Surviving Entity Company shall be entitled to rely on the decisions and actions upon any decision, act, consent or instruction of the prior Member Representative as described being the decision, act, consent or instruction of each and all of the Members (solely with respect to the matters set forth in Section 10.1(aclause (y) of subsection (c)(i) above), the Principal Members and KMV Corporation Shareholders, and each of Parent and the Surviving Company shall be relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(dv) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by hereunder as Member Representative shall be conclusive evidence except for the commission of good faith)actual fraud or willful misconduct. The Target Company Principal Members and KMV Corporation Shareholders on whose behalf the Escrow Funds were deposited into the Escrow Account shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify the Member Representative and hold harmless the Member Representative from harmless against any Loss or expense incurred without bad faith on the part of the Member Representative and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and or in connection with its activities as the acceptance or administration of the Member Representative under this Agreement (Representative's duties hereunder, including the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or reasonable fees and expenses of any portion thereof was primarily caused legal counsel retained by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests).
Appears in 1 contract
Sources: Agreement and Plan of Merger and Stock Purchase Agreement (Moodys Corp /De/)
Member Representative. (a) By approving this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Target Company Member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ as the initial Member Representative. The Member Representative will act as such Person’s representative and attorney-in-fact to act on behalf of such Person with respect to this Agreement and to take any and all actions and make any decisions required or permitted to be taken by Member Representative pursuant to this Agreement, including the exercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(viiii) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(viiiv) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viiiv) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings Verano shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, hereunder shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this SectionSection 9.02, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative , and may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Members of each Company Members according to each Target Company Member’s Pro Rata Share (the “Majority HoldersMembers”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders Members having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) . In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed promptly by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by HoldingsMembers; provided, provided that until such notice is received, Holdings, Merger Sub Verano and the any Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) above9.02(a).
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall shall, severally and not jointly (and with respect to each Company, in accordance with their Pro Rata InterestsShares), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, provided that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests).
Appears in 1 contract
Sources: Merger Agreement
Member Representative. (a) By approving the execution and delivery of this Agreement and the transactions contemplated hereby or Agreement, including by executing and delivering a Letter way of Transmittalmutually executed counterparts hereof, each Target Company Member shall have hereby irrevocably authorized constitutes and appointed M▇appoints D▇▇▇▇ ▇▇▇▇▇▇ as the initial Member Representative. The Member Representative will act as such Person’s representative true and lawful agent and attorney-in-fact of such Member with full powers of substitution to act in the name, place and stead of such Member with respect to the performance on behalf of such Member under the terms and provisions hereof and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Member Representative shall deem necessary or appropriate in connection with any Transaction, but such appointment shall be limited to the power to;
(i) amend or waive any provision hereof (including any condition to Closing) in any manner that does not differentiate among the Members;
(ii) employ, obtain and rely upon the advice of legal counsel, accountants and other professional advisors as the Member Representative, in the sole discretion thereof, deems necessary or advisable in the performance of the duties of the Member Representative;
(iii) incur any expenses, liquidate and withhold assets received on behalf of the Members prior to their distribution to the Members to the extent of any amount that the Member Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing account established solely for such purpose;
(b) The appointment of the Member Representative shall be deemed coupled with an interest and shall be irrevocable, and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Member Representative as the act of any Member in all matters referred to herein. Each Member hereby ratifies and confirms that the Member Representative shall do or cause to be done by virtue of such Member Representative’s appointment as Member Representative of such Member. The Member Representative shall act for each Member on all matters set forth herein in the manner the Member Representative believes to be in the best interest of such Member, but the Member Representative shall not be responsible to any Member for any loss or damage any Member may suffer by reason of the performance by the Member Representative of such Member Representative’s duties hereunder, other than loss or damage arising from willful misconduct or gross negligence in the performance of such Member Representative’s duties hereunder.
(c) Each Member hereby expressly acknowledges and agrees that the Member Representative is authorized to act on behalf of such Person with respect to this Agreement and to take Member notwithstanding any and all actions and make any decisions required dispute or permitted to be taken by Member Representative pursuant to this Agreement, including disagreement among the exercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises ofMembers, and comply with orders or otherwise handle that any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity Person shall be entitled to rely on the decisions any and actions of the prior Member Representative as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If all action taken by the Member Representative has a personal conflict of interest with respect hereunder without liability to, or obligation to inquire of, any action, decision or determination to be made by Member. In the Member Representative, event the Member Representative must notify resigns or ceases to function in such capacity for any reason whatsoever, then the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by successor Member Representative shall be conclusive evidence of good faith). The Target Company the Person the Members shall severally unanimously approve and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests)appoint.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (CLS Holdings USA, Inc.)
Member Representative. (a) By approving Effective upon and by virtue of the Company Member Vote, and without any further act of any of the Holders or Optionholders, the Member Representative is hereby irrevocably appointed as the representative, agent, proxy, and attorney in fact (coupled with an interest) for all the Securityholders for all purposes under this Agreement including the full power and authority on the Holders’ and Optionholders’ behalf: (i) to consummate the Transactions, (ii) to negotiate claims and disputes arising under, or relating to, this Agreement and the transactions other agreements, instruments, and documents contemplated hereby or by executing executed in connection herewith, (iii) to receive and delivering a Letter of Transmittaldisburse to, each Target Company Member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ as the initial Member Representative. The Member Representative will act as such Person’s representative and attorney-in-fact or caused to act be received or disbursed to, any Holder or Optionholder any funds received on behalf of such Person with respect Holder or Optionholder under this Agreement (including, for the avoidance of doubt, any portion of the Merger Consideration) or otherwise, (iv) to withhold any amounts received on behalf of any Holder or Optionholder pursuant to this Agreement (including, for the avoidance of doubt, any portion of the Merger Consideration) or to satisfy (on behalf of the Securityholders) any and all obligations or liabilities of any Holder, Optionholder or the Member Representative in the performance of any of their commitments hereunder, (v) to execute and deliver any amendment or waiver to this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of any Holder or Optionholder), (vi) to receive and disburse to, or cause to be received or disbursed to, any individual pursuant to any incentive compensation agreement providing for a transaction bonus, in effect as of the Closing and (vii) to take any and all other actions and make any decisions required or permitted to be taken by Member Representative pursuant to this Agreement, including the exercise or on behalf of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply any Holder or Optionholder in connection with orders or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(vi) make all elections the other agreements, instruments, and documents contemplated hereby or decisions contemplated by this Agreement executed in connection herewith. Such agency and any Ancillary Document;
(vii) engageproxy are coupled with an interest, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist are therefore irrevocable without the consent of the Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary shall survive the death, incapacity, bankruptcy, dissolution or appropriate in the good faith judgment liquidation of Member Representative for the accomplishment each Holder and Optionholder. Each of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and other parties shall be entitled to rely conclusively (conclusively, without further evidence of any kind whatsoever) inquiry, on any document executed or purported to be executed on behalf of any Target Company Holder or Optionholder by the Member by Member Representative, Representative and on any other action all decisions, consents, instructions, omissions and actions by the Member Representative taken or purported to be taken on behalf of any Target Company Member Holder or Optionholder by the Member Representative, as being fully all of which shall be legally binding upon such Person. Notices each Holder and Optionholder, and no Holder or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member Optionholder shall have the right to object toobject, dissent fromdissent, protest or otherwise contest the same, and each of the other parties to this Agreement are hereby relieved from any liability to any Person in accordance with the foregoing. The Member Representative shall have no duties or obligations hereunder, including any fiduciary duties, except those set forth herein, and such duties and obligations shall be determined solely by the express provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other eventAgreement.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative may be removed for any reason or no reason Effective upon and by the vote or written consent of a majority in interest virtue of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); providedMember Vote, however, in no event shall Member Representative resign or be removed and without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal any further act of Member Representative.
(iii) In the event any of the deathHolders or Optionholders, incapacity, resignation or removal of Member Representative, a new the Member Representative shall be appointed indemnified, held harmless and reimbursed by each Holder and Optionholder against all costs, expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid or incurred by the vote Member Representative in connection with any claim, action, suit or written consent proceeding to which the Member Representative or such other Person is made a party by reason of the Majority Holders.
(iv) Notice fact that it is or was acting as the Member Representative pursuant to the terms of this Agreement. Any and all amounts paid or incurred by the Member Representative in connection with any claim, action, suit or proceeding to which the Member Representative or such vote or other Person is made a copy party by reason of the written consent appointing such new fact that it is or was acting as the Member Representative shall be sent pursuant to Holdings, such appointment to be effective upon the later terms of this Agreement are on behalf of the date indicated in such consent or Securityholders (and, not for the date such notice is received by Holdings; providedavoidance of doubt, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions behalf of the prior Member Representative in any other capacity, as described in Section 10.1(a) abovea Holder or otherwise).
(c) The Member Representative shall act as a fiduciary with fiduciary duties not incur any liability to any Holder or Optionholder by virtue of the Target Company Members. If failure or refusal of the Member Representative has a personal conflict for any reason to consummate the Transactions or relating to the performance of interest with their duties hereunder. The Member Representative shall have no liability in respect to of any action, decision claim or determination to be made by the Member Representative, proceeding brought against the Member Representative must notify by any Holder or Optionholder, regardless of the Target Company Memberslegal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, if the Member Representative took or omitted taking any action in good faith.
(d) If the Member Representative pays or causes to be paid any amounts (on behalf of the Securityholders) in connection with any obligation or liability of a Holder or Optionholder in connection with the Transactions, any such payments and the reasonable expenses of the Member Representative incurred in administering or defending the underlying dispute or claim may be reimbursed, when and as incurred, from the Member Representative Holdback Amount (and, if not so reimbursed from the Member Representative Holdback Amount, the Member Representative shall be indemnified, held harmless and reimbursed by each Member and Optionholder for such amount(s)). The Member Representative may, in its sole and absolute discretion, distribute, or caused to be distributed, any or all of the funds received or held by the Member Representative on behalf of the Securityholders (including, for the avoidance of doubt, any portion of the Merger Consideration) to one or more Holders or Optionholders at any time after the date hereof, which such distribution(s) of funds may be different (i.e., with respect to amount, timing, conditionality or otherwise) for each Holder and Optionholder. Upon full reimbursement of all expenses, costs, obligations or liabilities incurred by the Member Representative in the performance of its duties hereunder, the Member Representative shall distribute, or caused to be distributed, all remaining funds held by the Member Representative on behalf of the Securityholders to the Securityholders; provided, that to ensure compliance with Treasury Regulation 1.409A-3(i)(5)(iv), the Optionholders shall not be liable entitled to receive any payment, and no payment shall be made to the Target Company Members for actions taken pursuant to this AgreementOptionholders, except to in connection with the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith transaction contemplated hereby later than the date which is five (5) years after the Closing Date (it being understood that other Holders may receive payments after the date which is five (5) years after the Closing Date, including, for the avoidance of doubt, amounts that, if paid prior to the date which is five (5) years after the Closing Date, would have been paid to the Optionholders).
(e) Notwithstanding anything to the contrary set forth herein, the Member Representative and its Affiliates shall not be liable for any loss to any Holder or Optionholder for any action taken or not taken by the Member Representative or for any act done or omitted pursuant omission taken or not taken in reliance upon the actions taken or not taken or decisions, communications or writings made, given or executed by Parent or the Merger Sub or the Surviving Entity.
(f) Except as may have been expressly and specifically agreed to in writing by a Holder or Optionholder, on the advice of counselone hand, accountants and the Firm, on the other professionals hand, and experts retained by except for the Member Representative and its Affiliates (i) the Firm has not and is not representing, and shall not be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay deemed to have represented any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and Holder or Optionholder in connection with its activities as the transactions contemplated hereby, and (ii) the Firm has not and is not providing any advice or counsel (including legal advice or counsel), and shall not be deemed to have provided counsel or advice, to any Holder or Optionholder in connection with the transactions contemplated hereby. Each Holder and Optionholder agrees that M▇▇▇▇▇, ▇▇▇▇▇ & B▇▇▇▇▇▇ LLP may represent the Member Representative under this Agreement (and its Affiliates in any matter related to the “Representative Losses”)transactions completed hereby including matters which maybe adverse to such Holder or Optionholder and, in furtherance thereof, each case as such Representative Loss is suffered Holder and Optionholder consents to, and waives, without limitation, restriction or incurred; providedcondition of any kind, that in any actual or potential conflict or other actual or potential objection with respect to the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by Firm’s representation of the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse and its Affiliates in any matter related to the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests)transactions completed hereby.
Appears in 1 contract
Sources: Merger Agreement (Roman DBDR Tech Acquisition Corp.)
Member Representative. (a) By approving this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Target Company Member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ as the initial Member Representative. The Member Representative will act is hereby irrevocably appointed as such Person’s representative the representative, agent, proxy, and attorney-in-fact (with full power of substitution) for all Buddy’s Members, collectively, upon and by virtue of approval of this Agreement and acceptance of any consideration pursuant to this Agreement, with respect to this Agreement and any Ancillary Agreement, and to act on behalf of such Person Buddy’s Member in any amendment of or litigation or arbitration involving this Agreement and any Ancillary Agreement and to do or refrain from doing all such further acts and things, and to execute all such documents, as such Member Representative shall deem necessary or appropriate in conjunction with respect any of the Transactions and the Ancillary Transactions, including the power:
(i) to take all action necessary or desirable in connection with the waiver of any condition to the obligations of Buddy’s or the Buddy’s Members to consummate the Transactions and the Ancillary Transactions;
(ii) to enforce and protect the rights and interests of the Buddy’s Members and to enforce and protect the rights and interests of the Member Representative arising out of or under or in any manner relating to this Agreement and the Ancillary Agreements or the Transactions and the Ancillary Transactions;
(iii) to take refrain from enforcing any right of the Buddy’s Members arising out of or under or in any manner relating to this Agreement or the Ancillary Agreements; provided, however, that no such failure to act on the part of the Member Representative, except as otherwise provided in this Agreement or the Ancillary Agreements, shall be deemed a waiver of any such right or interest by the Member Representative or by the Buddy’s Members unless such waiver is in writing signed by the waiving party or by the Member Representative;
(iv) to negotiate, execute and deliver all actions ancillary agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and make any decisions other documents required or permitted to be taken by given on behalf of the Buddy’s Members in connection with the consummation of the Transactions and the Ancillary Transactions (it being understood that any Buddy’s Member shall execute and deliver any such documents which the Member Representative pursuant agrees to this Agreement, including the exercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIIIexecute);
(v) execute to give and deliver receive on behalf of the Buddy’s Members all documents necessary notices, communications and funds to be given or desirable to carry out the intent of received under this Agreement and the Ancillary Agreements and to receive service of process in connection with any claims under this Agreement and the Ancillary DocumentAgreements, including service of process in connection with arbitration;
(vi) to make all elections or decisions contemplated by receive any payments pursuant to this Agreement and any the Ancillary DocumentAgreements;
(vii) engageto bring or defend any claim or action on behalf of the Buddy’s Members to enforce their rights under this Agreement and in connection with the Transactions and the Ancillary Transactions;
(viii) to bring or defend any claim or action on behalf of the Buddy’s Members to enforce their rights under this Agreement and in connection with the Transactions and the Ancillary Transactions;
(ix) to engage attorneys, employ or appoint any accountants, agents or representatives consultants on behalf of the Buddy’s Members in connection with this Agreement or any Ancillary Agreements and paying any fees and expenses related thereto;
(including attorneys, accountants and consultantsx) to assist make, revoke, or change any tax election by or on behalf of any Buddy’s Member, including but not limited to the Push-Out Election and any election contemplated by Sections 6222 through 6241, any Treasury Regulations issued or other guidance thereunder and any comparable state or local law (and, for the avoidance of doubt, if Vintage RTO, L.P. resigns as Member Representative, a successor Member Representative shall be appointed and shall have the same authority to make the elections described in complying with its duties and obligationsthis Section 7.17(a)(x)); and
(viiixi) to take all actions which under this Agreement and each Ancillary Agreement may be taken by or on behalf of any Buddy’s Member and to do or refrain from doing any further act or deed on behalf of any Buddy’s Member which the Member Representative deems necessary or appropriate in the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings its sole discretion relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions subject matter of this Section, including the power of attorney granted hereby, are independent Agreement and severable, are irrevocable each Ancillary Agreement as fully and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other eventcompletely as such Buddy’s Member could do if personally present.
(b) The Notwithstanding the above, the Member Representative may be removed, etc. as provided not amend this Agreement or any Ancillary Agreement to create any personal liability of any Buddy’s Member hereunder or thereunder other than in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the deathfraud, incapacity, resignation willful misconduct or removal of Member Representative, a new Member Representative shall be appointed intentional misrepresentation by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) aboveBuddy’s Member.
(c) The Member Representative shall will not be liable for any act taken or omitted by it as a fiduciary with fiduciary duties to the Target Company Memberspermitted under this Agreement or any Ancillary Agreement, except if such act is taken or omitted in gross negligence or willful misconduct. If the The Member Representative has a personal conflict of interest with respect to will also be fully protected in relying upon any actionwritten notice, decision demand, certificate or determination document that it in good faith believes to be made by the Member Representative, the Member Representative must notify the Target Company Membersgenuine (including facsimiles or other electronic copies thereof).
(d) The Buddy’s Members shall, severally but not jointly, indemnify (on a pro rata basis based upon their respective ownership of Buddy’s Units) the Member Representative for, and to hold the Member Representative harmless against, any loss, liability or expense incurred without gross negligence or willful misconduct on the part of the Member Representative arising out of or in connection with the Member Representative’s carrying out its duties under this Agreement, including costs and expenses of successfully defending the Member Representative against any claim of liability with respect thereto. The Member 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 good faith and in accordance with the opinion of such counsel.
(e) The parties acknowledge that the Member Representative’s obligations under this Agreement are solely as a representative of the Buddy’s Members and that the Member Representative shall not be liable to the Target Company Members have no personal responsibility or liability for actions taken pursuant to this Agreementany expenses, except to the extent costs or other liabilities incurred by it in such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraudcapacity. All out-of-pocket fees and expenses (including legal, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants accounting and other professionals advisors’ fees and experts retained expenses, if applicable) reasonably incurred by the Member Representative in performing any actions under this Agreement or the Ancillary Agreements will be paid by the Buddy’s Members, as and when such fees and expenses are incurred upon reasonable written documentary evidence (including applicable invoices) of such fees and expenses.
(f) If Vintage RTO, L.P. resigns in writing as Member Representative or otherwise becomes unable to serve as a Member Representative, Vintage RTO, L.P. may designate as a successor Member Representative either (i) an Affiliate of Liberty or (ii) any other person (the “Successor Member Representative”). Upon written acceptance by such Successor Member Representative to serve as a Member Representative, such Successor Member Representative shall thereupon succeed to and become vested with all of the powers and duties and obligations of the applicable original Member Representative without further act, and such original Member Representative shall be conclusive evidence discharged from its duties and obligations hereunder but shall continue to have the benefits of good faith)the indemnification set forth in this Section 7.17. The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Notwithstanding any replacement of such original Member Representative from hereunder, the provisions of this Section 7.17 shall continue in effect for the benefit of such original Member Representative with respect to all actions taken or omitted to be taken by it while acting as a Member Representative. All of the indemnities, immunities and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as powers granted to the Member Representative under this Agreement shall survive the Closing and/or termination of this Agreement.
(g) The grant of authority to the “Member Representative Losses”)provided for in this Section 7.17 is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Buddy’s Member, and shall survive the consummation of the Merger, the other transactions contemplated by this Agreement and the Ancillary Agreements. All actions taken by the Member Representative under this Agreement and the Ancillary Agreements shall be binding upon all Buddy’s Members and their respective successors and assigns as if expressly confirmed and ratified in writing by each case as such Representative Loss of them.
(h) Nothing contained in this Section 7.17 does, is suffered intended to or incurred; provided, that in shall be deemed to grant any rights and interests to the event it is finally adjudicated that a Representative Loss Buddy’s Members under this Agreement or any portion thereof was primarily caused by the gross negligenceAncillary Agreement, fraud, intentional misconduct except as may be expressly set forth in this Agreement or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests)Ancillary Agreement.
Appears in 1 contract
Sources: Merger Agreement (Liberty Tax, Inc.)
Member Representative. (aA) Appointment of Member Representative. By approving this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittalthis Agreement, each Target Company Member shall have Seller irrevocably authorized and appointed Mappoints ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as the initial Member Representative. The Member Representative will act with power of designation and assignment as such Person’s representative his or its true and lawful attorney-in-fact and agent with full power of substitution, to act for and on behalf of, and in the name of, such Seller with the full power, without the consent of such Person with respect Seller, to exercise as the Member Representative in his sole discretion deems appropriate, the powers such Seller could exercise under this Agreement and to take any and all actions and make any decisions required necessary or permitted to be taken by appropriate in the judgment of the Member Representative pursuant to in connection with this Agreement and the transactions contemplated in this Agreement, including . Without limiting the exercise generality of the foregoing, each Seller irrevocably grants the Member Representative full power to:
and authority: (i1) to give and receive notices and communications;
communications relating to the transactions and other matters contemplated by this Agreement; (ii2) agree toto execute and deliver, on behalf of such Seller, and to accept delivery of, on behalf of such Seller, such documents as may be deemed by the Member Representative, in his sole discretion, to be appropriate to consummate the transactions contemplated by this Agreement; (3) to make decisions on behalf of such Seller with respect to the transactions contemplated by this Agreement, including regarding (a) indemnification claims, (b) amendments to this Agreement or any other document delivered under it, and (c) the defense of Third Party Claims that may be the subject of indemnification claims, and to negotiate, enter into settlements and compromises of, and comply with orders demand litigation or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts arbitration with respect to claims such Third Party Claims for indemnification made indemnification; (d) to receive funds, make payments of funds, and give receipts for funds or to receive funds for the payment of expenses of Sellers or to deposit such funds in such accounts as the Member Representative deems appropriate and apply such funds in payment for such expenses; (e) to enforce, on behalf of such Seller, any claim against Buyer arising under this Agreement; (f) to engage attorneys, accountants and other agents at the expense of Sellers; (g) to amend this Agreement (other than this Section 6.25(A)) or any of the instruments to be delivered to Buyer by Holdings such Seller pursuant to Article VI this Agreement; and Article VIII;
(ivh) litigateto give such instructions and to take such action or refrain from taking such action, arbitrateon behalf of such Seller, resolveas the Member Representative deems, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents in his sole discretion, necessary or desirable appropriate to carry out the intent provisions of this Agreement Agreement, including the exercise of all rights granted to Sellers under this Agreement. Buyer may rely exclusively on any notices and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist other acts of the Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully legally binding upon such Personacts of each Seller individually and Sellers collectively. Notices or communications to or from Member Representative shall constitute notice to or from each For purposes of the Target Company Members. Any clarity, any decision or action by the Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute constitutes a decision or action of all Target Company Members Sellers is final and shall be final, binding and conclusive upon each such Personon all Sellers. No Target Company Member shall have the right to Seller may object to, dissent from, protest or otherwise contest the sameMember Representative’s decision or action under this Section 6.25. The provisions of this Section, including the appointment and power of attorney granted hereby, are independent and severable, are irrevocable and by each Seller to the Member Representative is deemed coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, all authority conferred is irrevocable whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at incapacity of any time.
(ii) The Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent Seller or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions occurrence of the prior Member Representative as described in Section 10.1(a) aboveany other event or events.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests).
Appears in 1 contract
Member Representative. (a) By approving Each Selling Member, by execution and delivery of this Agreement, irrevocably designates and appoints the Member Representative as his or her personal representative, attorney-in-fact and agent, with full power of substitution, to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by him or her (including, without limitation, any acts, agreements, amendments or resolution of disputes related to Section 2.3 or Section 2.4). Such designation and appointment shall have the force and effect stated in this Section 11.13.
(b) Each Selling Member acknowledges that the Member Representative shall be the only Person authorized to take action on behalf of all Selling Members in connection with the administration and enforcement of this Agreement and the transactions contemplated hereby other Transaction Documents. Without limiting the foregoing, the Member Representative shall act as the representative of the Selling Members, and shall be authorized to act on behalf of each Selling Member and to take any and all actions required or permitted to be taken by executing and delivering a Letter the Member Representative under this Agreement or any other Transaction Document with respect to any claims (including the settlement or release thereof) made by any Indemnitees for indemnification pursuant to Article IX of Transmittal, each Target Company this Agreement. Each Selling Member shall be bound by all actions taken by the Member Representative in his or her capacity as such. Each of the Selling Members is deemed to have irrevocably further acknowledged that the foregoing appointment and designation shall be deemed to be coupled with an interest and shall (i) survive the subsequent death, incapacity, disability or bankruptcy of such Selling Member, and (ii) extend to such Selling Member’s heirs, executors, legal representatives and permitted assigns, as applicable. Each of the Selling Members is deemed to have authorized the other parties to disregard any notice or other action taken by such Selling Member pursuant to this Agreement except for notices and appointed Mactions of the Member Representative. The other parties are and will be fully protected in dealing with the Member Representative under this Agreement and are entitled to rely on any action so taken or any notice given by the Member Representative and are and will be entitled and authorized to give notices only to the Member Representative for any notice contemplated by this Agreement to be given to any Selling Member.
(c) If ▇▇▇▇▇▇ becomes unable to serve as the Member Representative, then ▇▇▇▇▇▇▇ shall succeed her as the Member Representative. If both ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ become unable to serve as the Member Representative, then ▇▇▇▇▇ shall succeed ▇▇▇▇▇▇▇ as the initial Member Representative. The Member Representative will act as such Person’s representative and attorney-in-fact to act on behalf of such Person with respect to this Agreement and to take any and all actions and make any decisions required or permitted to be taken by Member Representative pursuant to this Agreement, including the exercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to in such capacity while acting without gross negligence, bad faith or willful misconduct and in the advice exercise of counselreasonable judgment. The Member Representative shall only have the duties expressly stated in this Agreement or the other Transaction Documents and shall have no other duty, express or implied. The Member Representative may engage attorneys, accountants and other professionals and experts. The Member Representative may in good faith rely upon information, reports, statements and opinions prepared or presented by such professionals, and any action taken by the Member Representative based on such reliance shall be deemed to have been taken in good faith and in the exercise of reasonable judgment. The Selling Members shall severally, and not jointly, indemnify the Member Representative and hold the Member Representative harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of the Member Representative and arising out of or in connection with the acceptance or administration of the Member Representative’s duties under this Agreement, including the reasonable fees and expenses of any legal counsel, accountants and other professional experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Broadwind Energy, Inc.)
Member Representative. (a) By approving this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittalcontemplated, each Target Company Member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ as the initial Member Representative. The Member Representative will act as such Person’s representative and attorney-in-fact to act on behalf of such Person with respect to this Agreement and to take any and all actions and make any decisions required or permitted to be taken by Member Representative pursuant to this Agreement, including the exercise of the power to:
(i) give and receive notices and communications;
(ii) authorize the deduction of Holdback Shares and the Holdback Cash pursuant to the terms of this Agreement;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.152.13;
(iiiiv) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings Parent pursuant to Article VI and Article VIII;
(ivv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(vvi) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(vivii) make all elections or decisions contemplated by this Agreement and any Ancillary DocumentDocument (including the Escrow Agreement);
(viiviii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viiiix) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings Parent shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings Parent relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative , and may be removed for any reason or no reason by the vote or written consent of a majority in interest 75% of the Target Company Members according Units entitled to each Target Company Member’s Pro Rata Share vote (the “Majority Supermajority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Supermajority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) . In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Supermajority Holders.
(iv) . Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to HoldingsParent, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by HoldingsParent; provided, that until such notice is received, Holdings, Merger Sub Parent and the Surviving Entity Company shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a10.01(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata InterestsShares), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Member Losses shall be satisfied by from the Target Company Members, severally and not jointly (in accordance with their Pro Rata InterestsShares).
Appears in 1 contract
Member Representative. (a) By approving this Agreement the execution and the transactions contemplated hereby or by executing and delivering a Letter of Transmittaldelivery hereof, including counterparts hereof, each Target Company Member shall have hereby irrevocably authorized constitutes and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ appoints Shareholder Representative Services LLC as the initial Member Representative. The Member Representative will act as such Person’s representative true and lawful agent and attorney-in-fact of such Member with full powers of substitution to act in the name, place and stead of such Member with respect to the performance on behalf of such Person with respect to this Agreement Member under the terms and provisions hereof and to take any do or refrain from doing all such further acts and things, and to execute all actions and make any decisions required or permitted to be taken by such documents, as the Member Representative pursuant to this Agreementshall deem necessary or appropriate in connection with any transaction contemplated hereunder, including the exercise of the power to:
(i) give and receive notices and communicationsact for each Member with respect to all indemnification matters referred to herein, including the right to compromise or settle any such claim on behalf of any Member;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply act for each Member with orders or otherwise handle any other matters described in Section 2.15respect to all Purchase Price adjustments referred to herein;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect amend or waive any provision hereof (including any condition to claims for indemnification made by Holdings pursuant to Article VI and Article VIIIClosing) in any manner that does not differentiate among the Members;
(iv) litigateemploy, arbitrateobtain and rely upon the advice of legal counsel, resolveaccountants and other professional advisors as the Member Representative, settle in the sole discretion thereof, deems necessary or compromise any claim for indemnification pursuant to Article VI and Article VIIIadvisable in the performance of the duties of the Member Representative;
(v) execute receive and deliver all documents necessary receipt for any portion of the Purchase Price or desirable any other payment due from the Purchaser to carry out the intent of Members pursuant to this Agreement and any Ancillary DocumentAgreement;
(vi) make all elections incur any expenses, liquidate and withhold assets received on behalf of the Members prior to their distribution to the Members to the extent of any amount that the Member Representative deems necessary for payment of or decisions contemplated by this Agreement as a reserve against expenses, and any Ancillary Documentpay such expenses or deposit the same in an interest-bearing account established solely for such purpose;
(vii) engagereceive all notices, employ or appoint any agents or representatives (including attorneys, accountants communications and consultants) to assist Member Representative in complying with its duties and obligationsdeliveries hereunder on behalf of the Members; and
(viii) take all actions do or refrain from doing any further act or deed on behalf of each Member that the Member Representative deems necessary or appropriate appropriate, in the good faith judgment sole discretion of the Member Representative, relating to the subject matter hereof as fully and completely as any Member could do if personally present and acting as though any reference to any Member herein was a reference to the Member Representative.
(b) The appointment of the Member Representative for shall be deemed coupled with an interest and shall be irrevocable, and any other Person (including the accomplishment Purchaser and the Purchaser Indemnified Parties) may conclusively and absolutely rely, without inquiry, upon any action of the foregoingMember Representative as the act of any Member in all matters referred to herein or in the Member Ancillary Documents and Purchaser Ancillary Documents or related to the transactions contemplated hereby and thereby. Holdings After the Closing any notice or communication by the Purchaser to the Member Representative shall be deemed notice and communication to all of the Members. Each Member hereby ratifies and confirms that the Member Representative shall do or cause to be done by virtue of such Member Representative’s appointment as Member Representative of such Member. The Member Representative shall act for each Member on all matters set forth herein in the manner the Member Representative believes to be in the best interest of such Member, but the Member Representative shall not be responsible to any Member for any loss or damage any Member may suffer by reason of the performance by the Member Representative of such Member Representative’s duties hereunder, other than loss or damage arising from willful misconduct or gross negligence in the performance of such Member Representative’s duties hereunder.
(c) Each Member hereby expressly acknowledges and agrees that the Member Representative is authorized to act on behalf of such Member notwithstanding any dispute or disagreement among the Members, and that any Person (including the Purchaser and the Purchaser Indemnified Parties) shall be entitled to deal exclusively with rely on any and all action taken by the Member Representative on all matters relating hereunder without liability to, or obligation to inquire of, any Member. In the event the Member Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Member Representative shall be the Person the remaining Members appoint upon the execution and delivery to the other Parties by such Person of a joinder to this Agreement (and any Member Ancillary Documents and Purchaser Ancillary Documents to which the Member Representative is a party); provided, however, that in the event for any reason no successor has been appointed within thirty (30) days following such resignation or cessation, then any Member shall have the right to petition a court of competent jurisdiction for appointment of a successor Member Representative. In the event of the actual or anticipated removal, resignation or replacement of the Member Representative, the Members shall promptly notify the Purchaser in writing. During the pendency of any vacancy in the position of the Member Representative, any Person (including Article VIIIthe Purchaser and the other Purchaser Indemnified Parties) and shall be entitled to rely conclusively (and without further evidence inquiry on the actions of the largest owner of Membership Interests as of immediately prior to the Closing as if such Person were the Member Representative hereunder. The Member Representative will incur no liability of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect to any action, decision action or determination to be made omission by the Member Representative, Representative in connection with the Member Representative must notify Representative’s services pursuant to this Agreement and any agreements ancillary hereto, except in the Target Company Members.
(d) event of liability directly resulting from the Member Representative’s gross negligence or willful misconduct. The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence any action or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted omission pursuant to the advice of counsel, accountants and other professionals and experts retained by Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests)will indemnify, indemnify defend and hold harmless the Member Representative from and against, compensate it for, reimburse it for and pay against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, damages fees, costs and expenses, expenses (including reasonable attorneys’ the fees and disbursementsexpenses of counsel and experts and their staffs and all expense of document location, arising out of duplication and in connection with its activities as Member Representative under this Agreement shipment) (the collectively, “Representative Losses”)) arising out of or in connection with the Member Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event it that any such Representative Loss is finally adjudicated that a Representative Loss or any portion thereof was primarily to have been directly caused by the gross negligence, fraud, intentional negligence or willful misconduct or bad faith of the Member Representative, the Member Representative shall will reimburse the Target Company Members the amount of such indemnified Representative Loss to the extent attributable to such gross negligencenegligence or willful misconduct. If not paid directly to the Member Representative by the Members, fraudany such Representative Losses may be recovered by the Member Representative from (i) the funds in the Expense Fund and (ii) the Escrow Funds at such time as remaining amounts would otherwise be distributable to the Members; provided, intentional misconduct that while this section allows the Member Representative to be paid from the aforementioned sources of funds, this does not relieve the Members from their obligation to promptly pay such Representative Losses as they are suffered or bad faithincurred, nor does it prevent the Member Representative from seeking any remedies available to it at law or otherwise. In no event will the Member Representative be required to advance its own funds on behalf of the Member or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of the Member set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Member Representative under this Section 12.18(c). The foregoing indemnities will survive the Closing, the resignation or removal of the Member Representative Losses or the termination of this Agreement. To the extent that this Section 12.18(c) relieves or disclaims the Member Representative of any liability or obligation it would otherwise owe to the Purchaser Indemnified Parties under this Agreement, the Members, on a several and not joint basis, shall assume such liability or obligation to the Purchaser Indemnified Parties and be satisfied responsible therefor.
(d) Upon the Closing, the Company will wire $500,000.00 (the “Expense Fund”) to the Member Representative, which will be used for the purposes of paying directly, or reimbursing the Member Representative for, any third party expenses pursuant to this Agreement and any agreements ancillary hereto. The Members will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Member Representative any ownership right that they may otherwise have had in any such interest or earnings. The Member Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Member Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Member Representative’s responsibilities, the Member Representative will deliver any remaining balance of the Expense Fund to the Members. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests)Members at the time of Closing.
Appears in 1 contract
Member Representative. (a) By approving the execution and delivery of this Agreement and the transactions contemplated hereby or Agreement, including by executing and delivering a Letter way of Transmittalmutually executed counterparts hereof, each Target Company Member shall have hereby irrevocably authorized constitutes and appointed Mappoints ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇. as the initial Member Representative. The Member Representative will act as such Person’s representative true and lawful agent and attorney-in-fact (the “Member Representative”) of such Member with full powers of substitution to act in the name, place and stead of such Member with respect to the performance on behalf of such Person with respect to this Agreement Member under the terms and provisions hereof and to take any do or refrain from doing all such further acts and things, and to execute all actions and make any decisions required or permitted to be taken by such documents, as the Member Representative pursuant shall deem necessary or appropriate in connection with any Transaction, but such appointment shall be limited to this Agreement, including the exercise of the power to:
(i) give and receive notices and communicationsact for each Member with respect to all Purchase Price adjustments referred to herein;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders amend or otherwise handle waive any other matters described provision hereof (including any condition to Closing) in Section 2.15any manner that does not differentiate among the Members;
(iii) agree toemploy, negotiateobtain and rely upon the advice of legal counsel, enter into settlements accountants and compromises ofother professional advisors as the Member Representative, and comply with orders in the sole discretion thereof, deems necessary or advisable in the performance of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIIIthe duties of the Member Representative;
(iv) litigateincur any expenses, arbitrateliquidate and withhold assets received on behalf of the Members prior to their distribution to the Members to the extent of any amount that the Member Representative deems necessary for payment of or as a reserve against expenses, resolve, settle and pay such expenses or compromise any claim deposit the same in an interest-bearing account established solely for indemnification pursuant to Article VI and Article VIIIsuch purpose;
(vb) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment The appointment of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and deemed coupled with an interest and shall not be terminated by irrevocable, and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Member Representative as the act of any one Member in all matters referred to herein. Each Member hereby ratifies and confirms that the Member Representative shall do or Target Company Memberscause to be done by virtue of such Member Representative’s appointment as Member Representative of such Member. The Member Representative shall act for each Member on all matters set forth herein in the manner the Member Representative believes to be in the best interest of such Member, but the Member Representative shall not be responsible to any Member for any loss or damage any Member may suffer by operation reason of Lawthe performance by the Member Representative of such Member Representative’s duties hereunder, whether by death other than loss or other eventdamage arising from willful misconduct or gross negligence in the performance of such Member Representative’s duties hereunder.
(bc) The Each Member hereby expressly acknowledges and agrees that the Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according is authorized to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice act on behalf of such vote Member notwithstanding any dispute or a copy of disagreement among the written consent appointing such new Member Representative shall be sent to HoldingsMembers, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, and that until such notice is received, Holdings, Merger Sub and the Surviving Entity any Person shall be entitled to rely on the decisions any and actions of the prior Member Representative as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If all action taken by the Member Representative has a personal conflict of interest with respect hereunder without Liability to, or obligation to inquire of, any action, decision or determination to be made by Member. In the Member Representative, event the Member Representative must notify resigns or ceases to function in such capacity for any reason whatsoever, then the Target Company Members.
(d) The Member Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by successor Member Representative shall be conclusive evidence of good faith)the Person the Members unanimously approve and appoint. The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests), indemnify and hold harmless Member Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests).* * * * *
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (McBc Holdings, Inc.)
Member Representative. (a) By approving this Agreement and the transactions contemplated The Company hereby or by executing and delivering a Letter of Transmittal, each Target Company Member shall have irrevocably authorized and appointed M▇▇▇▇▇ ▇▇▇▇▇▇ designates Cowen as the initial Member Representative (the “Member Representative. The Member Representative will act as such Person’s representative and attorney-in-fact ”), to act on behalf of such Person with respect to this Agreement and to take any and all actions and make any decisions required or permitted to be taken by Member Representative pursuant to this Agreement, including represent the exercise of Escrow Beneficiaries following the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described Effective Time in Section 2.15;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Member Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of Member Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Member Representative on all matters relating to this Agreement and the Merger. The Member Representative shall have the following powers and duties: (including Article VIIIi) to serve as Member Representative under this Agreement, the Warranty Escrow Agreement, the Expense Escrow Agreement and the EC Escrow Agreement and, in such capacity, take such actions and to incur such costs and expenses as the Member Representative, in its sole discretion, deems necessary or advisable to safeguard the interests of the Escrow Beneficiaries in the Warranty Escrow Fund, Expense Escrow Fund and EC Escrow Fund, including, but not limited to, joining with the Surviving Corporation in giving instructions to the Escrow Agent pursuant to Section 13.12 hereof, contesting or agreeing with any claim by a Parent Group Indemnified Person for recovery from the Warranty Escrow Fund or the EC Escrow Fund and commencing or defending litigation with Parent, Acquisition Sub or the Surviving Corporation and settling any such claim or litigation; (ii) to compromise, modify, settle, waive, relinquish, exchange, liquidate or otherwise resolve the rights of the Escrow Beneficiaries in and to any amounts that are or may be payable after the Effective Time by the Escrow Beneficiaries hereunder, which compromise, modification, settlement, waiver, relinquishment, exchange, liquidation or resolution may include payment to the Escrow Beneficiaries of cash, property or any combination thereof; (iii) except as otherwise provided for in this Agreement, to employ accountants, attorneys and such other agents as the Member Representative may deem advisable and to pay from the Warranty Escrow Fund, as provided in this Agreement, or the Expense Escrow Fund, reasonable compensation for their services; (iv) to maintain a register of the Escrow Beneficiaries; and (v) to take all actions which the Member Representative deems necessary or advisable in order to carry out the foregoing. The Member Representative shall serve without compensation, but shall be entitled to rely conclusively (reimbursement from the Expense Escrow Fund for its reasonable costs and expenses including without further evidence of limitation any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Member Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Member Representative, as being fully binding upon such Person. Notices or communications to or from Member Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Member Representative hereunder, including any agreement between Member Representative and Holdings relating Taxes with respect to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event.
(b) The Member Representative may be removed, etc. as provided in this Section 10.1(b).
(i) The Member Representative may resign at any time.
(ii) The Member Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Member Representative resign or be removed without the Majority Holders having first appointed a new Member Representative who shall assume such duties immediately upon the resignation or removal of Member Representative.
(iii) In the event of the death, incapacity, resignation or removal of Member Representative, a new Member Representative shall be appointed by the vote or written consent of the Majority Holders.
(iv) Notice of such vote or a copy of the written consent appointing such new Member Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, Expense Escrow Fund that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Member Representative as described in Section 10.1(a) above.
(c) The Member Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Member Representative has a personal conflict of interest with respect is obligated to any action, decision or determination to be made by the Member Representative, the Member Representative must notify the Target Company Members.
(d) pay in such capacity. The Member Representative shall not be liable to any Escrow Beneficiaries for the Target Company Members performance of any act or failure to act so long as it acted (or failed to act) in good faith within what it reasonably believed to be the scope of its authority and for actions a purpose which it reasonably believed to be in the best interests of the Escrow Beneficiaries. The Member Representative shall be entitled to indemnity by the Escrow Beneficiaries from and against any and all Losses which may at any time be imposed on, incurred by or asserted against the Member Representative in any way relating to or arising out of this Agreement or any related agreement or instrument or any action taken pursuant or omitted to this Agreementbe taken by the Member Representative under or in connection therewith, except unless such Losses resulted solely from the bad faith of the Member Representative. If an action or proceeding with respect to which the Member Representative is entitled to indemnification hereunder should be commenced or threatened against the Member Representative, the Member Representative shall be entitled to draw from the Expense Escrow Fund, as and when incurred by it, all expenses reasonably incurred in connection with the investigation and defense thereof, provided, however, that, the Member Representative shall repay to the Expense Escrow Fund or distribute to the Escrow Beneficiaries if the Expense Escrow Fund shall have been completely depleted, any expenses so advanced to the extent such actions shall have been determined it is ultimately determined, by final judgment of a court of competent jurisdiction jurisdiction, that the Member Representative is not entitled to have constituted gross negligence indemnification hereunder. The Escrow Beneficiaries may at any time, by majority vote (one vote for each Unit), remove or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to replace the advice of counsel, accountants and other professionals and experts retained by Member Representative. No change in the Member Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Interests)effective as against Parent, indemnify and hold harmless Member Representative from and against, compensate Acquisition Sub or the Surviving Corporation until it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Member Representative under this Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Member Representative, Member Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Interests)has received notice thereof.
Appears in 1 contract
Sources: Merger Agreement (Entegris Inc)