Representative. (a) At the Effective Time, Vista will be constituted and appointed as the Representative. Each Indemnifying Party hereby irrevocably appoints the Representative as the agent, proxy and attorney-in-fact for such Indemnifying Party for all purposes of this Agreement, including full powers and authority on such Indemnifying Party’s behalf to (1) consummate the Transactions, (2) enter into the Escrow Agreement, (3) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the other Transactions; (4) pay expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (5) disburse any funds received hereunder to such Indemnifying Party and each other Indemnifying Party, (6) authorize deliveries to Parent of cash or other property from the Escrow Fund and legally bind each Indemnifying Party to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (7) object to such claims in accordance with Section 7.7; (8) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (9) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance, and (10) subject to Section 6.3, execute for and on behalf of each Indemnifying Party any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages). This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Party or by operation of Law, whether by the death or incapacity of any Indemnifying Party or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Party or the Representative will have received any notice thereof. (b) The Representative will be the sole and exclusive means of asserting or addressing any of the above, and no Indemnifying Party will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Representative that is within the scope of the Representative’s authority pursuant to Section 7.11(a) (a “Representative’s Decision”) will constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all Indemnifying Parties and will be final, binding and conclusive upon each of them. Each Indemnified Person and the Escrow Agent will be entitled to rely upon any Representative’s Decision as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Indemnifying Party. Each Indemnified Person and the Escrow Agent are unconditionally and irrevocably relieved from any liability to any Person for any acts done by them in accordance with any Representative’s Decision. A notice by Parent to the Representative will constitute a notice to each of the Indemnifying Parties. (c) The agency of the Representative may be changed, and the Person serving as the Representative may be replaced from time to time, by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties upon not less than ten days’ prior written notice to Parent. A vacancy in the position of the Representative may be filled by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties. If the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnifying Parties, other than the Representative, representing a majority of the Aggregate Escrow Funding Percentage of all Indemnifying Parties, other than the Representative, will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and the Representative will serve until such successor is duly appointed and qualified to act hereunder. In the event of a vacancy in the position of the Representative, or refusal or incapability of the Representative to serve, which continues for more than 90 days, Parent may appoint a successor Representative who will thereafter be a successor Representative hereunder. If there is not a Representative at any time, any obligation to provide notice to the Representative will be deemed satisfied if such notice is delivered to each of the Indemnifying Parties at their addresses last known to Parent, which will be the addresses set forth in the Closing Statement unless Representative provides notice to Parent of any different address in the manner described in Section 8.3. (d) All expenses, if any, incurred by the Representative in connection with the performance of its duties as the Representative (the “Representative Expenses”) will be borne and paid by the Indemnifying Parties. No bond will be required of the Representative, and the Representative will not receive any compensation for its services. The Representative will also be entitled to advances against Representative Expenses from the Representative Fund, in the judgment and discretion of the Representative. (e) The Representative will not be liable to any Indemnifying Party for any act done or omitted hereunder as the Representative while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert will be conclusive evidence of such good faith. The Indemnifying Parties will jointly and severally indemnify the Representative and hold the Representative harmless against any Losses incurred without bad faith on the part of the Representative and arising out of or in connection with the acceptance or administration of the Representative’s duties hereunder. (f) The Representative will have reasonable access to information about the Surviving Company and the reasonable assistance of the Company’s former officers and employees for purposes of performing the Representative’s duties and exercising the Representative’s rights hereunder, except that no Indemnified Person will be required to provide any information that is subject to a legal privilege or a protective Order or the disclosure of which would violate any Laws. The Representative will treat confidentially and not use or disclose the terms of this Agreement, any Related Agreement or any nonpublic information from or about Parent, Surviving Company or any Indemnified Person to anyone, except that the Representative may disclose the terms or information to the Indemnifying Parties or the Representative’s employees, attorneys, accountants, financial advisors, agents or authorized representatives on a need-to-know basis, as long as the Person agrees to treat such information confidentially. If requested by Parent, the Representative will enter into a separate confidentiality agreement before being provided access to such information. (g) The initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended by this Agreement, and agrees to act as the Representative and to discharge the duties and responsibilities of the Representative pursuant to the terms of this Agreement.
Appears in 1 contract
Representative. (a) At the Effective Time, Vista will be constituted and appointed Each Indemnitor appoints ▇▇▇▇▇▇▇ ▇▇▇▇ PLLC as the Representative. Each Indemnifying Party hereby irrevocably appoints the Representative , with full power of substitution and re-substitution, and in such capacity to serve as the agent, proxy Indemnitor’s agent and true and lawful attorney-in-fact for such Indemnifying Party for all purposes of with the powers and authority as set forth in this Agreement, including full powers and authority the Representative hereby accepts such appointment. The Representative shall be the exclusive agent for and on such Indemnifying Party’s behalf of the Indemnitors to (1) consummate the Transactions, (2) enter into the Escrow Agreement, (3) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Person) Purchaser relating to this Agreement or any of the other Transactions; (4) pay expenses (whether incurred on or after the date hereof) incurred , other than in connection with the negotiation and performance of this Agreement, Direct Securityholder Claims; (5) disburse any funds received hereunder to such Indemnifying Party and each other Indemnifying Party, (62) authorize deliveries to Parent Purchaser of cash or other property from the Escrow Fund Consideration Shares and legally bind each Indemnifying Party Indemnitor to pay cash or Consideration Shares directly to Parent Purchaser in satisfaction of claims asserted by Parent Purchaser (on behalf of itself or any other Indemnified Person, including by not objecting to such claims), other than in connection with Direct Securityholder Claims; (73) object to such claims in accordance with Section 7.77.7 (Third Party Claims) other than in connection with Direct Securityholder Claims; (8) 4) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims, other than in connection with Direct Securityholder Claims; (95) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance, and other than in connection with Direct Securityholder Claims; (106) subject to Section 6.36.1 (Amendment), execute for and on behalf of each Indemnifying Party Indemnitor any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses information contained in the Preliminary Spreadsheet and/or Final Spreadsheet); and (7) subject to Section 6.2 (Extension; Waiver), execute for and on behalf of each Indemnitor any waiver or sharing percentages)extension to this Agreement. The Representative shall be the sole and exclusive means of asserting or addressing any of the above, and no Indemnitor shall have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Party Indemnitor or by operation of Law, whether by the death or incapacity of any Indemnifying Party Indemnitor or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Party Indemnitor or the Representative will have received any notice thereof.
(b) The Representative will be the sole and exclusive means of asserting or addressing any of the above, and no Indemnifying Party will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Representative that is within the scope of the Representative’s authority pursuant to Section 7.11(aunder this Agreement, including Sections 1.2 (Closing), 1.5 (Payment of Milestone Consideration) and 7.8(a) (a “Representative’s Decision”) will ), shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all Indemnifying Parties Securityholders or Indemnitors, as the case may be, and will shall be final, binding and conclusive upon each of them. Each Indemnified Person and the Escrow Agent will Purchaser shall be entitled to rely upon any Representative’s Decision such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Indemnifying PartySecurityholder or Indemnitor. Each Indemnified Person and the Escrow Agent are Purchaser is unconditionally and irrevocably relieved from any liability to any Person person for any acts done by them in accordance with any Representative’s Decision. A notice by Parent such notice, communication, decision, action, failure to the Representative will constitute act within a notice to each designated period of time, agreement, consent or instruction of the Indemnifying PartiesRepresentative.
(c) The agency scope of the powers of the Representative as agent for the Indemnitors may be changed, and the Person serving as the Representative may be replaced from time to time, by the vote or consent of Indemnifying Parties Indemnitors representing a majority in interest of all Indemnitors (determined based on issuance of the Aggregate Escrow Funding Percentages of all Indemnifying Parties Closing Consideration Shares and the Closing Consideration Cash Payment) upon not less than ten thirty (30) days’ prior written notice to ParentPurchaser. A vacancy in the position of the Representative may be filled by the vote or consent of Indemnifying Parties or Indemnitors representing a majority in interest of all Indemnitors (determined based on the issuance of the Aggregate Escrow Funding Percentages of all Indemnifying PartiesClosing Consideration Shares and the Closing Consideration Cash Payment). If the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnifying PartiesIndemnitors, other than the Representative, representing a majority in interest of the Aggregate Escrow Funding Percentage Indemnitors (determined based on the issuance of all Indemnifying Partiesthe Closing Consideration Shares and the Closing Consideration Cash Payment), other than the Representative, will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and the Representative will serve until such successor is duly appointed and qualified to act hereunder. In the event of a vacancy in the position of the Representative, or refusal or incapability of the Representative to serve, which continues for more than 90 days, Parent may appoint a successor Representative who will thereafter be a successor Representative hereunder. If there is not a Representative at any time, any obligation to provide notice to the Representative will be deemed satisfied if such notice is delivered to each of the Indemnifying Parties Indemnitors at their addresses last known to ParentPurchaser, which will be the addresses address set forth in the Closing Statement Final Spreadsheet unless Representative provides notice to Parent Purchaser of any a different address in the manner described in Section 8.38.3 (Notices).
(d) All expenses, if any, incurred by the Representative in connection with the performance of its his duties as the Representative (the “Representative Expenses”) will be borne and paid by the Indemnifying PartiesIndemnitors according to the relative amount of Closing Consideration Shares issued to such Person and the Closing Consideration Cash Payment paid to such Person. No bond will be required The Representative may use the funds in the Representative Fund to pay the expenses incurred by the Representative under the authorization granted in Section 7.8. Any Representative Fund remaining after payment of all of the RepresentativeRepresentative Expenses following the later of (i) the resolution of all indemnification claims under Article 7 and the determination by the Representative that such funds are no longer necessary in connection with indemnification claims that may be brought thereunder and (ii) the payment of the maximum amount recoverable by the Purchaser from the Securityholders, if any, shall be distributed to the Securityholders in accordance with the Final Spreadsheet. The Representative shall hold, invest, reinvest and disburse the Representative Fund in trust for all of the Securityholders and the Representative Fund shall not be used for any other purpose. Any expense, liability or obligation that the Representative incurs or pays on behalf of a Securityholder or group of Securityholders shall be promptly reimbursed by Securityholder(s) on whose behalf such expenses were paid. In the event any Securityholder does not promptly reimburse the Representative for any such expense, liability or obligation, the Representative shall have the right to withhold and keep such amount from any payments to be made to such Securityholder hereunder. For Tax purposes, each Securityholder shall be treated as having: (A) received at Closing as consideration for its Shares and Options that portion of the Representative Fund that such Securityholder would have received if such amount were paid directly to the Securityholders at Closing; and (B) contributed such Securityholder’s respective portion to a grantor trust, owned by the Securityholders and of which the Representative is the trustee. Consistent with this treatment, each Securityholder will report its portion of the Representative Fund, and subsequent income or expenses of the Representative Fund, on its respective Tax Returns, and the Representative will not receive any compensation for its servicesprovide the Securityholders with the required statements regarding the Representative Fund’s income and expenses as to assist the Securityholders with their respective Tax reporting obligations. The Representative will also be entitled Notices or communications to advances against Representative Expenses or from the Representative Fund, in the judgment and discretion shall constitute notice to or from each of the RepresentativeIndemnitors.
(e) The Representative will shall not be liable to any Indemnifying Party Indemnitor for any act done or omitted hereunder as the Representative while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert will shall be conclusive evidence of such good faith. The Indemnifying Parties will Indemnitors shall severally and not jointly and severally indemnify the Representative and hold the Representative him harmless against any Losses loss, liability, damage, claim, suit, penalty, cost or expense (including fees and expenses of counsel) incurred without gross negligence or bad faith on the part of the Representative and arising out of or in connection with the acceptance or administration of the Representative’s his duties hereunder.
(f) The Representative will shall have reasonable access to information about the Surviving Company and the reasonable assistance of the Company’s former officers and employees for purposes of performing the Representative’s his duties and exercising the Representative’s his rights hereunder, except that no Indemnified Person will be required to provide any information that is subject to other than in context of a legal privilege or a protective Order or the disclosure of which would violate any Lawsdispute hereunder. The Representative will shall treat confidentially and not use or disclose the terms of this Agreement, any Related Agreement or any nonpublic information from or about Parent, Surviving Company or any Indemnified Person Proprietary Information to anyone, except that the Representative may disclose the terms or information to the Indemnifying Parties Indemnitors or the Representative’s employees, attorneys, accountants, financial advisors, agents or authorized representatives on a need-to-know basis, as long as the Person agrees to treat such information confidentially. If requested by ParentPurchaser, the Representative will shall enter into a separate confidentiality agreement before being provided access to such information.
(g) The By his signature to this Agreement, the initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended by this Agreement, and agrees to act as the Representative and to discharge the duties and responsibilities of the Representative pursuant to the terms of this Agreement.
Appears in 1 contract
Sources: Purchase Agreement (Agenus Inc)
Representative. (a) At the Effective Time, Vista will be constituted and appointed as the Representative. Each Indemnifying Party Seller hereby irrevocably appoints the Representative as the agent, proxy and attorney-in-fact for to represent such Indemnifying Party for all purposes of this Agreement, including full powers and authority on such Indemnifying Party’s behalf to (1) consummate the Transactions, (2) enter into the Escrow Agreement, (3) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the other Transactions; (4) pay expenses (whether incurred on or after the date hereof) incurred Seller in connection with the negotiation and performance of this Agreement, (5) disburse any funds received hereunder to such Indemnifying Party and each other Indemnifying Party, (6) authorize deliveries to Parent of cash part or other property from the Escrow Fund and legally bind each Indemnifying Party to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (7) object to such claims in accordance with Section 7.7; (8) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (9) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment transactions contemplated by this Agreement and to take any and all action on its behalf under this Agreement that may be taken or received by such Seller as to any or all of the foregoing, in each case without having to seek or obtain the consent of any Person transactions contemplated under any circumstance, and (10) subject to Section 6.3, execute for and on behalf of each Indemnifying Party any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages). This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Party or by operation of Law, whether by the death or incapacity of any Indemnifying Party or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Party or the Representative will have received any notice thereof.
(b) The Representative will be the sole and exclusive means of asserting or addressing any of the above, and no Indemnifying Party will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Representative that is within the scope of the Representative’s authority pursuant to Section 7.11(a) (a “Representative’s Decision”) will constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all Indemnifying Parties and will be final, binding and conclusive upon each of them. Each Indemnified Person and the Escrow Agent will be entitled to rely upon any Representative’s Decision as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Indemnifying Party. Each Indemnified Person and the Escrow Agent are unconditionally and irrevocably relieved from any liability to any Person for any acts done by them in accordance with any Representative’s Decision. A notice by Parent to the Representative will constitute a notice to each of the Indemnifying Parties.
(c) The agency of the Representative may be changed, and the Person serving as the Representative may be replaced from time to time, by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties upon not less than ten days’ prior written notice to Parent. A vacancy in the position of the Representative may be filled by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties. If the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnifying Parties, other than the Representative, representing a majority of the Aggregate Escrow Funding Percentage of all Indemnifying Parties, other than the Representative, will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and the Representative will serve until such successor is duly appointed and qualified to act hereunder. In the event of a vacancy in the position of the Representative, or refusal or incapability of the Representative to serve, which continues for more than 90 days, Parent may appoint a successor Representative who will thereafter be a successor Representative hereunder. If there is not a Representative at any time, any obligation to provide notice to the Representative will be deemed satisfied if such notice is delivered to each of the Indemnifying Parties at their addresses last known to Parent, which will be the addresses set forth in the Closing Statement unless Representative provides notice to Parent of any different address in the manner described in Section 8.3.
(d) All expenses, if any, incurred by the Representative in connection with the performance of its duties as the Representative (the “Representative Expenses”) will be borne and paid by the Indemnifying Parties. No bond will be required of the Representative, and the Representative will not receive any compensation for its services. The Representative will also be entitled to advances against Representative Expenses from the Representative Fund, in the judgment and discretion of the Representative.
(e) The Representative will not be liable to any Indemnifying Party for any act done or omitted hereunder as the Representative while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert will be conclusive evidence of such good faith. The Indemnifying Parties will jointly and severally indemnify the Representative and hold the Representative harmless against any Losses incurred without bad faith on the part of the Representative and arising out of or in connection with the acceptance or administration of the Representative’s duties hereunder.
(f) The Representative will have reasonable access to information about the Surviving Company and the reasonable assistance of the Company’s former officers and employees for purposes of performing the Representative’s duties and exercising the Representative’s rights hereunder, except that no Indemnified Person will be required to provide any information that is subject to a legal privilege or a protective Order or the disclosure of which would violate any Laws. The Representative will treat confidentially and not use or disclose the terms of this Agreement. Without giving notice to any Seller, the Representative shall have full and irrevocable authority on behalf of each Seller to (a) deal with the Buyer, (b)accept and give notices and other communications relating to this Agreement, (c) settle any Related Agreement disputes relating to this Agreement, (d) waive any condition to the obligations of the Sellers included in this Agreement, (e) execute any document or any nonpublic information from or about Parent, Surviving Company or any Indemnified Person to anyone, except instrument that the Representative may disclose deem necessary or desirable in the terms exercise of the authority granted under this Section 1.7, and (f) act in connection with all matters arising out of, based upon, or information to in connection with, this Agreement and the Indemnifying Parties or the Representative’s employees, attorneys, accountants, financial advisors, agents or authorized representatives on a need-to-know basis, as long as the Person transactions contemplated hereby. Each Seller understands and agrees to treat such information confidentially. If requested by Parent, that the Representative will enter into a separate confidentiality agreement before being provided access to such information.
(g) The initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended by this Agreement, and agrees to act has been appointed as the Representative of the other Seller. The Buyer shall be entitled to rely on the advice, information, instructions and to discharge the duties and responsibilities decisions of the Representative pursuant evidenced by a writing signed by him without any obligation independently to verify, authenticate or seek the terms confirmation or approval of this Agreementthe Representative's advice, information, instructions or decisions or any other facts from any Seller or any other Person. Any certificate to be delivered by the Sellers at the Closing may be executed and delivered by the Representative on behalf of all of the Sellers.
Appears in 1 contract
Sources: Securities Purchase Agreement (Hovnanian Enterprises Inc)
Representative. (a) At Mr. ▇▇▇▇ ▇▇▇ll, by virtue of the Effective TimeMerger and the resolutions to be adopted by the Shareholders, Vista will be constituted and irrevocably appointed as the Representative. Each Indemnifying Party hereby irrevocably appoints the Representative as the agent, proxy and attorney-in-fact for such Indemnifying Party for all purposes of this Agreementand authorized and empowered to act, including full powers and authority on such Indemnifying Party’s behalf to (1) consummate the Transactions, (2) enter into the Escrow Agreement, (3) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the other Transactions; (4) pay expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (5) disburse any funds received hereunder to such Indemnifying Party and each other Indemnifying Party, (6) authorize deliveries to Parent of cash or other property from the Escrow Fund and legally bind each Indemnifying Party to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (7) object to such claims in accordance with Section 7.7; (8) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (9) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance, and (10) subject to Section 6.3, execute for and on behalf of each Indemnifying Party any amendment or all of the Shareholders (with full power of substitution in the premises) in connection with the indemnity provisions of Article 11 as they relate to the Shareholders generally, the Escrow Agreement, the notice provision of this Agreement, and such other matters as are reasonably necessary for the consummation of the Transactions including, without limitation, to act as the representative of such Shareholders to review and authorize all set-offs, claims and other payments authorized or directed by the -------------------------------------------------------------------------------- * Portions of this Exhibit have been deleted and filed separately with the Securities and Exchange Commission pursuant to the Company's request for confidential treatment pursuant to Rule 24b-2 promulgated under the Securities Exchange Act. Escrow Agreement and dispute or question the accuracy thereof, to compromise on their behalf with Jabil any claims asserted thereunder and to authorize payments to be made with respect thereto and to take such further actions as are authorized in this Agreement (the above named representative, as well as any subsequent representative of such Shareholders appointed by him or, after his death or incapacity, elected by vote of holders of a majority of the Jabil Shares received by such Shareholders pursuant to the Merger, being referred to herein as the "Representative"). The Representative shall not be liable, in his capacity as representative of such Shareholders, to any of the Shareholders and their respective affiliates or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages). This appointment of agency and this power of attorney is coupled other person with an interest and will be irrevocable and will not be terminated by any Indemnifying Party or by operation of Law, whether by the death or incapacity of any Indemnifying Party or the occurrence of any other event, and respect to any action taken or omitted to be taken by the Representative will be as valid as if such death, incapacity under or other event had not occurred, regardless of whether or not any Indemnifying Party or the Representative will have received any notice thereof.
(b) The Representative will be the sole and exclusive means of asserting or addressing any of the above, and no Indemnifying Party will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Representative that is within the scope of the Representative’s authority pursuant to Section 7.11(a) (a “Representative’s Decision”) will constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all Indemnifying Parties and will be final, binding and conclusive upon each of them. Each Indemnified Person and the Escrow Agent will be entitled to rely upon any Representative’s Decision as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Indemnifying Party. Each Indemnified Person and the Escrow Agent are unconditionally and irrevocably relieved from any liability to any Person for any acts done by them in accordance with any Representative’s Decision. A notice by Parent to the Representative will constitute a notice to each of the Indemnifying Parties.
(c) The agency of the Representative may be changed, and the Person serving as the Representative may be replaced from time to time, by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties upon not less than ten days’ prior written notice to Parent. A vacancy in the position of the Representative may be filled by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties. If the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnifying Parties, other than the Representative, representing a majority of the Aggregate Escrow Funding Percentage of all Indemnifying Parties, other than the Representative, will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and the Representative will serve until such successor is duly appointed and qualified to act hereunder. In the event of a vacancy in the position of the Representative, or refusal or incapability of the Representative to serve, which continues for more than 90 days, Parent may appoint a successor Representative who will thereafter be a successor Representative hereunder. If there is not a Representative at any time, any obligation to provide notice to the Representative will be deemed satisfied if such notice is delivered to each of the Indemnifying Parties at their addresses last known to Parent, which will be the addresses set forth in the Closing Statement unless Representative provides notice to Parent of any different address in the manner described in Section 8.3.
(d) All expenses, if any, incurred by the Representative in connection with this Agreement or the performance of its duties Escrow Agreement in his capacity as the Representative (the “Representative Expenses”) will be borne and paid by the Indemnifying Parties. No bond will be required of the Representative, and the Representative will not receive any compensation for its services. The Representative will also be entitled to advances against Representative Expenses from the Representative Fund, in the judgment and discretion of the Representative.
(e) The Representative will not be liable to any Indemnifying Party for any act done or omitted hereunder as the Representative while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert will be conclusive evidence representative of such good faith. The Indemnifying Parties will jointly and severally indemnify the Representative and hold the Representative harmless against any Losses incurred without Shareholders unless such action or omission results from or arises out of fraud, gross negligence, willful misconduct or bad faith on the part of the Representative. Jabil and the Surviving Corporation and each of their respective affiliates shall be entitled to rely on such appointment and treat such Representative as the duly appointed attorney-in-fact of each Shareholder. Each Shareholder who votes in favor of the Merger pursuant to the terms hereof, by such vote, without any further action, and arising out of or each Shareholder who receives any Jabil Shares in connection with the Merger, by acceptance or administration thereof and without any further action, confirms such appointment and authority and acknowledges and agrees that such appointment is irrevocable and coupled with an interest, it being understood that the willingness of Jabil to enter into this Agreement is based, in part, on the appointment of a representative to act on behalf of the Representative’s duties hereunderShareholders.
(f) The Representative will have reasonable access to information about the Surviving Company and the reasonable assistance of the Company’s former officers and employees for purposes of performing the Representative’s duties and exercising the Representative’s rights hereunder, except that no Indemnified Person will be required to provide any information that is subject to a legal privilege or a protective Order or the disclosure of which would violate any Laws. The Representative will treat confidentially and not use or disclose the terms of this Agreement, any Related Agreement or any nonpublic information from or about Parent, Surviving Company or any Indemnified Person to anyone, except that the Representative may disclose the terms or information to the Indemnifying Parties or the Representative’s employees, attorneys, accountants, financial advisors, agents or authorized representatives on a need-to-know basis, as long as the Person agrees to treat such information confidentially. If requested by Parent, the Representative will enter into a separate confidentiality agreement before being provided access to such information.
(g) The initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended by this Agreement, and agrees to act as the Representative and to discharge the duties and responsibilities of the Representative pursuant to the terms of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Jabil Circuit Inc)
Representative. (a) At For purposes of Claims under Section 9.02 that are payable under the Effective TimeEscrow Agreement, Vista will be constituted the Genisys Shareholders hereby consent to the appointment of the Representative, as representative of the Genisys Shareholders, and appointed as the Representative. Each Indemnifying Party hereby irrevocably appoints the Representative as the agent, proxy and attorney-in-fact for such Indemnifying Party and on behalf of each Genisys Shareholder, and, subject to the express limitation set forth below, the taking by the Representative of any and all actions and the making of any decisions required or permitted to be taken by the Representative for all purposes of this Agreement, including full powers and authority on such Indemnifying Party’s behalf to (1) consummate the Transactions, (2) enter into Claims under Section 9.02 that are payable under the Escrow Agreement, including, without limitation, the exercise of the power to (3i) give and receive notices and communications authorize delivery to or from Parent (on behalf ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ of itself the Escrow Shares, or any other Indemnified Person) relating to this Agreement or any of the other Transactions; (4) pay expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreementportion thereof, (5) disburse any funds received hereunder to such Indemnifying Party and each other Indemnifying Party, (6) authorize deliveries to Parent of cash or other property from the Escrow Fund and legally bind each Indemnifying Party to pay cash directly to Parent in satisfaction of claims asserted by Parent any Claims, (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (7ii) object to such claims in accordance with Section 7.7; (8) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders orders of courts and awards of arbitrators with respect toto any Claims, such claims; (9iii) resolve any Claims, and (iv) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoingforegoing and all of the other terms, in each case without having conditions and limitations of this Agreement and the Escrow Agreement. The Representative will have unlimited authority and power to seek or obtain the consent of any Person under any circumstance, and (10) subject to Section 6.3, execute for and act on behalf of each Indemnifying Party any amendment Genisys Shareholder with respect to this Agreement, Claims under Section 9.02 that are payable under the Escrow Agreement and the disposition, settlement or any exhibitother handling of all Claims, annex rights or schedule hereto or thereto (including for obligations arising under Section 9.02 that are payable under the purpose of amending addresses or sharing percentages)Escrow Agreement so long as all Genisys Shareholders are treated in the same manner. This appointment of agency and this power of attorney is coupled with an interest and The Genisys Shareholders will be irrevocable and will not be terminated bound by any Indemnifying Party or by operation of Law, whether by the death or incapacity of any Indemnifying Party or the occurrence of any other event, and any action all actions taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Party or in connection with Claims under Section 9.02 that are payable under the Representative will have received any notice thereof.
(b) The Representative will be the sole and exclusive means of asserting or addressing any of the aboveEscrow Agreement, and no Indemnifying Party will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Representative that is within the scope of the Representative’s authority pursuant to Section 7.11(a) (a “Representative’s Decision”) will constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all Indemnifying Parties and will be final, binding and conclusive upon each of them. Each Indemnified Person and the Escrow Agent ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ will be entitled to rely upon on any action or decision of the Representative’s Decision as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Indemnifying Party. Each Indemnified Person In performing the functions specified in Section 9.02 and the Escrow Agent are unconditionally and irrevocably relieved from any liability to any Person for any acts done by them in accordance with any Representative’s Decision. A notice by Parent to Agreement, the Representative will constitute a notice not be liable to each the Genisys Shareholders in the absence of gross negligence or willful misconduct. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ hereby accepts the Indemnifying Parties.
(c) position of Representative subject to the right to resign as set forth below. The agency of the Representative may be changedresign from such position, and the Person serving as the Representative may be replaced from time to time, effective upon a new representative being appointed in writing by the vote or consent of Indemnifying Parties representing Genisys Shareholders who beneficially own a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties upon not less than ten days’ prior written notice to ParentShares. A vacancy in the position of the Representative may be filled by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties. If the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnifying Parties, other than the Representative, representing a majority of the Aggregate Escrow Funding Percentage of all Indemnifying Parties, other than the Representative, will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and the The Representative will serve until such successor is duly appointed not be entitled to receive any compensation from ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ or the Genisys Shareholders in connection with this Agreement or the Escrow Agreement. Any out-of-pocket costs and qualified to act hereunder. In the event of a vacancy in the position of the Representative, or refusal or incapability of the Representative to serve, which continues for more than 90 days, Parent may appoint a successor Representative who will thereafter be a successor Representative hereunder. If there is not a Representative at any time, any obligation to provide notice to the Representative will be deemed satisfied if such notice is delivered to each of the Indemnifying Parties at their addresses last known to Parent, which will be the addresses set forth in the Closing Statement unless Representative provides notice to Parent of any different address in the manner described in Section 8.3.
(d) All expenses, if any, expenses reasonably incurred by the Representative in connection with the performance of its duties as the Representative (the “Representative Expenses”) will be borne and paid by the Indemnifying Parties. No bond will be required of the Representative, and the Representative will not receive any compensation for its services. The Representative will also be entitled to advances against Representative Expenses from the Representative Fund, in the judgment and discretion of the Representative.
(e) The Representative will not be liable to any Indemnifying Party for any act done or omitted hereunder as the Representative while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert will be conclusive evidence of such good faith. The Indemnifying Parties will jointly and severally indemnify the Representative and hold the Representative harmless against any Losses incurred without bad faith on the part of the Representative and arising out of or in connection with the acceptance or administration of the Representative’s duties hereunder.
(f) The Representative will have reasonable access to information about the Surviving Company and the reasonable assistance of the Company’s former officers and employees for purposes of performing the Representative’s duties and exercising the Representative’s rights hereunder, except that no Indemnified Person will be required to provide any information that is subject to a legal privilege or a protective Order or the disclosure of which would violate any Laws. The Representative will treat confidentially and not use or disclose the terms of this Agreement, any Related Agreement or any nonpublic information from or about Parent, Surviving Company or any Indemnified Person to anyone, except that the Representative may disclose the terms or information to the Indemnifying Parties or the Representative’s employees, attorneys, accountants, financial advisors, agents or authorized representatives on a need-to-know basis, as long as the Person agrees to treat such information confidentially. If requested by Parent, the Representative will enter into a separate confidentiality agreement before being provided access to such information.
(g) The initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended by this Agreement, and agrees to act as the Representative and to discharge the duties and responsibilities of the Representative actions taken pursuant to the terms of this Section 9.02 and the Escrow Agreement will be paid (but not out of the Escrow Shares) by the Genisys Shareholders to the Representative in proportion to their percentage interests in the Escrow Shares as set forth on ATTACHMENT A to the Escrow Agreement.
Appears in 1 contract
Representative. (a) At By virtue of the Effective Timeapproval of the First Step Merger, Vista will this Agreement and the transactions contemplated hereby by the Company Stockholders, and by the receiving the benefits of the First Step Merger, including the right to receive the consideration payable in connection with the First Step Merger, each of the Company Stockholders shall be constituted deemed to have agreed, and appointed hereby agrees, to appoint Shareholder Representative Services LLC as the Representative. Each Indemnifying Party hereby irrevocably appoints the Representative as the agent, proxy its agent and attorney-in-fact fact, as the Representative for such Indemnifying Party for all purposes and on behalf of this Agreement, including full powers and authority on such Indemnifying Party’s behalf the Company Stockholders to (1) consummate the Transactions, (2) enter into the Escrow Agreement, (3i) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the other Transactions; (4) pay expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreementcommunications, (5) disburse any funds received hereunder to such Indemnifying Party and each other Indemnifying Party, (6ii) authorize deliveries payment to Parent of cash or other property any Indemnified Party from the Indemnity Escrow Fund and legally bind each Indemnifying Party to pay cash directly to Parent in satisfaction of claims asserted by Parent such Indemnified Party pursuant to Section 8.2(a), (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (7iii) object to such claims in accordance with Section 7.7; payments, (8) consent or iv) agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders orders of courts and awards of arbitrators with respect to such claims, (v) assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Stockholder or by any such claims; Company Stockholder against any Indemnified Party or any dispute between any Indemnified Party and any such Company Stockholder, in each case relating to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby, (9vi) authorize the release or delivery to the Representative of amounts from the Representative Escrow Fund in satisfaction or payment of any Representative Expenses (as defined in Section 8.8(b) below), and (vii) to take all other actions that are either (A) necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, including taking such action as necessary to transfer any shares of Parent Common Stock held in each case without having the Indemnity Escrow Fund to seek any Indemnified Party or obtain other Person as required under this Agreement or the consent of any Person under any circumstance, and (10) subject to Section 6.3, execute for and on behalf of each Indemnifying Party any amendment to this Escrow Agreement, or (B) specifically mandated by the terms of this Agreement or the Escrow Agreement or any exhibitAgreement. The identity of the Representative may be changed by the Company Stockholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, annex or schedule hereto or thereto (including for however, that the purpose of amending addresses or sharing percentages). This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will Representative may not be terminated by any Indemnifying Party removed unless holders of at least a majority of the interest of the Indemnity Escrow Fund agrees in writing to such removal and to the identity of the substituted agent. Notwithstanding the foregoing, if the Representative shall die, be removed, become disabled, resign or by operation otherwise be unable to fulfill its responsibilities hereunder, a vacancy in the position of Law, whether Representative may be filled by the death holders of a majority in interest of the Indemnity Escrow Fund. Notices or incapacity of any Indemnifying Party communications to or the occurrence of any other event, and any action taken by from the Representative will be as valid as if such death, incapacity shall constitute notice to or other event had not occurred, regardless of whether or not any Indemnifying Party or from the Representative will have received any notice thereof.
(b) The Representative will be the sole and exclusive means of asserting or addressing any of the above, and no Indemnifying Party will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the RepresentativeCompany Stockholders. Any notice or communication given or received by, and any A decision, actionact, failure to act within a designated period of time, agreement, consent, settlement, resolution consent or instruction of, the Representative that is within the scope of the Representative’s authority , including an amendment, extension or waiver of this Agreement pursuant to Section 7.11(a) (a “Representative’s Decision”) will 9.4 and Section 9.5 hereof, shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period decision of time, agreement, consent, settlement, resolution or instruction of all Indemnifying Parties the Company Stockholders and will shall be final, binding and conclusive upon the Company Stockholders; and each of them. Each Indemnified Person and the Escrow Agent will be entitled to and Parent may rely upon any Representative’s Decision such decision, act, consent or instruction of the Representative as being a notice or communication to or by, or a the decision, actionact, failure to act within a designated period of time, agreement, consent, settlement, resolution consent or instruction of, each and every such Indemnifying Partyof the Company Stockholders. Each Indemnified Person and of the Escrow Agent are unconditionally and irrevocably Parent is hereby relieved from any liability to any Person person for any acts done by them in accordance with any Representative’s Decision. A notice by Parent to the Representative will constitute a notice to each such decision, act, consent or instruction of the Indemnifying PartiesRepresentative. Each Company Stockholder hereby agrees to receive correspondence from the Representative, including in electronic form.
(c) The agency of the Representative may be changed, and the Person serving as the Representative may be replaced from time to time, by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties upon not less than ten days’ prior written notice to Parent. A vacancy in the position of the Representative may be filled by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties. If the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnifying Parties, other than the Representative, representing a majority of the Aggregate Escrow Funding Percentage of all Indemnifying Parties, other than the Representative, will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and the Representative will serve until such successor is duly appointed and qualified to act hereunder. In the event of a vacancy in the position of the Representative, or refusal or incapability of the Representative to serve, which continues for more than 90 days, Parent may appoint a successor Representative who will thereafter be a successor Representative hereunder. If there is not a Representative at any time, any obligation to provide notice to the Representative will be deemed satisfied if such notice is delivered to each of the Indemnifying Parties at their addresses last known to Parent, which will be the addresses set forth in the Closing Statement unless Representative provides notice to Parent of any different address in the manner described in Section 8.3.
(d) All expenses, if any, incurred by the Representative in connection with the performance of its duties as the Representative (the “Representative Expenses”) will be borne and paid by the Indemnifying Parties. No bond will be required of the Representative, and the Representative will not receive any compensation for its services. The Representative will also be entitled to advances against Representative Expenses from the Representative Fund, in the judgment and discretion of the Representative.
(eb) The Representative will shall not be liable to any Indemnifying Party for any act done or omitted hereunder as the Representative while acting in good faith and any in the exercise of reasonable judgment. Any act done or omitted in accordance with pursuant to the advice of counsel or other expert will shall be conclusive evidence that the Representative acted in good faith and in the exercise of such good faithreasonable judgment. The Indemnifying Parties will jointly and severally Company Stockholders shall indemnify the Representative and hold the Representative harmless against any Losses loss, liability or expense incurred without gross negligence or bad faith on the part of the Representative and arising out of or in connection with the acceptance or administration of the Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Representative, and any fees and expenses incurred by the Representative in connection with the performance of his duties under this Agreement or the Escrow Agreement (“Representative Expenses”). If not paid directly by the Company Stockholders, any Representative Expenses may be (i) withdrawn by the Representative from the Representative Escrow Fund, or (ii) following the Expiration Date and the satisfaction of all claims made by Indemnified Parties for Losses, recovered from the Escrow Fund prior to any distribution to the Company Stockholders; provided that prior to any such distribution pursuant to clause (ii) of this sentence, the Representative shall deliver to the Escrow Agent a certificate setting forth the Representative Expenses actually incurred and not previously satisfied from the Representative Escrow Fund; provided, further, that while this section allows the Representative to be paid from the Representative Escrow Fund, it does not relieve the Company Stockholders from their obligation to promptly pay such losses, liabilities or expenses, nor does it prevent the Representative from seeking any remedies available to it at law or otherwise.
(fc) The Company shall deliver to the Representative will have reasonable access to information about a copy of (i) the Surviving Company Information Statement; (ii) the Spreadsheet; and the reasonable assistance of (iii) the Company’s former officers and employees for purposes of performing the Representative’s duties and exercising the Representative’s rights hereunder, except that no Indemnified Person will be required to provide any information that is subject to a legal privilege or a protective Order or the disclosure of which would violate any Laws. The Representative will treat confidentially and not use or disclose the terms of this Agreement, any Related Agreement or any nonpublic information from or about Parent, Surviving Company or any Indemnified Person to anyone, except that the Representative may disclose the terms or information to the Indemnifying Parties or the Representative’s employees, attorneys, accountants, financial advisors, agents or authorized representatives on a need-to-know basis, as long as the Person agrees to treat such information confidentially. If requested by Parent, the Representative will enter into a separate confidentiality agreement before being provided access to such informationClosing Working Capital Statement.
(g) The initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended by this Agreement, and agrees to act as the Representative and to discharge the duties and responsibilities of the Representative pursuant to the terms of this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Harmonic Inc)
Representative. (a) At In order to administer the Effective Timetransactions contemplated by this Agreement and the Escrow Agreement, Vista will be constituted including the indemnification obligations of the Company Shareholders under this Article X, the Company Shareholders hereby designate and appointed as the Representative. Each Indemnifying Party hereby irrevocably appoints appoint the Representative for purposes of this Agreement and the Escrow Agreement and as the agent, proxy and attorneyattorneys-in-fact for such Indemnifying Party for all purposes of this Agreement, including full powers and authority on such Indemnifying Party’s behalf to (1) consummate the Transactions, (2) enter into the Escrow Agreement, (3) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the other Transactions; (4) pay expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (5) disburse any funds received hereunder to such Indemnifying Party and each other Indemnifying Party, (6) authorize deliveries to Parent of cash or other property from the Escrow Fund and legally bind each Indemnifying Party to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (7) object to such claims in accordance with Section 7.7; (8) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (9) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance, and (10) subject to Section 6.3, execute agent for and on behalf of each Indemnifying Party any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages). This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Party or by operation of Law, whether by the death or incapacity of any Indemnifying Party or the occurrence of any other eventCompany Shareholder, and any action taken by the Representative will be accepts such appointment as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Party or the Representative will have received any notice thereofRepresentative.
(b) The Company Shareholders hereby authorize the Representative will be to represent the sole and exclusive means of asserting or addressing any of the aboveCompany Shareholders, and no Indemnifying Party will have any right to act on its own behalf their successors, with respect to any such matters, other than any claim or dispute against the Representative. Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Representative that is within the scope of the Representative’s authority pursuant to Section 7.11(a) (a “Representative’s Decision”) will constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all Indemnifying Parties and will be final, binding and conclusive upon each of them. Each Indemnified Person matters arising under this Agreement and the Escrow Agent will Agreement, including without limitation, (i) to take all action necessary in connection with the indemnification obligations of the Company Shareholders under this Article X, including the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be entitled given by or to rely upon any Representative’s Decision as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Indemnifying Party. Each Indemnified Person Company Shareholder under this Agreement and the Escrow Agent are unconditionally Agreement, (iii) to execute the Escrow Agreement for and irrevocably relieved from on behalf of the Company Shareholders and (iv) to take any liability and all additional action as is contemplated to any Person for any acts done be taken by them in accordance with any Representative’s Decision. A notice or on behalf of the Company Shareholders by Parent to the Representative will constitute a notice pursuant to each of this Agreement and the Indemnifying PartiesEscrow Agreement.
(c) The agency of the Representative may be changed, and the Person serving as the Representative may be replaced from time to time, by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties upon not less than ten days’ prior written notice to Parent. A vacancy in the position of the Representative may be filled by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties. If the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnifying Parties, other than the Representative, representing a majority of the Aggregate Escrow Funding Percentage of all Indemnifying Parties, other than the Representative, will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and the Representative will serve until such successor is duly appointed and qualified to act hereunder. In the event of a vacancy in the position of the Representative, or refusal or incapability of that the Representative dies, becomes unable to serveperform his responsibilities as Representative or resigns from such position, which continues for more the Company Shareholders having an aggregate Ownership Percentage Interest greater than 90 days, Parent may appoint a successor 50% shall select another representative to fill such vacancy and such substituted Representative who will thereafter shall be a successor Representative hereunder. If there is not a Representative at any time, any obligation deemed to provide notice to be the Representative will be deemed satisfied if such notice is delivered to each for all purposes of this Agreement and the Indemnifying Parties at their addresses last known to Parent, which will be the addresses set forth in the Closing Statement unless Representative provides notice to Parent of any different address in the manner described in Section 8.3Escrow Agreement.
(d) All expensesdecisions and actions by the Representative, if anyincluding without limitation any agreement between the Representative and the Buyer or the Escrow Agent relating to indemnification obligations of the Company Shareholders under this Article X, incurred including the defense or settlement of any claims and the making of payments with respect hereto, shall be binding upon all of the Company Shareholders, and no Company Shareholders shall have the right to object, dissent, protest or otherwise contest the same. The Representative shall incur no liability to the Company Shareholders with respect to any action taken or suffered by the Representative in connection reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the performance of its duties as the Representative (the “Representative Expenses”) will be borne and paid by the Indemnifying Parties. No bond will be required indemnification obligations of the RepresentativeCompany Shareholders under this Article X, including the defense or settlement of any claims and the Representative will not receive any compensation for its servicesmaking of payments with respect thereto, except to the extent resulting from the Representative's own willful misconduct or gross negligence. The Representative will also be entitled to advances against Representative Expenses from the Representative Fundmay, in all questions arising under this Agreement or the judgment Escrow Agreement rely on the advice of counsel, and discretion of the Representative.
(e) The Representative will shall not be liable to any Indemnifying Party the Company Shareholders for any act done anything done, omitted or omitted hereunder as the Representative while acting suffered in good faith and any act done or omitted in accordance with by the advice of counsel or other expert will be conclusive evidence of such good faithRepresentative. The Indemnifying Parties will jointly and Company Shareholders shall severally indemnify the Representative and hold the Representative him or her harmless against any Losses loss, liability or expense incurred without gross negligence or bad faith on the part of the Representative and arising out of or in connection with the acceptance or administration of his or her duties hereunder.
(e) The Buyer and the Escrow Agent shall be able to rely conclusively on the instructions and decisions of the Representative with respect to the indemnification obligations of the Company Shareholders under this Article X, including the defense or settlement of any claims or the making of payments with respect thereto, or as to any other actions required or permitted to be taken by the Representative hereunder, and no party hereunder shall have any cause of action against the Buyer or the Escrow Agent to the extent the Buyer or the Escrow Agent has relied upon the instructions or decisions of the Representative’s duties hereunder.
(f) The Representative will have reasonable access to information about the Surviving Company Shareholders acknowledge and the reasonable assistance of the Company’s former officers and employees for purposes of performing the Representative’s duties and exercising the Representative’s rights hereunder, except that no Indemnified Person will be required to provide any information that is subject to a legal privilege or a protective Order or the disclosure of which would violate any Laws. The Representative will treat confidentially and not use or disclose the terms of this Agreement, any Related Agreement or any nonpublic information from or about Parent, Surviving Company or any Indemnified Person to anyone, except agree that the Representative may disclose incur costs and expenses on behalf of the terms or information Company Shareholders in his capacity as Representative ("Representative Expenses"). Each of the Company Shareholders agrees to reimburse the Representative for such costs and expenses incurred by the Representative out of the Escrow Amount, promptly upon demand by the Representative therefore. The amount to be paid by each such Company Shareholder shall be equal to the Indemnifying Parties or the Representative’s employees, attorneys, accountants, financial advisors, agents or authorized representatives on a need-to-know basis, as long as the Person agrees to treat such information confidentially. If requested by Parent, the Representative will enter into a separate confidentiality agreement before being provided access to such information.
(g) The initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended by this Agreement, and agrees to act as the Representative and to discharge the duties and responsibilities product of the amount of such Representative Expenses multiplied by such Company Shareholder's Ownership Percentage Interest; provided, that, no Company Shareholder shall be required to pay, in the aggregate, Representative Expenses in an amount in excess of the value of such Company Shareholder's Ownership Percentage Interest in the Escrow Amount initially deposited in escrow pursuant to the terms of this AgreementSection 2.8.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Sycamore Networks Inc)
Representative. The Company and the GavelNet Stockholders, by virtue of their approval of this Agreement, will be deemed to have irrevocably constituted and appointed, Michael R. Haynes (a) At "REP▇▇▇▇▇▇▇▇▇▇▇"), ▇▇fective as of the Effective Time, Vista will be constituted as their true and appointed as the Representative. Each Indemnifying Party hereby irrevocably appoints the Representative as the agent, proxy lawful agent and attorney-in-fact for such Indemnifying Party for all purposes of this Agreement, including full powers and authority on such Indemnifying Party’s behalf to (1) consummate the Transactions, (2) enter into any agreement in connection with the transactions contemplated by this Agreement or any transaction contemplated by the Escrow Agreement, (3) to exercise all or any of the powers, authority and discretion conferred on him under either this Agreement or the Escrow Agreement, to waive any term and condition of any such agreement, to give and receive notices on their behalf and communications to be their exclusive representative with respect to any Action (defined below) arising with respect to any transaction contemplated by any such agreement, including, without limitation, the defense, settlement or from compromise of any Action for which Parent (on behalf of itself or any other Indemnified Person) relating Merger Sub may be entitled to this Agreement or any of indemnification and the other Transactions; (4) pay expenses (whether incurred on or after Representative agrees to act as, and to undertake the date hereof) incurred in connection with the negotiation duties and performance of this Agreement, (5) disburse any funds received hereunder to such Indemnifying Party and each other Indemnifying Party, (6) authorize deliveries to Parent of cash or other property from the Escrow Fund and legally bind each Indemnifying Party to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (7) object to such claims in accordance with Section 7.7; (8) consent or agree to, negotiate, enter into settlements and compromises responsibilities of, such agent and demand arbitration and comply with Orders with respect to, such claims; (9) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance, and (10) subject to Section 6.3, execute for and on behalf of each Indemnifying Party any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages)attorney-in-fact. This appointment of agency and this The power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Party or by operation of Law, whether by the death or incapacity of any Indemnifying Party or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Party or the Representative will have received any notice thereof.
(b) The Representative will be the sole and exclusive means of asserting or addressing any of the above, and no Indemnifying Party will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representativeis irrevocable. Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Representative that is within the scope of the Representative’s authority pursuant to Section 7.11(a) (a “Representative’s Decision”) will constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all Indemnifying Parties and will be final, binding and conclusive upon each of them. Each Indemnified Person and the Escrow Agent will be entitled to rely upon any Representative’s Decision as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Indemnifying Party. Each Indemnified Person and the Escrow Agent are unconditionally and irrevocably relieved from any liability to any Person for any acts done by them in accordance with any Representative’s Decision. A notice by Parent to the Representative will constitute a notice to each of the Indemnifying Parties.
(c) The agency of the Representative may be changed, and the Person serving as the Representative may be replaced from time to time, by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties upon not less than ten days’ prior written notice to Parent. A vacancy in the position of the Representative may be filled by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties. If the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnifying Parties, other than the Representative, representing a majority of the Aggregate Escrow Funding Percentage of all Indemnifying Parties, other than the Representative, will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and the Representative will serve until such successor is duly appointed and qualified to act hereunder. In the event of a vacancy in the position of the Representative, or refusal or incapability of the Representative to serve, which continues for more than 90 days, Parent may appoint a successor Representative who will thereafter be a successor Representative hereunder. If there is not a Representative at any time, any obligation to provide notice to the Representative will be deemed satisfied if such notice is delivered to each of the Indemnifying Parties at their addresses last known to Parent, which will be the addresses set forth in the Closing Statement unless Representative provides notice to Parent of any different address in the manner described in Section 8.3.
(d) All expenses, if any, incurred by the Representative in connection with the performance of its duties as the Representative (the “Representative Expenses”) will be borne and paid by the Indemnifying Parties. No bond will be required of the Representative, and the Representative will not receive any compensation for its services. The Representative will also be entitled to advances against Representative Expenses from the Representative Fund, in the judgment and discretion of the Representative.
(e) The Representative will not be liable to any Indemnifying Party for any act done action taken or omitted hereunder as not taken by him in connection with his obligations under this Agreement in the absence of his own gross negligence or willful misconduct. If the Representative while acting shall be unable or unwilling to serve in good faith such capacity, his successor, who will serve and any act done or omitted in accordance with exercise the advice of counsel or other expert will be conclusive evidence of such good faith. The Indemnifying Parties will jointly and severally indemnify the Representative and hold the Representative harmless against any Losses incurred without bad faith on the part powers of the Representative and arising out of or in connection with the acceptance or administration hereunder, will be named by those persons holding a majority of the Representative’s duties hereunder.
(f) The Representative will have reasonable access to information about shares of Seller Capital Stock. For the Surviving Company and the reasonable assistance of the Company’s former officers and employees for purposes of performing the Representative’s duties and exercising the Representative’s rights hereunder, except that no Indemnified Person will be required to provide any information that is subject to a legal privilege or a protective Order or the disclosure of which would violate any Laws. The Representative will treat confidentially and not use or disclose the terms of this Agreement, "Action" means any Related Agreement action, complaint, petition, investigation, suit or other proceeding, whether civil or criminal, in law or in equity, or before any nonpublic information from arbitrator or about Parent, Surviving Company or any Indemnified Person to anyone, except that the Representative may disclose the terms or information to the Indemnifying Parties or the Representative’s employees, attorneys, accountants, financial advisors, agents or authorized representatives on a need-to-know basis, as long as the Person agrees to treat such information confidentiallyGovernmental Entity. If requested by Parent, the Representative will enter into a separate confidentiality agreement before being provided access to such information.
(g) The initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended by this Agreement, and agrees to act as the Representative and to discharge the duties and responsibilities of the Representative pursuant to the terms of this Agreement.***REORGANIZATION AGREEMENT*** -54-
Appears in 1 contract
Representative. (a) At Subject to the Effective Timeterms and conditions of this Section 10.19, Vista will be constituted and appointed ▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund VII, L.P. is designated as the Representative. Each Indemnifying Party hereby irrevocably appoints the Representative as the agent, proxy and attorney-in-fact for such Indemnifying Party for all purposes of this Agreement, including full powers and authority on such Indemnifying Party’s behalf to (1) consummate the Transactions, (2) enter into the Escrow Agreement, (3) give and receive notices and communications to or from Parent (act on behalf of itself or any other Indemnified Person) relating to the Stockholders and Optionholders for certain limited purposes, as specified herein. Approval of this Agreement or any by the Stockholders holding a majority of the other Transactions; outstanding Common Stock will, to the maximum extent permitted under applicable Law (4) pay expenses (whether incurred on or after including DGCL § 251(b)), constitute knowing and irrevocable ratification and approval of such designation by the date hereof) incurred in connection with Stockholders and the negotiation and performance of this Agreement, (5) disburse any funds received hereunder to such Indemnifying Party and each other Indemnifying Party, (6) authorize deliveries to Parent of cash or other property from the Escrow Fund and legally bind each Indemnifying Party to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (7) object to such claims in accordance with Section 7.7; (8) consent or agree to, negotiate, enter into settlements and compromises ofOptionholders, and demand arbitration and comply with Orders with respect to, such claims; (9) take all actions necessary or appropriate in the judgment authorization of the Representative for to serve in such capacity (including the accomplishment of the foregoing, in each case without having exclusive power to seek negotiate and settle any and all disputes with Buyer or obtain the consent of any Person Merger Sub under any circumstance, and (10) subject to Section 6.3, execute for and on behalf of each Indemnifying Party any amendment to this Agreement, the Escrow Agreement or any exhibitthe Paying Agent Agreement) and will also constitute a reaffirmation, annex or schedule hereto or thereto approval, consent to, acceptance and adoption of, and an agreement to comply with and perform, all of the acknowledgments, waivers, releases, covenants and agreements made by the Representative on behalf of the Stockholders and Optionholders in this Agreement and the other documents delivered in connection herewith (including for the purpose Escrow Agreement and the Paying Agent Agreement), in each case, whether entered into or taken before, on or after the date of amending addresses or sharing percentagessuch approval. The Representative may resign at any time and may be removed only by the vote of Persons that collectively owned more than 50% of the Common Stock as of immediately prior to the Effective Time (other than (x) shares of Common Stock cancelled pursuant to Section 1.04(c) and (y) Dissenting Shares) (such Persons, the "Majority Holders"). This appointment The designation of agency and this power of attorney the Representative is coupled with an interest and will be interest, and, except as set forth in the immediately preceding sentence with respect to the resignation or removal of the Representative, such designation is irrevocable and will not be terminated by any Indemnifying Party or by operation of Law, whether affected by the death death, incapacity, illness, bankruptcy, dissolution or incapacity other inability to act of any Indemnifying Party of the Stockholders or Optionholders. In the occurrence event that a Representative has resigned or been removed in accordance with this Section 10.19(a), a new Representative will be appointed by the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Representative. Written notice of any other eventsuch resignation, and any action taken removal, or appointment of a Representative will be delivered by the Representative will be as valid as if to Buyer promptly after such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Party or the Representative will have received any notice thereofaction is taken.
(b) The Representative will be have such powers and authority as are necessary or appropriate to carry out the sole functions assigned to it under this Agreement and exclusive means of asserting or addressing in any of other document delivered in connection herewith (including the aboveEscrow Agreement and the Paying Agent Agreement); provided, and no Indemnifying Party however, that the Representative will have any right no obligation to act on its own behalf with respect to any such matters, other than any claim of the Stockholders or dispute against the RepresentativeOptionholders. Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction ofThe Company, the Representative that is within Surviving Corporation, Buyer, Merger Sub, the scope of Escrow Agent, the Representative’s authority pursuant to Section 7.11(a) (a “Representative’s Decision”) will constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all Indemnifying Parties and will be final, binding and conclusive upon each of them. Each Indemnified Person Paying Agent and the Escrow Agent Firm will be entitled to rely upon any Representative’s Decision as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Indemnifying Party. Each Indemnified Person and on the Escrow Agent are unconditionally and irrevocably relieved from any liability to any Person for any acts done actions taken by them in accordance with any Representative’s Decision. A notice by Parent to the Representative will constitute a notice to each of without independent inquiry into the Indemnifying Parties.
(c) The agency of the Representative may be changed, and the Person serving as the Representative may be replaced from time to time, by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties upon not less than ten days’ prior written notice to Parent. A vacancy in the position of the Representative may be filled by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties. If the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnifying Parties, other than the Representative, representing a majority of the Aggregate Escrow Funding Percentage of all Indemnifying Parties, other than the Representative, will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and the Representative will serve until such successor is duly appointed and qualified to act hereunder. In the event of a vacancy in the position of the Representative, or refusal or incapability capacity of the Representative to serveso act. All actions, which continues for more than 90 daysnotices, Parent may appoint a successor communications and determinations by the Representative who to carry out such functions will thereafter conclusively be a successor deemed to have been authorized by, and will be binding upon, the Stockholders and Optionholders. Neither the Representative, nor any of its officers, directors, employees, partners (general or limited), members, managers, or Advisors will have any liability to Buyer, Merger Sub, the Company, the Surviving Corporation, the Stockholders or Optionholders, or any of their respective Affiliates, or any Person acting on behalf of the foregoing, with respect to actions taken, or omitted to be taken, by the Representative hereunder. If there is not a Representative at any timein such capacity (or its officers, any obligation to provide notice to directors, employees, partners (general or limited), members, managers, or Advisors in connection therewith), except the Representative will be deemed satisfied if such notice is delivered to each of the Indemnifying Parties at their addresses last known to Parent, which will be the addresses set forth in the Closing Statement unless Representative provides notice to Parent of any different address in the manner described in Section 8.3.
(d) All expenses, if any, incurred by the Representative in connection with the performance of its duties as the Representative (the “Representative Expenses”) will be borne and paid by the Indemnifying Parties. No bond will be required of the Representative, and the Representative will not receive any compensation liable for its serviceswillful misconduct and actual fraud as finally determined by a court of competent jurisdiction from which no further appeal may be taken. The Representative will also be entitled to advances against Representative Expenses from the Representative Fund, engage such Advisors as it will deem necessary in connection with exercising its powers and performing its functions hereunder and (in the judgment and discretion absence of the Representative.
(e) The Representative will not be liable to any Indemnifying Party for any act done or omitted hereunder as the Representative while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert will be conclusive evidence of such good faith. The Indemnifying Parties will jointly and severally indemnify the Representative and hold the Representative harmless against any Losses incurred without bad faith on the part of the Representative) will be entitled to conclusively rely on the opinions and advice of such Persons in all matters. The Representative (for itself, and for its officers, directors, employees, partners (general or limited), members, managers, Advisors) will be entitled to full reimbursement for all reasonable expenses, disbursements and advances (including fees and disbursements of its Advisors) incurred by or on behalf of the Representative in such capacity (or any of its officers, directors, employees, partners (general or limited), members, managers, or Advisors in connection therewith), and to full indemnification against any liabilities, losses, damages, obligations, costs or expenses arising out of actions taken or omitted to be taken in its capacity as Representative (except for those arising out of the Representative's willful misconduct and actual fraud as finally determined by a court of competent jurisdiction from which no further appeal may be taken), including the costs and expenses of investigation, defense, settlement or adjudication of any Legal Proceeding, from the Stockholders and the Optionholders (including from funds paid to the Representative under this Agreement and/or otherwise received by it in its capacity as the Representative, or funds to be distributed to the Stockholders or Optionholders under this Agreement at its direction, pursuant to or in connection with this Agreement (including under the acceptance or administration Escrow Agreement and Paying Agent Agreement)) and all payments required to be made under Article I are expressly subject to this Section 10.19(b). Each Stockholder and Optionholder will be responsible for its pro rata portion of any amount owed to the Representative in accordance with this Section 10.19(b) based upon the pro rata portion of the Representative’s duties hereunder.
(f) The Representative will have reasonable access Aggregate Fully-Diluted Common Shares held by such Stockholder or Optionholder immediately prior to information about the Surviving Company and the reasonable assistance Closing. In furtherance of the Company’s former officers and employees for purposes of performing the Representative’s duties and exercising the Representative’s rights hereunderforegoing, except that no Indemnified Person will be required to provide any information that is subject to a legal privilege or a protective Order or the disclosure of which would violate any Laws. The Representative will treat confidentially and not use or disclose the terms of notwithstanding anything in this Agreement, any Related Agreement or any nonpublic information from or about Parent, Surviving Company or any Indemnified Person to anyone, except that the Representative may disclose the terms or information to the Indemnifying Parties or the Representative’s employees, attorneys, accountants, financial advisors, agents or authorized representatives on a need-to-know basis, as long as the Person agrees to treat such information confidentially. If requested by Parentcontrary, the Representative will enter into have the power and authority to set aside and retain additional funds paid to or received by it, or direct payment of additional funds to be paid to the Stockholders or Optionholders as Merger Consideration pursuant to this Agreement at Closing or thereafter (including to establish such reserves as the Representative determines in good faith to be appropriate for such costs and expenses that are not then known or determinable). The relationship created herein is not to be construed as a separate confidentiality agreement before being provided access joint venture or any form of partnership between or among the Representative or any Stockholder or Optionholder for any purpose of U.S. federal or state Law, including federal, state or foreign income Tax purposes. Neither the Representative nor any of its Affiliates owes any fiduciary or other duty to such informationany Stockholder or Optionholder.
(gc) The initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended by this AgreementEach Buyer Party (on its own behalf, and agrees on behalf of the Buyer Group) and the Company acknowledge that the Representative is a party to act this Agreement solely for the purpose of serving as the "Representative" hereunder, and no Legal Proceeding will be brought by, or on behalf of, any Buyer Party or the Buyer Group (including, after the Effective Time, the Surviving Corporation and its Subsidiaries) against the Representative and with respect to discharge this Agreement or the duties and responsibilities Transactions, or any statement, certificate, instruction, opinion, instrument or other documents delivered hereunder (with it being understood that any covenant or agreement of or by the "parties" or "each of the parties" will not be deemed to require performance by, or be an agreement of, the Representative pursuant to unless performance by the terms of this AgreementRepresentative is expressly provided for in such covenant or the Representative expressly so agrees in writing).
Appears in 1 contract
Representative. (a) At the Effective Time, Vista ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ will be constituted and appointed as the Representative, and the Representative hereby accepts such appointment. Each Indemnifying Party hereby irrevocably appoints Securityholder and Indemnifying Founders, by virtue of its adoption of this Agreement and approval of the Merger, will be deemed to have appointed and constituted the Representative as the agent, proxy their agent and true and lawful attorney-in-fact for such Indemnifying Party for all purposes of this Agreement, including full with the powers and authority as set forth in this Agreement. All such actions of the Representative taken in accordance with this Section 7.16 shall be deemed to be facts ascertainable outside the merger agreement and shall be binding on such the Indemnifying Party’s Securityholders. The Representative will be the exclusive agent for and on behalf of the Indemnifying Securityholders and Indemnifying Founders to (1) consummate the Transactions, (2) enter into the Escrow Agreement, ; (32) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Person) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the other documents contemplated by the Transactions; (4) pay expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (5) disburse any funds received hereunder to such Indemnifying Party and each other Indemnifying Party, (63) authorize deliveries to Parent of cash or other property from the Escrow Fund Funds and legally bind each Indemnifying Party Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (74) object to such claims in accordance with Section 7.77.6 and Section 7.13; (8) 5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (96) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance, and ; (107) subject to Section 6.3, execute for and on behalf of each Indemnifying Party Securityholder and Indemnifying Founder any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages), (8) enter into any waiver or extension pursuant to Section 6.4 and (9) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance with the terms of the Escrow Agreement. The Representative will be the sole and exclusive means of asserting or addressing any of the above on behalf of the Indemnifying Securityholders and Indemnifying Founders, and no Indemnifying Securityholder or Indemnifying Founder will have any right to act on its own 76 behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Party Securityholder or Indemnifying Founder or by operation of Law, whether by the death or incapacity of any Indemnifying Party Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Party Securityholder, Indemnifying Founder or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with General Liability Claims will be borne and paid by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (the “General Representative Expenses”). All reasonable expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will have the right to recover General Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Period, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses shall be recovered from the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicable.
(b) The Representative will be the sole and exclusive means of asserting or addressing any of the above, and no Indemnifying Party will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Representative that is within the scope of the Representative’s authority pursuant to Section 7.11(a) (a “Representative’s Decision”) will constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all Indemnifying Parties and will be final, binding and conclusive upon each of them. Each Indemnified Person and the Escrow Agent will be entitled to rely upon any Representative’s Decision as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Indemnifying Party. Each Indemnified Person and the Escrow Agent are unconditionally and irrevocably relieved from any liability to any Person for any acts done by them in accordance with any Representative’s Decision. A notice by Parent to the Representative will constitute a notice to each of the Indemnifying Parties.
(c) The agency of the Representative may be changed, and the Person serving as the Representative may be replaced from time to time, time by the vote or consent holders of Indemnifying Parties representing a majority in interest of the Aggregate cash then on deposit in the General Escrow Funding Percentages of all Indemnifying Parties Fund upon not less than ten days’ prior written notice to Parent. The agency of the Representative may be changed only when the Person serving as the Representative is replaced pursuant to the preceding sentence. A vacancy in the position of the Representative may be filled by the vote or consent holders of Indemnifying Parties representing a majority in interest of the Aggregate cash then on deposit in the General Escrow Funding Percentages of all Indemnifying PartiesFund. If 77 the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnifying Parties, other than the Representative, representing a majority of the Aggregate Escrow Funding Percentage of all Indemnifying Parties, other than the Representative, Securityholders will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and the Representative will serve until such successor is duly appointed and qualified to act hereunder. In the event of a vacancy in the position of the Representative, or refusal or incapability of the Representative to serve, which continues for more than 90 days, Parent may appoint a successor Representative who will thereafter be a successor Representative hereunder. If there is not a Representative at any time, any obligation to provide notice to the Representative will be deemed satisfied if such notice is delivered to each of the Indemnifying Parties Securityholders or Indemnifying Founders, as applicable, at their addresses last known to Parent, which will be the addresses set forth in the Closing Statement unless Representative provides notice to Parent of any different address in the manner described in Section 8.3.
. (d) All expenses, if any, incurred by the Representative in connection with the performance of its duties as the Representative (the “Representative Expenses”) will be borne and paid by the Indemnifying Parties. No bond will be required of the Representative, and the Representative will not receive any compensation for its services. The Representative will also be entitled to advances against Representative Expenses from the Representative Fund, in the judgment and discretion of the Representative.
(ec) The Representative will not be liable to any Indemnifying Party Securityholder or Indemnifying Founder for any act done or omitted hereunder as in connection with the Representative Representative’s services under this Agreement or the Escrow Agreement while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert will be conclusive evidence of such good faith. The Indemnifying Parties Securityholders and Indemnifying Founders, as applicable, will severally, but not jointly and severally (based on their respective Aggregate Escrow Funding Percentage or Unit Litigation Funding Percentage, as applicable, compared to the total Aggregate Escrow Funding Percentage or Unit Litigation Funding Percentage of all of the Indemnifying Securityholders or Indemnifying Founders, respectively), indemnify the Representative from and hold the Representative harmless against any Losses incurred without bad faith on and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the part reasonable fees and expenses of the counsel and experts and their staffs and all reasonable expense of document location, duplication and shipment) (collectively, “Representative and Losses”) arising out of or in connection with the acceptance Representative’s execution and performance of this Agreement and the Escrow Agreement, in each case in such person’s capacity as the Representative only, and as such Representative Loss is suffered or administration incurred; provided, that in the event that any such Representative Loss or any portion of a Representative Loss is finally adjudicated to have been directly caused by the gross negligence or bad faith of the Representative’s duties hereunder.
, the Representative will promptly reimburse the Indemnifying Securityholders or the Indemnifying Founders, as applicable, the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or bad faith. With respect to General Liability Claims, if not paid directly to the Representative by the Indemnifying Securityholders, any such Representative Losses may be recovered by the Representative from (fi) the funds in the Representative Fund and (ii) the amounts in the General Escrow Fund at such time as remaining amounts in the General Escrow Fund would otherwise be distributable to the Indemnifying Securityholders. With respect to Litigation Liability Claims, if not paid directly to the Representative by the Indemnifying Founders, any such Representative Losses may be recovered by the Representative from the amounts in the Litigation Escrow Fund at such time as remaining amounts in the Litigation Escrow Fund would otherwise be distributable to the Indemnifying Founders. Notwithstanding the foregoing, while this section allows the Representative to be paid from the Representative Fund and the Escrow Funds, this does not relieve the Indemnifying Securityholders or Indemnifying Founders, as applicable, from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Representative from seeking any remedies available to it at law or otherwise. In no event will the Representative be required to advance its own funds on behalf of the Indemnifying Securityholders, Indemnifying Founders or otherwise. The Indemnifying Securityholders and Indemnifying Founders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Representative or the termination of this Agreement. 78 (d) The Representative will have reasonable access to information about the Surviving Company Entity and its then current officers and employees, as well as the reasonable assistance of the Company’s former officers and employees for purposes of performing the Representative’s its duties and exercising the Representative’s its rights hereunder, except ; provided that no Indemnified Person will be required to provide any information that is subject to a legal privilege or a protective Order or the disclosure of which would violate any Laws. The Representative will treat confidentially and not use or disclose the terms of this Agreement, any Related Agreement or any nonpublic information from or about Parent, Surviving Company Entity, or any Indemnified Person to anyone, anyone (except that the Representative may disclose the terms or information to the Indemnifying Parties Securityholders, Indemnifying Founders or the Representative’s employees, attorneys, accountants, financial advisors, agents advisors or authorized representatives on a need-to-need to know basis, as long as the Person agrees in each case who agree to treat such information confidentially. If requested ), provided, however, that neither Parent nor the Surviving Entity will be obligated to provide such access or information if it determines, in its reasonable judgment, that doing so would violate applicable Law or any Contract to which Parent, the Surviving Entity or any of their Affiliates is a party or obligation of confidentiality owed by Parent, the Surviving Entity or any of their Affiliates to a third party, jeopardize the protection of attorney-client privilege or any rights of Parent or any Indemnified Person under the work-product doctrine or expose Parent or the Surviving Entity to risk of liability for disclosure of sensitive or personally identifiable information. The Representative will enter into a separate confidentiality agreement before prior to being provided access to such informationinformation if requested by Parent. Notwithstanding anything in this Agreement to the contrary, any pre-Closing attorney-client privileged communications of the Company and its Subsidiaries that summarize, describe or refer to the Transactions or to negotiations relating to the Transactions (including all emails, correspondence, invoices, recordings and other documents or files, evidencing or reflecting communications between the Company, its Subsidiaries and their respective counsel, and all files maintained by the Company’s or any of its Subsidiaries’ law firm or legal counsel ) (the “Communications”) will not become attorney-client privileged communications of the Surviving Entity, but will instead become attorney-client privileged Communications of the Representative; provided, however, that in the case of any good faith allegation of fraud perpetrated by the Company or its representatives in connection with the Transactions or negotiations relating to the Transactions, the Representative hereby agrees to waive the attorney client privilege with respect to any attorney client communications received or sent by any of ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ that would reflect Knowledge of the Company or information Known to the Company relating to such allegation. The Representative will cause all Communications stored on the Company’s servers prior to the Closing to be preserved.
(ge) The Representative shall (i) reasonably inform each Indemnifying Securityholder of all material actions taken in its capacity as the Representative with respect to all material matters arising under or with respect to this Agreement, (ii) not take any action in its capacity as the Representative that materially adversely affects the rights or obligations of any Indemnifying Securityholder in any manner materially different from the other Indemnifying Securityholders without the prior written consent of such Indemnifying Securityholder, and (iii) shall not take any action in its capacity as the Representative (to the extent the Representative has any authority to do so) to amend, waive or otherwise modify any provision of the Joinder Agreement with the Insight Unitholders and Accel Unitholders, the last sentence of Section 1.5(a) or Section 1.4(h) without the prior written consent of the Indemnifying Securityholder(s) party thereto or effected thereby, as the case may be. 79 (f) By its signature to this Agreement, the initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended by this Agreement, and agrees to act as the Representative and to discharge the duties and responsibilities of the Representative pursuant to the terms of this Agreement.
Appears in 1 contract
Sources: Merger Agreement
Representative. (a) At Mich▇▇▇ ▇. ▇▇▇▇ ▇▇▇ll, by virtue of the Effective TimeMerger and the resolutions to be adopted by the Shareholders, Vista will be constituted and irrevocably appointed as the Representative. Each Indemnifying Party hereby irrevocably appoints the Representative as the agent, proxy and attorney-in-fact for such Indemnifying Party for all purposes of this Agreementand authorized and empowered to act, including full powers and authority on such Indemnifying Party’s behalf to (1) consummate the Transactions, (2) enter into the Escrow Agreement, (3) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Person) relating to this Agreement or any of the other Transactions; (4) pay expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (5) disburse any funds received hereunder to such Indemnifying Party and each other Indemnifying Party, (6) authorize deliveries to Parent of cash or other property from the Escrow Fund and legally bind each Indemnifying Party to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (7) object to such claims in accordance with Section 7.7; (8) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (9) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance, and (10) subject to Section 6.3, execute for and on behalf of each Indemnifying Party any amendment or all of the Shareholders (with full power of substitution in the premises) in connection with the indemnity provisions of Article 11 as they relate to the Shareholders generally, the Escrow Agreement, the notice provision of this Agreement, and such other matters as are reasonably necessary for the consummation of the Transactions including, without limitation, to act as the representative of such Shareholders to review and authorize all set-offs, claims and other payments authorized or directed by the Escrow Agreement and dispute or question the accuracy thereof, to compromise on their behalf with Compuware any claims asserted thereunder and to authorize payments to be made with respect thereto and to take such further actions as are authorized in this Agreement (the above named representative, as well as any subsequent representative of such Shareholders appointed by him or, after his death or incapacity, elected by vote of holders of a majority of the shares Compuware Stock received by such Shareholders pursuant to the Merger, being referred to herein as the "Representative"). The Representative shall not be liable, in his capacity as representative of such Shareholders, to any Shareholders and their respective affiliates or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages). This appointment of agency and this power of attorney is coupled other person with an interest and will be irrevocable and will not be terminated by any Indemnifying Party or by operation of Law, whether by the death or incapacity of any Indemnifying Party or the occurrence of any other event, and respect to any action taken or omitted to be taken by the Representative will be as valid as if such death, incapacity under or other event had not occurred, regardless of whether or not any Indemnifying Party or the Representative will have received any notice thereof.
(b) The Representative will be the sole and exclusive means of asserting or addressing any of the above, and no Indemnifying Party will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Representative that is within the scope of the Representative’s authority pursuant to Section 7.11(a) (a “Representative’s Decision”) will constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all Indemnifying Parties and will be final, binding and conclusive upon each of them. Each Indemnified Person and the Escrow Agent will be entitled to rely upon any Representative’s Decision as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Indemnifying Party. Each Indemnified Person and the Escrow Agent are unconditionally and irrevocably relieved from any liability to any Person for any acts done by them in accordance with any Representative’s Decision. A notice by Parent to the Representative will constitute a notice to each of the Indemnifying Parties.
(c) The agency of the Representative may be changed, and the Person serving as the Representative may be replaced from time to time, by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties upon not less than ten days’ prior written notice to Parent. A vacancy in the position of the Representative may be filled by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties. If the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnifying Parties, other than the Representative, representing a majority of the Aggregate Escrow Funding Percentage of all Indemnifying Parties, other than the Representative, will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and the Representative will serve until such successor is duly appointed and qualified to act hereunder. In the event of a vacancy in the position of the Representative, or refusal or incapability of the Representative to serve, which continues for more than 90 days, Parent may appoint a successor Representative who will thereafter be a successor Representative hereunder. If there is not a Representative at any time, any obligation to provide notice to the Representative will be deemed satisfied if such notice is delivered to each of the Indemnifying Parties at their addresses last known to Parent, which will be the addresses set forth in the Closing Statement unless Representative provides notice to Parent of any different address in the manner described in Section 8.3.
(d) All expenses, if any, incurred by the Representative in connection with this Agreement or the performance of its duties Escrow Agreement in his capacity as the Representative (the “Representative Expenses”) will be borne and paid by the Indemnifying Parties. No bond will be required of the Representative, and the Representative will not receive any compensation for its services. The Representative will also be entitled to advances against Representative Expenses from the Representative Fund, in the judgment and discretion of the Representative.
(e) The Representative will not be liable to any Indemnifying Party for any act done or omitted hereunder as the Representative while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert will be conclusive evidence representative of such good faith. The Indemnifying Parties will jointly and severally indemnify the Representative and hold the Representative harmless against any Losses incurred without Shareholders unless such action or omission results from or arises out of fraud, gross negligence, willful misconduct or bad faith on the part of the Representative. Compuware and the Surviving Corporations and each of their respective affiliates shall be entitled to rely on such appointment and treat such Representative as the duly appointed attorney-in-fact of each Shareholder. Each Shareholder who votes in favor of the Merger pursuant to the terms hereof, by such vote, without any further action, and arising out each Shareholder who receives any shares of or Compuware Stock in connection with the Merger, by acceptance or administration thereof and without any further action, confirms such appointment and authority and acknowledges and agrees that such appointment is irrevocable and coupled with an interest, it being understood that the willingness of Compuware to enter into this Agreement is based, in part, on the appointment of a representative to act on behalf of the Representative’s duties hereunderShareholders.
(f) The Representative will have reasonable access to information about the Surviving Company and the reasonable assistance of the Company’s former officers and employees for purposes of performing the Representative’s duties and exercising the Representative’s rights hereunder, except that no Indemnified Person will be required to provide any information that is subject to a legal privilege or a protective Order or the disclosure of which would violate any Laws. The Representative will treat confidentially and not use or disclose the terms of this Agreement, any Related Agreement or any nonpublic information from or about Parent, Surviving Company or any Indemnified Person to anyone, except that the Representative may disclose the terms or information to the Indemnifying Parties or the Representative’s employees, attorneys, accountants, financial advisors, agents or authorized representatives on a need-to-know basis, as long as the Person agrees to treat such information confidentially. If requested by Parent, the Representative will enter into a separate confidentiality agreement before being provided access to such information.
(g) The initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended by this Agreement, and agrees to act as the Representative and to discharge the duties and responsibilities of the Representative pursuant to the terms of this Agreement.
Appears in 1 contract
Representative. (a) At Subject to the Effective Timeterms and conditions of this Section 8.15, Vista will be constituted and appointed each Stockholder hereby designates Wain as the Representative. Each Indemnifying Party hereby irrevocably appoints the Representative as the agent, proxy and attorney-in-fact for such Indemnifying Party for all purposes of this Agreement, including full powers and authority on such Indemnifying Party’s behalf to (1) consummate the Transactions, (2) enter into the Escrow Agreement, (3) give and receive notices and communications to or from Parent (act on behalf of itself or any other Indemnified Person) relating to the Stockholders for certain limited purposes, as specified herein. Approval of this Agreement or any by the Stockholders holding a majority of the outstanding Common Stock will, to the maximum extent permitted under applicable Law, constitute knowing and irrevocable ratification and approval of such designation by the Stockholders, and authorization of the Representative to serve in such capacity (including the exclusive power to negotiate and settle any and all disputes with Buyer and Merger Sub under this Agreement), and will also constitute a reaffirmation, approval, consent to and acceptance and adoption of and an agreement to comply with and perform, all of the acknowledgments, waivers, releases, covenants and agreements made by the Representative on behalf of the Stockholders in this Agreement and the other Transactions; (4) pay expenses (Transaction Documents, in each case, whether incurred entered into or taken before, on or after the date hereofof such approval. The Representative may resign at any time and may be removed only by the vote of Persons that collectively owned more than 50% of the Common Stock as of immediately prior to the Effective Time (other than (i) incurred in connection with shares of Common Stock cancelled pursuant to Section 1.04(c) and (ii) Dissenting Shares) (such Persons, the negotiation and performance of this Agreement, (5) disburse any funds received hereunder to such Indemnifying Party and each other Indemnifying Party, (6) authorize deliveries to Parent of cash or other property from the Escrow Fund and legally bind each Indemnifying Party to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims“Majority Holders”); (7) object to such claims in accordance with Section 7.7; (8) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (9) take all actions necessary or appropriate in the judgment . The designation of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance, and (10) subject to Section 6.3, execute for and on behalf of each Indemnifying Party any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages). This appointment of agency and this power of attorney is coupled with an interest and will be interest, and, except as set forth in the immediately preceding sentence with respect to the resignation or removal of the Representative, such designation is irrevocable and will not be terminated by any Indemnifying Party or by operation of Law, whether affected by the death death, incapacity, illness, bankruptcy, dissolution or incapacity other inability to act of any Indemnifying Party of the Stockholders. In the event that the Representative has resigned or been removed in accordance with this Section 8.15(a), a new Representative will be appointed by the occurrence Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Representative. Written notice of any other eventsuch resignation, and any action taken removal, or appointment of a Representative will be delivered by the Representative will to Buyer promptly after such action is taken. Buyer shall be as valid as if such death, incapacity or other event had not occurred, regardless entitled to rely upon the authority of whether or not any Indemnifying Party or the Representative will to act as the agent of the Stockholders. Any payment by Buyer to the Representative under this Agreement shall be considered a payment by Buyer to the Stockholders and Buyer shall have received no liability for any notice thereofclaim by any Stockholder that it did not receive the proper portion of such payment that such Stockholder was entitled to under this Agreement or otherwise.
(b) The Representative will be have such powers and authority as are necessary or appropriate to carry out the sole functions assigned to it under this Agreement and exclusive means of asserting or addressing any of other Transaction Document; provided, however, that the above, and no Indemnifying Party Representative will have any right no obligation to act on its own behalf with respect to any such matters, other than any claim or dispute against of the RepresentativeStockholders. Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction ofThe Company, the Representative that is within the scope of the Representative’s authority pursuant to Section 7.11(a) (a “Representative’s Decision”) will constitute a notice or communication to or bySurviving Corporation, or a decisionB▇▇▇▇ and Merger Sub, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all Indemnifying Parties and will be final, binding and conclusive upon each of them. Each Indemnified Person and the Escrow Agent will be entitled to rely upon any Representative’s Decision as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Indemnifying Party. Each Indemnified Person and on the Escrow Agent are unconditionally and irrevocably relieved from any liability to any Person for any acts done actions taken by them in accordance with any Representative’s Decision. A notice by Parent to the Representative will constitute a notice to each of without independent inquiry into the Indemnifying Parties.
(c) The agency of the Representative may be changed, and the Person serving as the Representative may be replaced from time to time, by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties upon not less than ten days’ prior written notice to Parent. A vacancy in the position of the Representative may be filled by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties. If the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnifying Parties, other than the Representative, representing a majority of the Aggregate Escrow Funding Percentage of all Indemnifying Parties, other than the Representative, will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and the Representative will serve until such successor is duly appointed and qualified to act hereunder. In the event of a vacancy in the position of the Representative, or refusal or incapability capacity of the Representative to serveso act. All actions, which continues for more than 90 daysnotices, Parent may appoint a successor Representative who will thereafter be a successor Representative hereunder. If there is not a Representative at any time, any obligation to provide notice to communications and determinations by the Representative will conclusively be deemed satisfied if such notice is delivered to each have been authorized by, and will be binding upon, the Stockholders; provided that nothing herein shall permit the Representative to allocate or distribute or direct the allocation or distribution of any amount received in connection with this Agreement on behalf of the Indemnifying Parties at Stockholders other than in accordance with the terms of this Agreement and the terms of the securities held by the Stockholders immediately prior to the Effective Time. Neither the Representative, nor any of its Advisors will have any liability to Buyer, Merger Sub, the Company, the Surviving Corporation, the Stockholders or any of their addresses last known respective Affiliates, or any Person acting on behalf of the foregoing, with respect to Parentactions taken, which will or omitted to be the addresses set forth in the Closing Statement unless Representative provides notice to Parent of any different address in the manner described in Section 8.3.
(d) All expensestaken, if any, incurred by the Representative in such capacity (or its officers, directors, employees, partners (general or limited), members, managers, or Advisors in connection with the performance of its duties as therewith); provided that nothing herein shall relieve the Representative (the “Representative Expenses”) will be borne and paid by the Indemnifying Parties. No bond will be required of the Representative, and the Representative will not receive any compensation for from its servicesown gross negligence or willful misconduct. The Representative will also be entitled to advances against Representative Expenses from the Representative Fund, engage such Advisors as it deems necessary in connection with exercising its powers and performing its functions hereunder and (in the judgment and discretion absence of the Representative.
(e) The Representative will not be liable to any Indemnifying Party for any act done or omitted hereunder as the Representative while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert will be conclusive evidence of such good faith. The Indemnifying Parties will jointly and severally indemnify the Representative and hold the Representative harmless against any Losses incurred without bad faith on the part of the Representative) will be entitled to conclusively rely on the opinions and advice of such Persons in all matters.
(c) The Representative will be entitled to full reimbursement for all reasonable expenses, disbursements and advances (including fees and disbursements of its Advisors) incurred by or on behalf of the Representative in such capacity and to full indemnification against any Losses arising out of actions taken or omitted to be taken in its capacity as the Representative, including the costs and expenses of investigation, defense, settlement or adjudication of any Action by the Stockholders (including from funds paid to the Representative under this Agreement or otherwise received by it in its capacity as the Representative or funds to be distributed to the Stockholders under this Agreement at its direction, pursuant to or in connection with this Agreement) and all payments required to be made under Article I are expressly subject to this Section 8.15(c). Each Stockholder will be responsible for its pro rata portion of any amount owed to the acceptance or administration Representative in accordance with this Section 8.15(c) based upon the pro rata portion of the Representative’s duties Aggregate Fully-Diluted Common Shares held by such Stockholder immediately prior to the Closing. Notwithstanding anything to the contrary herein, the Representative shall not be entitled to any fees or other compensation in connection with serving as Representative hereunder. The relationship created herein is not to be construed as a joint venture or any form of partnership between or among the Representative or any Stockholder for any purpose of U.S. federal or state Law, including federal, state or foreign income Tax purposes. Neither the Representative nor any of its Affiliates owes any fiduciary or other duty to any Stockholder.
(fd) The Representative will have reasonable access to information about Each Buyer Party (on its own behalf, and on behalf of the Surviving Company Buyer Group), and the reasonable assistance of Company acknowledge that the Company’s former officers and employees Representative is party to this Agreement solely for purposes of performing serving as the “Representative’s duties and exercising the Representative’s rights ” hereunder, except that and no Indemnified Person action, suit, claim, investigation, or proceeding will be required to provide brought by, or on behalf of, any information that is subject to a legal privilege or a protective Order Buyer Party or the disclosure of which would violate any Laws. The Buyer Group (including, after the Effective Time, the Surviving Corporation and its Subsidiaries) against the Representative will treat confidentially and not use or disclose in its capacity as the terms of Representative with respect to this Agreement, any Related Agreement or any nonpublic information from or about Parentthe Transactions, Surviving Company or any Indemnified Person statement, certificate, instruction, opinion, instrument or other documents delivered hereunder (with it being understood that any covenant or agreement of or by the “parties” or “each of the parties” will not be deemed to anyonerequire performance by, except that the Representative may disclose the terms or information to the Indemnifying Parties or the Representative’s employees, attorneys, accountants, financial advisors, agents or authorized representatives on a need-to-know basis, as long as the Person agrees to treat such information confidentially. If requested by Parentbe an agreement of, the Representative will enter into a separate confidentiality agreement before being provided access to such information.
(g) The initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended unless performance by this Agreement, and agrees to act as the Representative and to discharge the duties and responsibilities of is expressly provided for in such covenant or the Representative pursuant to the terms of this Agreementexpressly so agrees in writing).
Appears in 1 contract
Sources: Merger Agreement (Sugarfina Corp)
Representative. 13.1. Notwithstanding any statement to the contrary contained herein, each Holder irrevocably authorizes and appoints ▇. ▇▇▇▇▇ Lodge III or his/its successor appointed pursuant to this SECTION 13 (athe "REPRESENTATIVE") At as its true and lawful attorney and representative with full power and authority to take any and all actions and execute any and all documents and agreements in such Person's name, place and stead, with the Effective Timesame effect as if such action were taken or such document or agreement were executed by such Person, Vista will be constituted in connection with any matter or thing relating to any provision of this Agreement that states that the Representative shall act or execute and appointed ▇. ▇▇▇▇▇ Lodge III hereby accepts his/its appointment as the RepresentativeRepresentative and agrees to perform all of the duties of the Representative hereunder.
13.2. Each Indemnifying Party hereby irrevocably appoints The Representative cannot resign or be removed by the Holders, except upon delivery to the Company of a written instrument signed by the successor Representative in which the successor Representative agrees to serve as Representative and the Holders consent thereto (such instrument being referred to as a "REPRESENTATIVE REPLACEMENT INSTRUMENT").
13.3. The signature of the Representative that purports to be on behalf of one or more of the Holders shall be deemed to be the signature of such Holders and they shall be bound by the terms of any documents and agreements executed and delivered by the Representative pursuant to this Agreement as though they were actual signatories thereto. The Company shall be entitled to rely, without any investigation or inquiry by the Company, upon all action by the Representative as having been taken upon the agent, proxy and attorney-in-fact for authority of such Indemnifying Party for all purposes of this Agreement, including full powers and authority on such Indemnifying Party’s behalf to (1) consummate Holders. Any action by the Transactions, (2) enter into the Escrow Agreement, (3) give and receive notices and communications to or from Parent (Representative taken on behalf of itself or any other Indemnified Person) relating the Holders shall be conclusively deemed to this Agreement or any be the action of the other Transactions; (4) pay expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (5) disburse any funds received hereunder to such Indemnifying Party and each other Indemnifying Party, (6) authorize deliveries to Parent of cash or other property from the Escrow Fund and legally bind each Indemnifying Party to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (7) object to such claims in accordance with Section 7.7; (8) consent or agree to, negotiate, enter into settlements and compromises ofHolders, and demand arbitration and comply with Orders with respect to, such claims; (9) take all actions necessary the Company shall not have any liability or appropriate responsibility to the Holders for any action taken in the judgment reliance thereon.
13.4. The appointment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance, hereunder is irrevocable and (10) subject to Section 6.3, execute for and on behalf of each Indemnifying Party any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages). This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Party or by operation of Law, whether by the death or incapacity of any Indemnifying Party or the occurrence of any other event, and any action taken by the Representative will pursuant to the authority granted in this SECTION 13 shall be effective and absolutely binding on each Holder, notwithstanding any contrary action of or direction from a Holder; and
13.5. As among the Holders, a Representative may resign at any time by giving notice to the Holders, and, if there does not exist any previously designated successor thereto, upon the appointment and qualification of a successor. A Representative may be discharged, and replaced by another person to act as valid as if successor, in accordance with SECTION 13.2.
(a) The Representative shall not be liable to the Holders for any mistake of fact or error of judgment or any acts or omissions of any kind unless caused by his willful misconduct. The Representative shall be entitled to rely on any instrument or signature believed by him to be genuine and may assume that any person purporting to give any writing, notice of instrument in connection with this Agreement is duly authorized to do so by the party on whose behalf such deathwriting, incapacity notice or other event had not occurred, regardless of whether or not any Indemnifying Party or the Representative will have received any notice thereofinstruction is given.
(b) The Representative will be the sole Holders, jointly and exclusive means of asserting or addressing any of the aboveseverally, and no Indemnifying Party will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, shall indemnify the Representative that is within for and hold the scope of the Representative’s authority pursuant to Section 7.11(a) (a “Representative’s Decision”) will constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all Indemnifying Parties and will be final, binding and conclusive upon each of them. Each Indemnified Person and the Escrow Agent will be entitled to rely upon any Representative’s Decision as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Indemnifying Party. Each Indemnified Person and the Escrow Agent are unconditionally and irrevocably relieved from any liability to any Person for any acts done by them in accordance with any Representative’s Decision. A notice by Parent to the Representative will constitute a notice to each of the Indemnifying Parties.
(c) The agency of the Representative may be changed, and the Person serving as the Representative may be replaced from time to time, by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties upon not less than ten days’ prior written notice to Parent. A vacancy in the position of the Representative may be filled by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties. If the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnifying Parties, other than the Representative, representing a majority of the Aggregate Escrow Funding Percentage of all Indemnifying Parties, other than the Representative, will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and the Representative will serve until such successor is duly appointed and qualified to act hereunder. In the event of a vacancy in the position of the Representative, or refusal or incapability of the Representative to serve, which continues for more than 90 days, Parent may appoint a successor Representative who will thereafter be a successor Representative hereunder. If there is not a Representative at any timeRepresentatives harmless against, any obligation to provide notice to the Representative will be deemed satisfied if such notice is delivered to each of the Indemnifying Parties at their addresses last known to Parentloss, which will be the addresses set forth in the Closing Statement unless Representative provides notice to Parent of any different address in the manner described in Section 8.3.
(d) All expenses, if any, liability or expense incurred by the Representative in connection with the performance of its duties as the Representative (the “Representative Expenses”) will be borne and paid by the Indemnifying Parties. No bond will be required of the Representative, and the Representative will not receive any compensation for its services. The Representative will also be entitled to advances against Representative Expenses from the Representative Fund, in the judgment and discretion of the Representative.
(e) The Representative will not be liable to any Indemnifying Party for any act done or omitted hereunder as the Representative while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert will be conclusive evidence of such good faith. The Indemnifying Parties will jointly and severally indemnify the Representative and hold the Representative harmless against any Losses incurred without bad faith on the part of the Representative and arising out of or in connection with the acceptance or administration of the Representative’s duties hereunder.
(f) The Representative will have reasonable access to information about the Surviving Company and the reasonable assistance of the Company’s former officers and employees for purposes of performing the Representative’s duties and exercising the Representative’s rights hereunderof, except that no Indemnified Person will be required to provide any information that is subject to a legal privilege or a protective Order or the disclosure performance of which would violate any Laws. The Representative will treat confidentially and not use or disclose the terms of this Agreement, any Related Agreement or any nonpublic information from or about Parent, Surviving Company or any Indemnified Person to anyone, except that the Representative may disclose the terms or information to the Indemnifying Parties or the Representative’s employees, attorneys, accountants, financial advisors, agents or authorized representatives on a need-to-know basis, as long as the Person agrees to treat such information confidentially. If requested by Parent, the Representative will enter into a separate confidentiality agreement before being provided access to such information.
(g) The initial Representative hereby accepts the appointment contained in its duties under this Agreement, as confirmed and extended by this Agreement, and agrees to act well as the Representative costs and to discharge the duties and responsibilities expenses of defending against any claim or liability arising under this Agreement or any of the Representative pursuant to the terms of this AgreementMerger Agreements.
Appears in 1 contract
Representative. (a) At the Effective Time, Vista will be constituted and The Representative is hereby irrevocably appointed as the Representative. Each Indemnifying Party hereby irrevocably appoints the Representative as the representative, agent, proxy proxy, and attorney-in-attorney in fact (coupled with an interest) for such Indemnifying Party all the equityholders of the Company for all purposes of under this Agreement, Agreement including the full powers power and authority on such Indemnifying Party’s behalf of all the equityholders of the Company: (i) to (1) consummate the Transactionstransactions contemplated under this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith; (2ii) enter into to negotiate claims and disputes arising under, or relating to, this Agreement and the Escrow Agreementother agreements, instruments, and documents contemplated hereby or executed in connection herewith (3including, for the avoidance of doubt, the adjustment of Closing Cash Proceeds contemplated by Section 3.03); (iii) give to receive and receive notices and communications disburse to, or cause to be received or from Parent (disbursed to, any equityholder of the Company any funds received on behalf of itself such equityholder 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 equityholder of the Company pursuant to this Agreement (including, for the avoidance of doubt, any portion of the Merger Consideration) or to satisfy any and all obligations or liabilities of any equityholder of the Company or the Representative in the performance of any of their commitments hereunder (including, for the avoidance of doubt, the satisfaction of payment obligations in connection with the adjustment of Closing Cash Proceeds contemplated by Section 3.03); (v) (A) to dispute or refrain from disputing, on behalf of the Unitholder or any other Indemnified Person) relating Optionholder relative to any amounts to be received by the Unitholder or any Optionholder under this Agreement or any other Transaction Document (including the Escrow Agreement), any claim made by Parent or Merger Sub under this Agreement or any other Transaction Document (including the Escrow Agreement), (B) to negotiate and compromise, on behalf of the Unitholder or any Optionholder, any dispute that may arise under, and exercise or refrain from exercising any remedies available under, this Agreement or any other TransactionsTransaction Document (including the Escrow Agreement) and (C) to execute, on behalf of the Unitholder or any Optionholder, any settlement agreement, release or other document with respect to such dispute or remedy; (4vi) pay expenses 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 (whether incurred without the prior approval of any equityholder of the Company); (vii) 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 (viii) to take all other actions to be taken by or on or after behalf of any equityholder of the date hereof) incurred Company in connection with this Agreement and the negotiation other agreements, instruments, and performance documents contemplated hereby or executed in connection herewith. Such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of each equityholder of the Company. All decisions and actions by the Representative shall be binding upon each equityholder of the Company, and no such equityholder shall have the right to object, dissent, protest or otherwise contest the same. The 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 Agreement, (5) disburse any funds received hereunder to such Indemnifying Party and each other Indemnifying Party, (6) authorize deliveries to Parent of cash or other property from the Escrow Fund and legally bind each Indemnifying Party to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (7) object to such claims in accordance with Section 7.7; (8) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (9) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance, and (10) subject to Section 6.3, execute for and on behalf of each Indemnifying Party any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages). This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Party or by operation of Law, whether by the death or incapacity of any Indemnifying Party or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Party or the Representative will have received any notice thereof.
(b) The Representative will and its Non-Recourse Parties shall be the sole indemnified, held harmless and exclusive means of asserting or addressing any reimbursed by each equityholder of the aboveCompany severally (based on each equityholder of the Company’s respective Equityholder Allocation Percentage), and no Indemnifying Party will have any right to act on its own behalf with respect to any such mattersnot jointly, other than any claim against all costs, expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid or dispute against the Representative. Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Representative that is within the scope of the Representative’s authority pursuant to Section 7.11(a) (a “Representative’s Decision”) will constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all Indemnifying Parties and will be final, binding and conclusive upon each of them. Each Indemnified Person and the Escrow Agent will be entitled to rely upon any Representative’s Decision as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Indemnifying Party. Each Indemnified Person and the Escrow Agent are unconditionally and irrevocably relieved from any liability to any Person for any acts done by them in accordance with any Representative’s Decision. A notice by Parent to the Representative will constitute a notice to each of the Indemnifying Parties.
(c) The agency of the Representative may be changed, and the Person serving as the Representative may be replaced from time to time, by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties upon not less than ten days’ prior written notice to Parent. A vacancy in the position of the Representative may be filled by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties. If the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnifying Parties, other than the Representative, representing a majority of the Aggregate Escrow Funding Percentage of all Indemnifying Parties, other than the Representative, will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and the Representative will serve until such successor is duly appointed and qualified to act hereunder. In the event of a vacancy in the position of the Representative, or refusal or incapability of the Representative to serve, which continues for more than 90 days, Parent may appoint a successor Representative who will thereafter be a successor Representative hereunder. If there is not a Representative at any time, any obligation to provide notice to the Representative will be deemed satisfied if such notice is delivered to each of the Indemnifying Parties at their addresses last known to Parent, which will be the addresses set forth in the Closing Statement unless Representative provides notice to Parent of any different address in the manner described in Section 8.3.
(d) All expenses, if any, incurred by the Representative and its Non-Recourse Parties in connection with the performance of its duties as any claim, action, suit or proceeding to which the Representative (the “Representative Expenses”) will be borne and paid or such other Person is made a party by the Indemnifying Parties. No bond will be required reason of the Representative, and the Representative will not receive any compensation for its services. The Representative will also be entitled to advances against Representative Expenses from the Representative Fund, in the judgment and discretion of the Representative.
(e) The Representative will not be liable to any Indemnifying Party for any act done fact that it is or omitted hereunder was acting as the Representative while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert will be conclusive evidence of such good faith. The Indemnifying Parties will jointly and severally indemnify the Representative and hold the Representative harmless against any Losses incurred without bad faith on the part of the Representative and arising out of or in connection with the acceptance or administration of the Representative’s duties hereunder.
(f) The Representative will have reasonable access to information about the Surviving Company and the reasonable assistance of the Company’s former officers and employees for purposes of performing the Representative’s duties and exercising the Representative’s rights hereunder, except that no Indemnified Person will be required to provide any information that is subject to a legal privilege or a protective Order or the disclosure of which would violate any Laws. The Representative will treat confidentially and not use or disclose the terms of this Agreement, any Related Agreement or any nonpublic information from or about Parent, Surviving Company or any Indemnified Person to anyone, except that the Representative may disclose the terms or information to the Indemnifying Parties or the Representative’s employees, attorneys, accountants, financial advisors, agents or authorized representatives on a need-to-know basis, as long as the Person agrees to treat such information confidentially. If requested by Parent, the Representative will enter into a separate confidentiality agreement before being provided access to such information.
(g) The initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended by this Agreement, and agrees to act as the Representative and to discharge the duties and responsibilities of the Representative pursuant to the terms of this AgreementAgreement (including, for the avoidance of doubt, the satisfaction of payment obligations in connection with the adjustment of Closing Cash Proceeds contemplated by Section 3.03). Any and all amounts paid or incurred by the Representative and its Non-Recourse Parties in connection with any claim, action, suit or proceeding to which the Representative or such other Person is made a party by reason of the fact that it is or was acting as the Representative pursuant to the terms of this Agreement are on behalf of the equityholders of the Company (and, not for the avoidance, on behalf of the Representative in any other capacity, as the Unitholder or otherwise).
(c) Neither the Representative nor any of its Non-Recourse Parties shall incur any liability to any equityholder of the Company by virtue of the failure or refusal of the Representative or any of its Non-Recourse Parties for any reason to consummate the transactions contemplated hereby or relating to the performance of their duties hereunder. The Representative and its Non-Recourse Parties shall have no liability in respect of any action, claim or proceeding brought against any such Person by any equityholder of the Company, regardless of the legal 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 any such Person took or omitted taking any action in good faith.
(d) If the Representative pays or causes to be paid any amounts in connection with any obligation or liability of an equityholder of the Company in connection with the transactions contemplated hereby (including, for the avoidance of doubt, the adjustment of Closing Cash Proceeds contemplated by Section 3.03), any such payments and the reasonable expenses of the Representative incurred in administering or defending the underlying dispute or claim may be reimbursed, when and as incurred, from the Representative Holdback Amount (and, if not so reimbursed from the Representative Holdback Amount, the Representative shall be indemnified, held harmless and reimbursed by each equityholder of the Company severally (based on the Equityholder Allocation Percentage of such equityholder of the Company), and not jointly, for such amount(s)). The Representative may, in its sole and absolute discretion, distribute, or cause to be distributed, any or all of the funds received or held by it on behalf of the equityholders of the Company (including, for the avoidance of doubt, any portion of the Merger Consideration) to one (1) or more of such equityholders 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 such equityholder. Upon full reimbursement of all expenses, costs, obligations or liabilities incurred by the Representative in the performance of its duties hereunder, the Representative shall distribute, or cause to be distributed, all remaining funds held by it on behalf of the equityholders of the Company to such equityholders; provided, that to ensure compliance with Treasury Regulation 1.409A-3(i)(5)(iv), the Optionholders shall not be entitled to receive any payment, and no payment shall be made to the Optionholders, in connection with the transaction contemplated hereby later than the date which is five (5) years after the Closing Date (it being understood that the Unitholder 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 Representative and its Affiliates shall not be liable to any equityholder of the Company for any action taken or not taken by the Representative or for any act or 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 Merger Sub or the Surviving Company.
(f) All references to the “Representative” herein mean such Person in its capacity as representative of the equityholders of the Company and not, for the avoidance of doubt, in any other capacity, as the Unitholder or otherwise.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Cognizant Technology Solutions Corp)
Representative. (a) At the Effective Time, Vista will Shareholder Representative Services LLC shall be constituted and appointed as the Representative, and the Representative hereby accepts such appointment. Each Indemnifying Party hereby irrevocably appoints Securityholder, by virtue of its adoption of this Agreement and approval of the Merger, shall be deemed to have appointed and constituted the Representative as the agent, proxy their agent and true and lawful attorney-in-fact for such Indemnifying Party for all purposes of this Agreement, including full with the powers and authority as set forth in this Agreement. The Representative shall be the exclusive agent for and on such behalf of the Indemnifying Party’s behalf Securityholders to (1) consummate the Transactions, (2) enter into the Escrow Agreement, (32) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Person) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the other Transactions; (4) pay expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (5) disburse any funds received hereunder to such Indemnifying Party and each other Indemnifying Party, (63) authorize deliveries to Parent of cash or other property from the Escrow Fund and legally bind each Indemnifying Party Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (74) object to such claims in accordance with Section 7.71.9 and Section 7.6; (8) 5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (96) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance, and (107) subject to Section 6.3Section 6.4, execute for and on behalf of each Indemnifying Party Securityholder any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages). The Representative shall be the sole and exclusive means of asserting or addressing any of the above, and no Indemnifying Securityholder shall have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Party Securityholder or by operation of Law, whether by the death or incapacity of any Indemnifying Party Securityholder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Party Securityholder or the Representative will have received any notice thereof. No bond will be required of the Representative. After the Closing, notices or communications to or from the Representative shall constitute notice to or from each of the Indemnifying Securityholders.
(b) The Representative will be the sole and exclusive means of asserting or addressing any of the above, and no Indemnifying Party will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Representative that is within the scope of the Representative’s authority pursuant to Section 7.11(a) (a “Representative’s Decision”) will constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all Indemnifying Parties and will be final, binding and conclusive upon each of them. Each Indemnified Person and the Escrow Agent will be entitled to rely upon any Representative’s Decision as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Indemnifying Party. Each Indemnified Person and the Escrow Agent are unconditionally and irrevocably relieved from any liability to any Person for any acts done by them in accordance with any Representative’s Decision. A notice by Parent to the Representative will constitute a notice to each of the Indemnifying Parties.
(c) The agency of the Representative may be changed, and the Person serving as the Representative may resign at any time and may be replaced from time to time, by the vote or consent holders of Indemnifying Parties representing a majority in interest of the Aggregate Escrow Funding Percentages of all Indemnifying Parties Company Capital Stock outstanding immediately prior to the Effective Time upon not less than ten (10) days’ prior written notice to Parent. The agency of the Representative may be changed only when the Person serving as the Representative is replaced pursuant to the preceding sentence. A vacancy in the position of the Representative may be filled by the vote or consent holders of Indemnifying Parties representing a majority in interest of the Aggregate Escrow Funding Percentages of all Indemnifying PartiesCompany Capital Stock outstanding immediately prior to the Effective Time. If the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnifying PartiesSecurityholders will promptly, other than the Representativewithin ten (10) days after such resignation or removal, representing a majority of the Aggregate Escrow Funding Percentage of all Indemnifying Parties, other than the Representative, will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and the Representative will serve until such successor is duly appointed and qualified to act hereunder. In the event of a vacancy in the position of the Representative, or refusal or incapability of the Representative to serve, which continues for more than 90 days, Parent may appoint a successor Representative who will thereafter be a successor Representative hereunder. If there is not a Representative at any time, any obligation to provide notice to the Representative will be deemed satisfied if such notice is delivered to each of the Indemnifying Parties Securityholders at their addresses last known to Parent, which will be the addresses address set forth in the Closing Statement Spreadsheet unless the Representative provides notice to Parent of any a different address in the manner described in Section 8.38.4.
(d) All expenses, if any, incurred by the Representative in connection with the performance of its duties as the Representative (the “Representative Expenses”) will be borne and paid by the Indemnifying Parties. No bond will be required of the Representative, and the Representative will not receive any compensation for its services. The Representative will also be entitled to advances against Representative Expenses from the Representative Fund, in the judgment and discretion of the Representative.
(ec) The Representative will shall not be liable to any Indemnifying Party Securityholder for any act done or omitted hereunder as the Representative while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert will shall be conclusive evidence of such good faith. The Indemnifying Parties will Securityholders shall jointly and severally indemnify and defend the Representative and hold the Representative harmless against any Losses incurred without bad faith on loss, liability , damage, claim, penalty, fine, forfeitures, action, fee, cost or expense including the part fees and expenses of the counsel and experts and their staffs and all expenses of document location duplication and shipment) (collectively, “Representative and Expenses”) arising out of or in connection with the acceptance or administration of the Representative’s duties hereunder. and under the Escrow Agreement, in each case as such Representative Expense is suffered or incurred; provided, that in the event that any such Representative Expense is finally adjudicated to have been directly caused by the gross negligence, fraud or bad faith of the Representative, the Representative will reimburse the Indemnifying Securityholders the amount of such indemnified Representative Expense to the extent attributable to such gross negligence, fraud or bad faith. If not paid directly to the Representative by the Indemnifying Securityholders, any such Representative Expenses may be recovered by the Representative (i) from the funds in the Representative Expense Fund and (ii) following the termination of the Escrow Period, the resolution of all Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, from the amounts in the Escrow Fund prior to any distribution to the Stockholders; provided, that while this section allows the Representative to be paid from the Representative Expense Fund and the Escrow Fund, this does not relieve the Indemnifying Securityholders from their obligation to promptly pay such Representative Expenses as they are suffered or incurred, nor does it prevent the Representative from seeking any remedies available to it at law or otherwise. In no event will the Representative be required to advance its own funds on behalf of the Indemnifying Securityholders or otherwise. The Indemnifying Securityholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Representative or the termination of this Agreement.
(fd) The Representative will shall have reasonable access to information about the Surviving Company Corporation and the reasonable assistance of the Company’s former officers and employees for purposes of performing the Representative’s its duties and exercising the Representative’s its rights hereunder, except ; provided that no Indemnified Person will be required to provide any information that is subject to a legal privilege or a protective Order or the disclosure of which would violate any Laws. The Representative will shall treat confidentially and not use or disclose the terms of this Agreement, any Related Agreement or any nonpublic information from or about Parent, Surviving Company Corporation, or any Indemnified Person to anyone, anyone (except that the Representative may disclose the terms as required by Law or information to the Indemnifying Parties Securityholders or the Representative’s employees, attorneys, accountants, financial advisors, agents advisors or authorized representatives on a need-to-need to know basis, as long as the Person agrees in each case who agree to treat such information confidentially. If requested ), provided, however, that neither Parent nor the Surviving Corporation shall be obligated to provide such access or information if it determines, in its reasonable judgment, that doing so would violate applicable Law or any Contract to which Parent, the Surviving Corporation or any of their Affiliates is a Party or obligation of confidentiality owed by Parent, the Surviving Corporation or any of their Affiliates to a third party, jeopardize the protection of attorney-client privilege or expose Parent or the Surviving Corporation to risk of liability for disclosure of sensitive or personally identifiable information. Notwithstanding anything in this Agreement to the contrary, following the Closing and the public announcement (if any) of the Merger, the Representative will enter into a separate confidentiality agreement before being provided access shall be permitted to publicly announce that it has been engaged to serve as the Representative in connection with the Merger as long as such informationannouncement does not disclose any of the terms of the Merger or the other transactions contemplated herein or hereby.
(ge) The By its signature to this Agreement, the initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended by this Agreement, and agrees to act as the Representative and to discharge the duties and responsibilities of the Representative pursuant to the terms of this Agreement.
(f) Upon the Closing, the Company will wire, or will cause to be wired, one hundred thousand US Dollars ($100,000) (the “Representative Expense Fund”) to the Representative, which will be used for the purposes of paying directly, or reimbursing the Representative for, any third party expenses of the Representative pursuant to this Agreement and the Escrow Agreement. The Indemnifying Securityholders will not receive any interest or earnings on the Representative Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will not be liable for any loss of principal of the Representative Expense Fund other than as a result of its gross negligence, willful misconduct, bad faith or fraud. The 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. Contemporaneous with or as soon as practicable following the completion of the Representative’s duties, the Representative will deliver the balance of the Representative Expense Fund to the Payment Agent (or the Surviving Corporation’s payroll agent, as applicable) for further distribution to the Indemnifying Securityholders. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Indemnifying Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) At Subject to the Effective Timeterms and conditions of this Section 10.19, Vista will be constituted and appointed Tower Arch Capital, L.P. is designated as the Representative. Each Indemnifying Party hereby irrevocably appoints the Representative as the agent, proxy and attorney-in-fact for such Indemnifying Party for all purposes of this Agreement, including full powers and authority on such Indemnifying Party’s behalf to (1) consummate the Transactions, (2) enter into the Escrow Agreement, (3) give and receive notices and communications to or from Parent (act on behalf of itself or any other Indemnified Person) relating to the Class A Common Unitholders and Class B Unitholders for certain limited purposes, as specified herein. Approval of this Agreement or any by a majority of the other Transactions; Members (4as defined in the Company's limited liability company agreement) pay expenses (whether incurred on or after will, to the date hereof) incurred in connection with maximum extent permitted under applicable Law, constitute knowing and irrevocable ratification and approval of such designation by the negotiation and performance of this Agreement, (5) disburse any funds received hereunder to such Indemnifying Party and each other Indemnifying Party, (6) authorize deliveries to Parent of cash or other property from the Escrow Fund and legally bind each Indemnifying Party to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (7) object to such claims in accordance with Section 7.7; (8) consent or agree to, negotiate, enter into settlements and compromises ofmajority Unitholders, and demand arbitration and comply with Orders with respect to, such claims; (9) take all actions necessary or appropriate in the judgment authorization of the Representative for to serve in such capacity (including the accomplishment of the foregoing, in each case without having exclusive power to seek negotiate and settle any and all disputes with Buyer or obtain the consent of any Person Merger Sub under any circumstance, and (10) subject to Section 6.3, execute for and on behalf of each Indemnifying Party any amendment to this Agreement, the Escrow Agreement or any exhibitthe Paying Agent Agreement), annex or schedule hereto or thereto and will also constitute a reaffirmation, approval, consent to, acceptance and adoption of, and an agreement to comply with and perform, all of the acknowledgments, waivers, releases, covenants and agreements made by the Representative on behalf of the Class A Common Unitholders and Class B Unitholders in this Agreement and the other documents delivered in connection herewith (including for the purpose Escrow Agreement and the Paying Agent Agreement), in each case, whether entered into or taken before, on or after the date of amending addresses or sharing percentagessuch approval. The Representative may resign at any time and may be removed only by the vote of Persons that collectively owned more than 50% of the Class A Common Units and Class B Units as of immediately prior to the Effective Time, voting as a single class (other than the Class A Common Units and Class B Units cancelled pursuant to Section 1.04(d)) (such Persons, the "Majority Holders"). This The designation of the Representative is coupled with an interest, and, except as set forth in the immediately preceding sentence with respect to the resignation or removal of the Representative, such designation is irrevocable and will not be affected by the death, incapacity, illness, bankruptcy, dissolution or other inability to act of any of the Class A Common Unitholders or Class B Unitholders. In the event that a Representative has resigned or been removed in accordance with this Section 10.19(a), a new Representative will be appointed by the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Representative. Written notice of any such resignation, removal, or appointment of agency and this a Representative will be delivered by the Representative to Buyer promptly after such action is taken. The power of attorney granted in this Section 10.18(a) is coupled with an interest and will is irrevocable, may be irrevocable delegated by the Representative and will not be terminated by any Indemnifying Party or by operation of Law, whether by shall survive the death or incapacity of any Indemnifying Party each Class A Common Unitholder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Party or the Representative will have received any notice thereofClass B Unitholder.
(b) The Representative will be have such powers and authority as are necessary or appropriate to carry out the sole functions assigned to it under this Agreement and exclusive means of asserting or addressing in any of other document delivered in connection herewith (including the aboveEscrow Agreement and the Paying Agent Agreement); provided, and no Indemnifying Party however, that the Representative will have any right no obligation to act on its own behalf with respect to any such matters, other than any claim of the Class A Common Unitholders or dispute against the RepresentativeClass B Unitholders. Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction ofThe Company, the Representative that is within Surviving Company, Buyer, Merger Sub, the scope of Escrow Agent, the Representative’s authority pursuant to Section 7.11(a) (a “Representative’s Decision”) will constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all Indemnifying Parties and will be final, binding and conclusive upon each of them. Each Indemnified Person Paying Agent and the Escrow Agent Firm will be entitled to rely upon any Representative’s Decision as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Indemnifying Party. Each Indemnified Person and on the Escrow Agent are unconditionally and irrevocably relieved from any liability to any Person for any acts done actions taken by them in accordance with any Representative’s Decision. A notice by Parent to the Representative will constitute a notice to each of without independent inquiry into the Indemnifying Parties.
(c) The agency of the Representative may be changed, and the Person serving as the Representative may be replaced from time to time, by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties upon not less than ten days’ prior written notice to Parent. A vacancy in the position of the Representative may be filled by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties. If the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnifying Parties, other than the Representative, representing a majority of the Aggregate Escrow Funding Percentage of all Indemnifying Parties, other than the Representative, will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and the Representative will serve until such successor is duly appointed and qualified to act hereunder. In the event of a vacancy in the position of the Representative, or refusal or incapability capacity of the Representative to serveso act. All actions, which continues for more than 90 daysnotices, Parent may appoint a successor communications and determinations by the Representative who to carry out such functions will thereafter conclusively be a successor deemed to have been authorized by, and will be binding upon, the Class A Common Unitholders and Class B Unitholders. Neither the Representative, nor any of its officers, directors, employees, partners (general or limited), members, managers, or Advisors will have any liability to Buyer, Merger Sub, the Company, the Surviving Company, the Class A Common Unitholders or the Class B Unitholders, or any of their respective Affiliates, or any Person acting on behalf of the foregoing, with respect to actions taken, or omitted to be taken, by the Representative hereunder. If there is not a Representative at any timein such capacity (or its officers, any obligation to provide notice to directors, employees, partners (general or limited), members, managers, or Advisors in connection therewith), except the Representative will be deemed satisfied if such notice is delivered to each of the Indemnifying Parties at their addresses last known to Parent, which will be the addresses set forth in the Closing Statement unless Representative provides notice to Parent of any different address in the manner described in Section 8.3.
(d) All expenses, if any, incurred by the Representative in connection with the performance of its duties as the Representative (the “Representative Expenses”) will be borne and paid by the Indemnifying Parties. No bond will be required of the Representative, and the Representative will not receive any compensation liable for its servicesactual fraud as finally determined by a court of competent jurisdiction from which no further appeal may be taken. The Representative will also be entitled to advances against Representative Expenses from the Representative Fund, engage such Advisors as it will deem necessary in connection with exercising its powers and performing its functions hereunder and (in the judgment and discretion absence of the Representative.
(e) The Representative will not be liable to any Indemnifying Party for any act done or omitted hereunder as the Representative while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert will be conclusive evidence of such good faith. The Indemnifying Parties will jointly and severally indemnify the Representative and hold the Representative harmless against any Losses incurred without bad faith on the part of the Representative) will be entitled to conclusively rely on the opinions and advice of such Persons in all matters. The Representative (for itself, and for its officers, directors, employees, partners (general or limited), members, managers, Advisors) will be entitled to full reimbursement for all reasonable expenses, disbursements and advances (including fees and disbursements of its Advisors) incurred by or on behalf of the Representative in such capacity (or any of its officers, directors, employees, partners (general or limited), members, managers, or Advisors in connection therewith), and to full indemnification against any liabilities, losses, damages, obligations, costs or expenses arising out of actions taken or omitted to be taken in its capacity as Representative (except for those arising out of the Representative's actual fraud as finally determined by a court of competent jurisdiction from which no further appeal may be taken), including the costs and expenses of investigation, defense, settlement or adjudication of any action, suit, claim, investigation, or proceeding, from the Class A Common Unitholders and Class B Unitholders (including from funds paid to the Representative under this Agreement or otherwise received by it in its capacity as the Representative, or funds to be distributed to the Class A Common Unitholders or Class B Unitholders under this Agreement at its direction, pursuant to or in connection with this Agreement (including under the acceptance Escrow Agreement and Paying Agent Agreement)) and all payments required to be made under ARTICLE I are expressly subject to this Section 10.19(b). Each Class A Common Unitholder and Class B Unitholder will be responsible for its pro rata portion of any amount owed to the Representative in accordance with this Section 10.19(b) based upon the number of Class A Common Units or administration Class B Units held by such Class A Common Unitholder or Class B Unitholder immediately prior to the Closing as a proportion of the Representative’s duties hereunderAggregate Fully-Diluted Units (as finally calculated by Section 1.07(e)). In furtherance of the foregoing, notwithstanding anything in this Agreement to the contrary, the Representative will have the power and authority to set aside and retain additional funds paid to or received by it, or direct payment of additional funds to be paid to the Class A Common Unitholders or Class B Unitholders as Merger Consideration pursuant to this Agreement at Closing or thereafter (including to establish such reserves as the Representative determines in good faith to be appropriate for such costs and expenses that are not then known or determinable). The relationship created herein is not to be construed as a joint venture or any form of partnership between or among the Representative or any Class A Common Unitholder or Class B Unitholder for any purpose of U.S. federal or state Law, including federal, state or foreign income Tax purposes. Neither the Representative nor any of its Affiliates owes any fiduciary or other duty to any Class A Common Unitholder or Class B Unitholder.
(fc) The Each Buyer Party (on its own behalf, and on behalf of the Buyer Group), and the Company acknowledges that the Representative is party to this Agreement solely for purposes of serving as the "Representative" hereunder, and no action, suit, claim, investigation, or proceeding will have reasonable access to information about be brought by, or on behalf of, any Buyer Party or the Buyer Group (including, after the Effective Time, the Surviving Company and its Subsidiaries) against the reasonable assistance Representative with respect to this Agreement or the Transactions, or any statement, certificate, instruction, opinion, instrument or other documents delivered hereunder (with it being understood that any covenant or agreement of or by the "parties" or "each of the Company’s former officers and employees for purposes of performing the Representative’s duties and exercising the Representative’s rights hereunderparties" will not be deemed to require performance by, except that no Indemnified Person will or be required to provide any information that is subject to a legal privilege or a protective Order or the disclosure of which would violate any Laws. The Representative will treat confidentially and not use or disclose the terms of this Agreement, any Related Agreement or any nonpublic information from or about Parent, Surviving Company or any Indemnified Person to anyone, except that the Representative may disclose the terms or information to the Indemnifying Parties or the Representative’s employees, attorneys, accountants, financial advisors, agents or authorized representatives on a need-to-know basis, as long as the Person agrees to treat such information confidentially. If requested by Parentan agreement of, the Representative will enter into a separate confidentiality agreement before being provided access to such information.
(g) The initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended unless performance by this Agreement, and agrees to act as the Representative and to discharge the duties and responsibilities of is expressly provided for in such covenant or the Representative pursuant to the terms of this Agreementexpressly so agrees in writing).
Appears in 1 contract
Sources: Agreement and Plan of Merger (Primoris Services Corp)
Representative. (a) At Each of the Effective TimeSellers hereby appoints ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇ as its, Vista will be constituted and appointed as the Representative. Each Indemnifying Party hereby irrevocably appoints the Representative as the agent, proxy his or her exclusive agent and attorney-in-fact for such Indemnifying Party for all purposes of this Agreement, including full powers and authority on such Indemnifying Party’s behalf (the “Representatives”)
(a) to (1) consummate the Transactions, (2) enter into the Escrow Agreement, (3) give and receive notices and communications with respect to or from Parent (on behalf the provisions of itself or any other Indemnified Person) relating to this Agreement or any of (including under ARTICLE VIII hereof), (b) to amend the other Transactions; (4) pay expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance terms of this AgreementAgreement (but not individual contracts, the forms of which may be attached hereto or incorporated herein by reference), (5c) disburse any funds received hereunder to such Indemnifying Party and each other Indemnifying Party, (6) authorize deliveries to Parent of cash or other property from the Escrow Fund and legally bind each Indemnifying Party to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (7) object to such claims in accordance with Section 7.7; (8) consent or agree to, negotiate, enter into settlements or compromises of matters arising under the provisions of this Agreement and compromises of, (d) to take any and demand arbitration and comply with Orders with respect to, such claims; (9) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having Representatives to seek or obtain the consent of any Person under any circumstance, and (10) subject to Section 6.3, execute for and be taken on behalf of each Indemnifying Party any amendment to Sellers under such provisions of this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentagesunder ARTICLE VIII hereof). This appointment of Such agency is irrevocable and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Party or by operation of Law, whether by interest. Upon the death or incapacity of either Representative, or his ceasing to be an employee or independent contractor of the Company or any Indemnifying Party or Affiliate, the occurrence of any other event, and any action taken by the remaining Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Party or the Representative will have received any notice thereof.
(b) The Representative will shall be the sole Representative and exclusive means shall notify the Parent of asserting such change in writing. Upon the death or addressing any incapacity of both Representatives, or their both ceasing to be an employee or independent contractor of the aboveCompany or any Affiliate, the Sellers, acting as a group with voting power based on voting power held by Sellers in the voting securities of the Company prior to the Closing Date shall appoint a successor Representative and no Indemnifying Party will have any right to act on its own behalf with respect to any shall notify the Parent of such matters, other than any claim or dispute against the Representativesuccessor in writing. Any successor Representative must be an employee of the Company or any Affiliate. Notwithstanding the foregoing, no bond shall be required of the Representatives and Sellers shall be responsible for the expenses of the Representatives incurred in the course of their duties as Representative, including reasonable attorneys’ fees. Notices or communications to or from a Representative shall constitute notice to or communication given or received by, and any from Sellers in respect of matters relating to this Agreement. Any decision, actionact, failure to act within a designated period of time, agreement, consent, settlement, resolution consent or instruction of, the of a Representative that is within the scope of the Representative’s authority pursuant to Section 7.11(a) (a “Representative’s Decision”) will shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction consent of all Indemnifying Parties Sellers, and will shall be final, binding and conclusive upon each of them. Each Indemnified Person Seller, and the Escrow Agent will be entitled to Parent may rely upon any Representative’s Decision decision, act, consent or instruction of a Representative as being a notice or communication to or by, or a the decision, actionact, failure to act within a designated period of time, agreement, consent, settlement, resolution consent or instruction of, of each and every such Indemnifying Party. Each Indemnified Person and the Escrow Agent are unconditionally and irrevocably relieved from any liability to any Person for any acts done by them in accordance with any Representative’s Decision. A notice by Parent to the Representative will constitute a notice to each of the Indemnifying PartiesSeller.
(c) The agency of the Representative may be changed, and the Person serving as the Representative may be replaced from time to time, by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties upon not less than ten days’ prior written notice to Parent. A vacancy in the position of the Representative may be filled by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties. If the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnifying Parties, other than the Representative, representing a majority of the Aggregate Escrow Funding Percentage of all Indemnifying Parties, other than the Representative, will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and the Representative will serve until such successor is duly appointed and qualified to act hereunder. In the event of a vacancy in the position of the Representative, or refusal or incapability of the Representative to serve, which continues for more than 90 days, Parent may appoint a successor Representative who will thereafter be a successor Representative hereunder. If there is not a Representative at any time, any obligation to provide notice to the Representative will be deemed satisfied if such notice is delivered to each of the Indemnifying Parties at their addresses last known to Parent, which will be the addresses set forth in the Closing Statement unless Representative provides notice to Parent of any different address in the manner described in Section 8.3.
(d) All expenses, if any, incurred by the Representative in connection with the performance of its duties as the Representative (the “Representative Expenses”) will be borne and paid by the Indemnifying Parties. No bond will be required of the Representative, and the Representative will not receive any compensation for its services. The Representative will also be entitled to advances against Representative Expenses from the Representative Fund, in the judgment and discretion of the Representative.
(e) The Representative will not be liable to any Indemnifying Party for any act done or omitted hereunder as the Representative while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert will be conclusive evidence of such good faith. The Indemnifying Parties will jointly and severally indemnify the Representative and hold the Representative harmless against any Losses incurred without bad faith on the part of the Representative and arising out of or in connection with the acceptance or administration of the Representative’s duties hereunder.
(f) The Representative will have reasonable access to information about the Surviving Company and the reasonable assistance of the Company’s former officers and employees for purposes of performing the Representative’s duties and exercising the Representative’s rights hereunder, except that no Indemnified Person will be required to provide any information that is subject to a legal privilege or a protective Order or the disclosure of which would violate any Laws. The Representative will treat confidentially and not use or disclose the terms of this Agreement, any Related Agreement or any nonpublic information from or about Parent, Surviving Company or any Indemnified Person to anyone, except that the Representative may disclose the terms or information to the Indemnifying Parties or the Representative’s employees, attorneys, accountants, financial advisors, agents or authorized representatives on a need-to-know basis, as long as the Person agrees to treat such information confidentially. If requested by Parent, the Representative will enter into a separate confidentiality agreement before being provided access to such information.
(g) The initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended by this Agreement, and agrees to act as the Representative and to discharge the duties and responsibilities of the Representative pursuant to the terms of this Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Ladenburg Thalmann Financial Services Inc)
Representative. (a) At the Effective Time, Vista ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III will be constituted and appointed as the Representative, and the Representative hereby accepts such appointment. Each Indemnifying Party hereby irrevocably appoints Securityholder, by virtue of its adoption of this Agreement and approval of the Merger, will be deemed to have appointed and constituted the Representative as the agent, proxy their agent and true and lawful attorney-in-fact for such Indemnifying Party for all purposes of this Agreement, including full with the powers and authority as set forth in this Agreement. The Representative will be the exclusive agent for and on such behalf of the Indemnifying Party’s behalf Securityholders to (1) consummate the Transactions, (2) enter into the Escrow Agreement, ; (32) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Person) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the other Transactionsdocuments contemplated by the Transactions (other than Letters of Transmittal, Non-competition agreements, Offer Letters and any other agreements respecting post-Closing services to Parent or any of its Subsidiaries (including the Surviving Entity and its Subsidiaries) (collectively, the “Excluded Agreements”), with respect to which the Representative has no authority); (4) pay expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (5) disburse any funds received hereunder to such Indemnifying Party and each other Indemnifying Party, (63) authorize deliveries to Parent of cash or other property from the Escrow Fund and legally bind each Indemnifying Party to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims)Securityholder thereto; (74) object to such claims in accordance with Section 7.77.6; (8) 5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (96) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance, and ; (107) subject to Section 6.36.1, execute for and on behalf of each Indemnifying Party Securityholder any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses addresses), other than any Excluded Agreement; (8) makes adjustments to the Escrow Release Percentages, the Redemption Consideration Percentages or sharing percentages)the Representative Fund Release Percentages that the Representative determines in good faith are just and equitable to reflect an appropriate allocation of responsibility for matters for which amounts have been paid out of the Escrow Fund (and Redemption Consideration Offsets) or the Representative Fund (in whole or in party) but for which not all Indemnifying Securityholders are bearing or should bear equal responsibility or to otherwise effect the terms of this Agreement; (9) enter into any waiver or extension pursuant to Section 6.2; (10) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance with the terms of the Escrow Agreement; and (11) execute such further instruments of assignment as Parent shall reasonably request. The Representative will be the sole and exclusive means of asserting or addressing any of the above on behalf of the Indemnifying Securityholders, and no Indemnifying Securityholder will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. All decisions and actions by the Representative (to the extent authorized by this Agreement) shall be binding upon all of the Indemnifying Securityholders, and no Indemnifying Securityholder shall have the right to object, dissent, protest or otherwise contest the same. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Party Securityholder or by operation of Law, whether by the death or incapacity of any Indemnifying Party Securityholder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Party Securityholder or the Representative will have received any notice thereof. All expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative (including in connection with Liability Claims) will be borne and paid by the Indemnifying Securityholders according to their respective Indemnification Percentages (the “Representative Expenses”). The Representative will have the right to recover Representative Expenses from the Representative Fund as such Representative Expenses are incurred. Following resolution of the post-Closing Merger Consideration adjustment and following the termination of the Escrow Claim Period, the resolution of all Liability Claims and the satisfaction of all claims made by Indemnified Persons for Losses, the Representative will have the right to recover Representative Expenses from Adjustment Fund or the Escrow Fund, respectively, and in its sole discretion to direct all or any portion of amounts otherwise to be released to the Indemnifying Securityholders into the Representative Fund by delivering to the Escrow Agent written instructions specifying the portion of such amounts to be directed to the Representative Fund. No bond will be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders with respect to the matters covered hereby. The Representative shall be entitled to engage such counsel, experts, consultants and other advisors as it shall deem necessary in connection with exercising its powers and performing its functions hereunder and (in the absence of bad faith on the part of the Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons. The Representative may (but need not) consult with any Indemnifying Securityholder in connection with exercising its powers and performing its functions hereunder and each Indemnifying Securityholder shall cooperate with and offer reasonable assistance to the Representative in connection therewith.
(b) The Representative will be the sole and exclusive means of asserting or addressing any of the above, and no Indemnifying Party will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Representative that is within the scope of the Representative’s authority pursuant to Section 7.11(a) (a “Representative’s Decision”) will constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all Indemnifying Parties and will be final, binding and conclusive upon each of them. Each Indemnified Person and the Escrow Agent will be entitled to rely upon any Representative’s Decision as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Indemnifying Party. Each Indemnified Person and the Escrow Agent are unconditionally and irrevocably relieved from any liability to any Person for any acts done by them in accordance with any Representative’s Decision. A notice by Parent to the Representative will constitute a notice to each of the Indemnifying Parties.
(c) The agency of the Representative may be changed, and the Person serving as the Representative may be replaced from time to time, by the vote or consent holders of Indemnifying Parties representing a majority in interest of the Aggregate Escrow Funding Percentages of all Indemnifying Parties upon not less than ten days’ prior written notice to Parent. The agency of the Representative may be changed only when the Person serving as the Representative is replaced pursuant to the preceding sentence. A vacancy in the position of the Representative may be filled by the vote or consent holders of Indemnifying Parties representing a majority in interest of the Aggregate Escrow Funding Percentages of all Indemnifying PartiesPercentages. If the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnifying Parties, other than the Representative, representing a majority of the Aggregate Escrow Funding Percentage of all Indemnifying Parties, other than the Representative, Securityholders will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and the Representative will serve until such successor is duly appointed and qualified to act hereunder. In the event of a vacancy in the position of the Representative, or refusal or incapability of the Representative to serve, which continues for more than 90 days, Parent may appoint a successor Representative who will thereafter be a successor Representative hereunder. If there is not a Representative at any time, any obligation to provide notice to the Representative will be deemed satisfied if such notice is delivered to each of the Indemnifying Parties Securityholders at their addresses last known to Parent, which will be the addresses address set forth in the Closing Statement Spreadsheet unless the Representative provides notice to Parent of any a different address in the manner described in Section 8.3.
(d) All expenses, if any, incurred by the Representative in connection with the performance of its duties as the Representative (the “Representative Expenses”) will be borne and paid by the Indemnifying Parties. No bond will be required of the Representative, and the Representative will not receive any compensation for its services. The Representative will also be entitled to advances against Representative Expenses from the Representative Fund, in the judgment and discretion of the Representative.
(ec) The Representative will not be liable to any Indemnifying Party Securityholder for any act done or omitted hereunder as in connection with the Representative Representative’s services under this Agreement or the Escrow Agreement while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert will be conclusive evidence of such good faith. The Indemnifying Parties Securityholders will ratably according to their Indemnification Percentages, but not jointly and severally severally, indemnify the Representative and hold its Affiliates and their respective partners, members, officers, managers, directors, employees, agents and representatives (the “Representative harmless Group”) from and against any Losses incurred without bad faith on and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the part reasonable fees and expenses of the counsel and experts and their staffs and all reasonable expense of document location, duplication and shipment) (collectively, “Representative and Losses”) arising out of or in connection with the acceptance Representative’s performance of this Agreement and the Escrow Agreement, in each case as such Representative Loss is suffered or administration incurred; provided that in the event that any such Representative Loss or any portion of a Representative Loss is finally adjudicated to have been directly caused by the gross negligence or bad faith of the Representative’s duties hereunder, the Representative will promptly reimburse the Indemnifying Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or bad faith. If not paid directly to the Representative by the Indemnifying Securityholders, any such Representative Losses may be recovered by the Representative from (i) the funds in the Representative Fund, (ii) the amounts in the Adjustment Fund at such time as remaining amounts in the Adjustment Fund would otherwise be distributable to the Indemnifying Securityholders and (iii) the amounts in the Escrow Fund at such time as remaining amounts in the Escrow Fund would otherwise be distributable to the Indemnifying Securityholders. Notwithstanding the foregoing, while this section allows the Representative to be paid from the Representative Fund, the Adjustment Fund and the Escrow Fund, this does not relieve the Indemnifying Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Representative from seeking any remedies available to it at law or otherwise. In no event will the Representative be required to advance its own funds on behalf of the Indemnifying Securityholders or otherwise. The Indemnifying Securityholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Representative or the termination of this Agreement.
(fd) The Until the Special Claim Period Expiration Date, or if earlier, at such time as there are no amounts remaining in the Escrow fund, Parent shall use commercially reasonable efforts to preserve and retain, or to cause the Company and the Subsidiaries to preserve and retain, all material accounting, Tax, legal, auditing and other books and records of the Company and its Subsidiaries in accordance with the same procedures and document retention policies that Parent uses for its equivalent materials. Parent will provide the Representative will have with reasonable access to, and the right to inspect and copy, all such information about the Surviving Company Entity and its Subsidiaries and the reasonable assistance of the Company’s former officers and employees for purposes of performing the Representative’s its duties and exercising the Representative’s its rights hereunder, except ; provided that no Indemnified Person will be required to provide any information that is subject to a legal privilege or a protective Order or the disclosure of which would violate any Laws. The Representative will treat confidentially and not use or disclose the terms of this Agreement, any Related Agreement or any nonpublic information from or about Parent, Surviving Company Entity, or any Indemnified Person to anyone, anyone (except that the Representative may disclose the terms or information to the Indemnifying Parties Securityholders or the Representative’s employees, attorneys, accountants, financial advisors, agents advisors or authorized representatives on a need-to-need to know basis, as long as the Person agrees in each case who agree to treat such information confidentially), provided, however, that neither Parent nor the Surviving Entity will be obligated to provide such access or information if doing so would violate applicable Law or any Contract to which Parent, the Surviving Entity or any of their Affiliates is a party or obligation of confidentiality owed by Parent, the Surviving Entity or any of their Affiliates to a third party, jeopardize the protection of attorney-client privilege (giving effect to reasonable arrangements such as common interest agreements to preserve such privilege) or any rights of Parent or any Indemnified Person under the work-product doctrine or expose Parent or the Surviving Entity to risk of liability for disclosure of sensitive or personally identifiable information. The Representative acknowledges that, as a holder of Company Units immediately prior to the Effective Time, the Representative is subject to the confidentiality requirements of clause (iii) of Section 4.1, which will apply to the Representative in such capacity as well. If requested by Parent, the Representative will enter into a separate confidentiality agreement before in substantially the form of the Confidentiality Agreement referred to in Section 4.1, as modified thereby and otherwise as mutually agreeable, prior to being provided access to such information.
(ge) The By its signature to this Agreement, the initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended by this Agreement, and agrees to act as the Representative and to discharge the duties and responsibilities of the Representative pursuant to the terms of this Agreement.
Appears in 1 contract
Representative. (a) At the Effective Time, Vista will be constituted and appointed as the Representative. Each Indemnifying Party hereby irrevocably appoints the Representative as the agent, proxy and attorney-in-fact for such Indemnifying Party for all purposes Upon execution of this Agreement, the Securityholders shall be deemed, for themselves and their personal representatives and other successors, to have constituted and appointed, effective from and after the Closing Date, Tal Barnoach, as the Representative to take all action required or permitted under this Agreement (including, without limitation, giving and receiving of all notices and consents and the execution and delivery of all documents, including full powers and authority on such Indemnifying Party’s behalf to (1) consummate any amendments of any non-material term or provision of this Agreement, the Transactions, (2) enter into sale of shares of Buyer Common Stock held by the Escrow AgreementAgent as described in Section 8.7(b) above, (3) give and receive notices the execution and communications to or from Parent (on behalf delivery of itself or any other Indemnified Person) relating to this Agreement or any of the other Transactions; (4) pay expenses (whether incurred on or after the date hereof) incurred agreements and releases in connection with the negotiation and performance of this Agreement, (5) disburse any funds received hereunder to such Indemnifying Party and each other Indemnifying Party, (6) authorize deliveries to Parent of cash or other property from the Escrow Fund and legally bind each Indemnifying Party to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (7) object to such claims in accordance with Section 7.7; (8) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (9) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent settlement of any Person dispute or claim under any circumstance, and (10) subject to Section 6.3, execute for and on behalf of each Indemnifying Party any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentagesArticle 8 hereof). This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Party or by operation of Law, whether by the death or incapacity of any Indemnifying Party or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Party or the Representative will have received any notice thereof.
(b) The Representative will be In the sole and exclusive means of asserting or addressing any event of the abovedeath, physical or mental incapacity or resignation of the Representative or a vacancy for any other reason, the former Securityholders who formerly held a majority of the Company Shares immediately prior to the Closing Date are authorized to and shall promptly appoint a substitute Representative and shall advise Buyer promptly thereof. As between the Representative, on the one hand, and no Indemnifying Party will have any right to act the Securityholders, on its own behalf with respect to any such matters, the other than any claim or dispute against the Representative. Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction ofhand, the Representative that is within shall not be liable for, and shall be indemnified by the scope Securityholders or provided with insurance against, any good faith error of judgment on its part or any other act done or omitted by him in good faith in connection with his duties as the Representative’s authority pursuant to Section 7.11(a) (a “Representative’s Decision”) will constitute a notice , except for gross negligence or communication to willful misconduct. The Representative may consult with professional advisors of his choice. The Representative shall not be responsible for the genuineness or by, or a decision, action, failure to act within a designated period validity of time, agreement, consent, settlement, resolution or instruction of all Indemnifying Parties any document and will be final, binding and conclusive upon each of them. Each Indemnified Person and the Escrow Agent will be entitled to rely upon any Representative’s Decision as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Indemnifying Party. Each Indemnified Person and the Escrow Agent are unconditionally and irrevocably relieved from any shall have no liability to any Person for any acts done by them acting in accordance with any Representative’s Decision. A notice written instructions given to him and believed by Parent him to the Representative will constitute a notice to each of the Indemnifying Parties.
(c) The agency of the Representative may be changed, and the Person serving as the Representative may be replaced from time to time, signed by the vote or consent of Indemnifying Parties representing a majority of proper parties. The Representative shall be entitled to recover the Aggregate Escrow Funding Percentages amount of all Indemnifying Parties upon not less than ten days’ prior written notice to Parent. A vacancy in the position of the Representative may be filled by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties. If the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnifying Parties, other than the Representative, representing a majority of the Aggregate Escrow Funding Percentage of all Indemnifying Parties, other than the Representative, will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and the Representative will serve until such successor is duly appointed and qualified to act hereunder. In the event of a vacancy in the position of the Representative, or refusal or incapability of the Representative to serve, which continues for more than 90 days, Parent may appoint a successor Representative who will thereafter be a successor Representative hereunder. If there is not a Representative at any time, any obligation to provide notice to the Representative will be deemed satisfied if such notice is delivered to each of the Indemnifying Parties at their addresses last known to Parent, which will be the addresses set forth in the Closing Statement unless Representative provides notice to Parent of any different address in the manner described in Section 8.3.
(d) All expenses, if any, expenses incurred by the Representative in connection with the performance performing his duties (including fees and expenses of its duties as professional advisors) and any indemnification to be provided to the Representative (not to exceed [**] in the “Representative Expenses”) will be borne and paid by the Indemnifying Parties. No bond will be required of the Representative, and the Representative will not receive any compensation for its services. The Representative will also be entitled to advances against Representative Expenses aggregate from the Representative Fund, in the judgment and discretion of the Representative.
(e) The Representative will not be liable to any Indemnifying Party for any act done or omitted hereunder as the Representative while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert will be conclusive evidence of such good faith. The Indemnifying Parties will jointly and severally indemnify the Representative and hold the Representative harmless against any Losses incurred without bad faith on the part of the Representative and arising out of or in connection with the acceptance or administration of the Representative’s duties hereunder.
(f) The Representative will have reasonable access to information about the Surviving Company and the reasonable assistance of the Company’s former officers and employees for purposes of performing the Representative’s duties and exercising the Representative’s rights hereunder, except that no Indemnified Person will be required to provide any information that is subject to a legal privilege or a protective Order or the disclosure of which would violate any Laws. The Representative will treat confidentially and not use or disclose the terms of this Agreement, any Related Agreement or any nonpublic information from or about Parent, Surviving Company or any Indemnified Person to anyone, except Escrow Amount provided that the Representative may disclose Buyer Indemnitees have received all amounts due to them for Damages from the terms or information to the Indemnifying Parties or the Representative’s employees, attorneys, accountants, financial advisors, agents or authorized representatives on a need-to-know basis, as long as the Person agrees to treat such information confidentially. If requested by Parent, the Representative will enter into a separate confidentiality agreement before being provided access to such information.
(g) The initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended by this Agreement, and agrees to act as the Representative and to discharge the duties and responsibilities of the Representative Escrow Amount pursuant to the terms provisions of this Agreement.Article 8 prior to any payment to the Representative
Appears in 1 contract
Sources: Share Purchase Agreement (Phoenix Technologies LTD)
Representative. (a) At the Effective TimeUnless otherwise required by applicable Legal Requirements, Vista will be constituted and appointed as the Representative. Each Indemnifying Party hereby irrevocably appoints the Representative as agrees that it (and its legal, financial, accounting and other representatives) shall hold in confidence all non-public information concerning the agentCompany, proxy and attorney-in-fact for such Indemnifying Party for all purposes of this Agreement, including full powers and authority on such Indemnifying Party’s behalf to (1) consummate the Transactions, (2) enter into the Escrow Agreement, (3) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Person) relating to of their respective Subsidiaries, this Agreement or any of the other Transactions; (4) pay expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (5) disburse any funds received hereunder to such Indemnifying Party and each other Indemnifying Party, (6) authorize deliveries to Parent of cash or other property from the Escrow Fund and legally bind each Indemnifying Party to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (7) object to such claims transactions contemplated hereby in accordance with Section 7.7; (8) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (9) take all actions necessary or appropriate in the judgment terms of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance, and (10) subject to Section 6.3, execute for and on behalf of each Indemnifying Party any amendment to this Agreement, the Escrow Confidentiality Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages). This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Party or by operation of Law, whether by the death or incapacity of any Indemnifying Party or the occurrence of any other event, and any action taken by as if the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Party or the Representative will have received any notice thereofwere a party thereto.
(b) The Representative will be the sole represents and exclusive means of asserting or addressing any of the above, warrants to Parent and no Indemnifying Party will have any right Merger Sub that:
(i) The Representative has all necessary power and authority to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. Any notice or communication given or received by, execute and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Representative that is within the scope of the Representative’s authority pursuant to Section 7.11(a) (a “Representative’s Decision”) will constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all Indemnifying Parties and will be final, binding and conclusive upon each of them. Each Indemnified Person deliver this Agreement and the Escrow Agent will be entitled Agreement and to rely upon any Representative’s Decision as being a notice carry out his, her or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each its obligations hereunder and every such Indemnifying Party. Each Indemnified Person and the Escrow Agent are unconditionally and irrevocably relieved from any liability to any Person for any acts done by them in accordance with any Representative’s Decision. A notice by Parent to the Representative will constitute a notice to each of the Indemnifying Partiesthereunder.
(cii) The agency of This Agreement has been duly executed and delivered by the Representative may be changedand, assuming the due authorization, execution and delivery of this Agreement by the Parent, Merger Sub and the Person serving as Company, constitutes the Representative may be replaced from time to time, by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties upon not less than ten days’ prior written notice to Parent. A vacancy in the position of the Representative may be filled by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties. If the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnifying Parties, other than the Representative, representing a majority of the Aggregate Escrow Funding Percentage of all Indemnifying Parties, other than the Representative, will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, valid and the Representative will serve until such successor is duly appointed and qualified to act hereunder. In the event of a vacancy in the position legally binding obligation of the Representative, or refusal or incapability of enforceable against the Representative in accordance with its terms, subject to servebankruptcy, which continues for more than 90 daysinsolvency, Parent may appoint a successor Representative who will thereafter be a successor Representative hereunder. If there is not a Representative at any timereorganization or similar laws of general application affecting the rights and remedies of creditors, any obligation and to provide notice to the Representative will be deemed satisfied if such notice is delivered to each of the Indemnifying Parties at their addresses last known to Parent, which will be the addresses set forth in the Closing Statement unless Representative provides notice to Parent of any different address in the manner described in Section 8.3general equity principles.
(diii) All expenses, if any, incurred The Escrow Agreement will be duly executed and delivered by the Representative in connection with and, assuming the performance due authorization, execution and delivery of its duties as the Representative (the “Representative Expenses”) will be borne and paid Escrow Agreement by the Indemnifying Parties. No bond Parent and the Escrow Agent, will be required constitute a legal, valid and binding obligation of the Representative, and enforceable against the Representative will not receive any compensation for its services. The Representative will also be entitled to advances against Representative Expenses from the Representative Fund, in the judgment and discretion of the Representative.
(e) The Representative will not be liable to any Indemnifying Party for any act done or omitted hereunder as the Representative while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert will be conclusive evidence of such good faith. The Indemnifying Parties will jointly and severally indemnify the Representative and hold the Representative harmless against any Losses incurred without bad faith on the part of the Representative and arising out of or in connection with the acceptance or administration of the Representative’s duties hereunder.
(f) The Representative will have reasonable access to information about the Surviving Company and the reasonable assistance of the Company’s former officers and employees for purposes of performing the Representative’s duties and exercising the Representative’s rights hereunderits terms, except that no Indemnified Person will be required to provide any information that is subject to a legal privilege bankruptcy, insolvency, reorganization or a protective Order or similar laws of general application affecting the disclosure rights and remedies of which would violate any Laws. The Representative will treat confidentially and not use or disclose the terms of this Agreement, any Related Agreement or any nonpublic information from or about Parent, Surviving Company or any Indemnified Person to anyone, except that the Representative may disclose the terms or information to the Indemnifying Parties or the Representative’s employees, attorneys, accountants, financial advisors, agents or authorized representatives on a need-to-know basis, as long as the Person agrees to treat such information confidentially. If requested by Parent, the Representative will enter into a separate confidentiality agreement before being provided access to such information.
(g) The initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended by this Agreementcreditors, and agrees to act as the Representative and to discharge the duties and responsibilities of the Representative pursuant to the terms of this Agreementgeneral equity principles.
Appears in 1 contract
Sources: Merger Agreement (Mykrolis Corp)
Representative. (a) At Subject to the Effective Timeterms and conditions of this Section 11.18, Vista will be constituted and appointed ▇▇▇▇ Capital Private Equity, LP is designated as the RepresentativeRepresentative to act on behalf of the Stockholders and Optionholders for certain limited purposes, as specified herein. Each Indemnifying Party hereby irrevocably appoints Approval of this Agreement by the Stockholders holding a majority of the outstanding Capital Stock will, to the maximum extent permitted under applicable Law (including DGCL § 251(b)), constitute knowing and irrevocable ratification and approval of such designation by the Stockholders and Optionholders, and authorization of the Representative as to serve in such capacity (including the agent, proxy exclusive power to negotiate and attorney-in-fact for such Indemnifying Party for settle any and all purposes of disputes with Buyer or Merger Sub under this Agreement, including full powers and authority on such Indemnifying Party’s behalf to (1) consummate the Transactions, (2) enter into the Escrow Agreement, (3) give or the Paying Agent Agreement), and receive notices will also constitute a reaffirmation, approval, consent to, acceptance and communications adoption of, and an agreement to or from Parent (comply with and perform, all of the acknowledgments, waivers, releases, covenants and agreements made by the Representative on behalf of itself or any other Indemnified Person) relating to the Stockholders and Optionholders in this Agreement or any of and the other Transactions; documents delivered in connection herewith (4) pay expenses (including the Escrow Agreement and the Paying Agent Agreement), in each case, whether incurred entered into or taken before, on or after the date hereofof such approval. The Representative may resign at any time and may be removed only by the vote of Persons that collectively owned more than 50% of the Capital Stock as of immediately prior to the Effective Time (other than (x) incurred in connection with shares of Common Stock cancelled pursuant to Section 1.04(c) and (y) Dissenting Shares) (such Persons, the negotiation and performance of this Agreement, (5) disburse any funds received hereunder to such Indemnifying Party and each other Indemnifying Party, (6) authorize deliveries to Parent of cash or other property from the Escrow Fund and legally bind each Indemnifying Party to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims“Majority Holders”); (7) object to such claims in accordance with Section 7.7; (8) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (9) take all actions necessary or appropriate in the judgment . The designation of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance, and (10) subject to Section 6.3, execute for and on behalf of each Indemnifying Party any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages). This appointment of agency and this power of attorney is coupled with an interest and will be interest, and, except as set forth in the immediately preceding sentence with respect to the resignation or removal of the Representative, such designation is irrevocable and will not be terminated by any Indemnifying Party or by operation of Law, whether affected by the death death, incapacity, illness, bankruptcy, dissolution or incapacity other inability to act of any Indemnifying Party of the Stockholders or Optionholders. In the occurrence event that a Representative has resigned or been removed in accordance with this Section 11.18(a), a new Representative will be appointed by the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Representative. Written notice of any other eventsuch resignation, and any action taken removal, or appointment of a Representative will be delivered by the Representative will be as valid as if to Buyer promptly after such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Party or the Representative will have received any notice thereofaction is taken.
(b) The Representative will be have such powers and authority as are necessary or appropriate to carry out the sole functions assigned to it under this Agreement and exclusive means of asserting or addressing in any of other document delivered in connection herewith (including the aboveEscrow Agreement and the Paying Agent Agreement); provided, and no Indemnifying Party however, that the Representative will have any right no obligation to act on its own behalf with respect to any such matters, other than any claim of the Stockholders or dispute against the RepresentativeOptionholders. Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction ofThe Company, the Representative that is within Surviving Corporation, Buyer, Merger Sub, the scope of Escrow Agent, the Representative’s authority pursuant to Section 7.11(a) (a “Representative’s Decision”) will constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all Indemnifying Parties and will be final, binding and conclusive upon each of them. Each Indemnified Person Paying Agent and the Escrow Agent Firm will be entitled to rely upon any Representative’s Decision as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Indemnifying Party. Each Indemnified Person and on the Escrow Agent are unconditionally and irrevocably relieved from any liability to any Person for any acts done actions taken by them in accordance with any Representative’s Decision. A notice by Parent to the Representative will constitute a notice to each of without independent inquiry into the Indemnifying Parties.
(c) The agency of the Representative may be changed, and the Person serving as the Representative may be replaced from time to time, by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties upon not less than ten days’ prior written notice to Parent. A vacancy in the position of the Representative may be filled by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties. If the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnifying Parties, other than the Representative, representing a majority of the Aggregate Escrow Funding Percentage of all Indemnifying Parties, other than the Representative, will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and the Representative will serve until such successor is duly appointed and qualified to act hereunder. In the event of a vacancy in the position of the Representative, or refusal or incapability capacity of the Representative to serveso act. All actions, which continues for more than 90 daysnotices, Parent may appoint a successor Representative who will thereafter be a successor Representative hereunder. If there is not a Representative at any time, any obligation to provide notice to communications and determinations by the Representative to carry out such functions will conclusively be deemed to have been authorized by, and will be deemed satisfied if such notice is delivered binding upon, the Stockholders and Optionholders. Neither the Representative, nor any of its officers, directors, employees, partners (general or limited), members, managers, or Advisors will have any liability to each Buyer, Merger Sub, the Company, the Surviving Corporation, the Stockholders or Optionholders, or any of their respective Affiliates, or any Person acting on behalf of the Indemnifying Parties at their addresses last known foregoing, with respect to Parentactions taken, which will or omitted to be the addresses set forth in the Closing Statement unless Representative provides notice to Parent of any different address in the manner described in Section 8.3.
(d) All expensestaken, if any, incurred by the Representative in such capacity (or its officers, directors, employees, partners (general or limited), members, managers, or Advisors in connection with the performance of its duties as the Representative (the “Representative Expenses”) will be borne and paid by the Indemnifying Parties. No bond will be required of the Representative, and the Representative will not receive any compensation for its servicestherewith). The Representative will also be entitled to advances against Representative Expenses from the Representative Fund, engage such Advisors as it will deem necessary in connection with exercising its powers and performing its functions hereunder and (in the judgment and discretion absence of the Representative.
(e) The Representative will not be liable to any Indemnifying Party for any act done or omitted hereunder as the Representative while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert will be conclusive evidence of such good faith. The Indemnifying Parties will jointly and severally indemnify the Representative and hold the Representative harmless against any Losses incurred without bad faith on the part of the Representative) will be entitled to conclusively rely on the opinions and advice of such Persons in all matters. The Representative (for itself, and for its officers, directors, employees, partners (general or limited), members, managers, Advisors) will be entitled to full reimbursement for all reasonable expenses, disbursements and advances (including fees and disbursements of its Advisors) incurred by or on behalf of the Representative in such capacity (or any of its officers, directors, employees, partners (general or limited), members, managers, or Advisors in connection therewith), and to full indemnification against any liabilities, losses, damages, obligations, costs or expenses arising out of actions taken or omitted to be taken in its capacity as Representative, including the costs and expenses of investigation, defense, settlement or adjudication of any action, suit, claim, investigation, or proceeding, from the Stockholders and the Optionholders (including from funds paid to the Representative under this Agreement and/or otherwise received by it in its capacity as the Representative, or funds to be distributed to the Stockholders or Optionholders under this Agreement at its direction, pursuant to or in connection with this Agreement (including under the acceptance or administration Escrow Agreement and Paying Agent Agreement)) and all payments required to be made under ARTICLE I are expressly subject to this Section 11.18(b). Each Stockholder and Optionholder will be responsible for its pro rata portion of any amount owed to the Representative in accordance with this Section 11.18(b) based upon the pro rata portion of the Representative’s duties hereunder.
Aggregate Fully-Diluted Common Shares held by such Stockholder or Optionholder immediately prior to the Closing (f) The Representative will have reasonable access as finally calculated pursuant to information about the Surviving Company and the reasonable assistance Section 1.07(g)). In furtherance of the Company’s former officers and employees for purposes of performing the Representative’s duties and exercising the Representative’s rights hereunderforegoing, except that no Indemnified Person will be required to provide any information that is subject to a legal privilege or a protective Order or the disclosure of which would violate any Laws. The Representative will treat confidentially and not use or disclose the terms of notwithstanding anything in this Agreement, any Related Agreement or any nonpublic information from or about Parent, Surviving Company or any Indemnified Person to anyone, except that the Representative may disclose the terms or information to the Indemnifying Parties or the Representative’s employees, attorneys, accountants, financial advisors, agents or authorized representatives on a need-to-know basis, as long as the Person agrees to treat such information confidentially. If requested by Parentcontrary, the Representative will enter into have the power and authority to set aside and retain additional funds paid to or received by it, or direct payment of additional funds to be paid to the Stockholders or Optionholders as Merger Consideration pursuant to this Agreement at Closing or thereafter (including to establish such reserves as the Representative determines in good faith to be appropriate for such costs and expenses that are not then known or determinable). The relationship created herein is not to be construed as a separate confidentiality agreement before being provided access joint venture or any form of partnership between or among the Representative or any Stockholder or Optionholder for any purpose of U.S. federal or state Law, including federal, state or foreign income Tax purposes. Neither the Representative nor any of its Affiliates owes any fiduciary or other duty to such informationany Stockholder or Optionholder.
(gc) The initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended by this AgreementEach Buyer Party (on its own behalf, and agrees on behalf of the Buyer Group), and the Company acknowledges that the Representative is party to act this Agreement solely for purposes of serving as the “Representative” hereunder, and no action, suit, claim, investigation, or proceeding will be brought by, or on behalf of, any Buyer Party or the Buyer Group (including, after the Effective Time, the Surviving Corporation and its Subsidiaries) against the Representative and with respect to discharge this Agreement or the duties and responsibilities Transactions, or any statement, certificate, instruction, opinion, instrument or other documents delivered hereunder (with it being understood that any covenant or agreement of or by the “parties” or “each of the parties” will not be deemed to require performance by, or be an agreement of, the Representative pursuant to unless performance by the terms of this AgreementRepresentative is expressly provided for in such covenant or the Representative expressly so agrees in writing).
Appears in 1 contract
Sources: Merger Agreement (Trimble Inc.)
Representative. (a) At the Effective Time, Vista will be constituted and appointed The Representative shall serve as the Representative. Each Indemnifying Party hereby irrevocably appoints the Representative as the agent, proxy agent for and attorney-in-fact for such Indemnifying Party for all purposes of this Agreement, including full powers and authority on such Indemnifying Party’s behalf to (1) consummate the Transactions, (2) enter into the Escrow Agreement, (3) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Personthe Company Stockholders (in their capacities as such) relating to this Agreement or any of the other Transactions; to: (4i) pay expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreementreceive, (5) disburse any funds received hereunder to such Indemnifying Party and each other Indemnifying Party, (6) authorize deliveries to Parent of cash or other property from the Escrow Fund and legally bind each Indemnifying Party to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (7) object to such claims in accordance with Section 7.7; (8) consent or agree toassert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders orders of courts and awards of arbitrators with respect to, any Claims and Liabilities by any Indemnitee, against the Company and any Company Stockholders or by any such claimsCompany Stockholder against any Indemnifying Party or any other dispute between Parent and any Company Stockholder, in each case relating to this Agreement or the transactions contemplated hereby or thereby; and (9ii) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Any and all Claims and Liabilities between or among any Indemnitee, and (10) subject to Section 6.3, execute for and on behalf of each Indemnifying Party the Representative and/or any amendment one or more Company Stockholders relating to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages). This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Party or by operation of Law, whether by transactions contemplated hereby shall in the death or incapacity case of any Indemnifying Party claim or the occurrence of any other event, and any action taken dispute asserted by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether against or not any Indemnifying Party or the Representative will have received any notice thereof.
(b) The Representative will be the sole and exclusive means of asserting or addressing any of the above, and no Indemnifying Party will have any right to act on its own behalf with respect to involving any such matters, Company Stockholder (in its capacity as such) (other than any claim against or dispute against with the Representative. Any notice ), be asserted or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, otherwise addressed solely by the Representative that is within the scope on behalf of the Representative’s authority pursuant to Section 7.11(a) such Company Stockholder (a “Representative’s Decision”) will constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all Indemnifying Parties and will be final, binding and conclusive upon each of themnot by such Company Stockholder acting on its own behalf). Each Indemnified Person and the Escrow Agent will be entitled to rely upon any Representative’s Decision as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Indemnifying Party. Each Indemnified Person and the Escrow Agent are unconditionally and irrevocably relieved from any liability to any Person for any acts done by them in accordance with any Representative’s Decision. A notice by Parent to the Representative will constitute a notice to each of the Indemnifying Parties.
(c) The agency of the Representative may be changed, and the Person serving as the Representative may be replaced from time to time, time by the vote or consent holders of Indemnifying Parties representing a majority in interest of the Aggregate Escrow Funding Percentages of all Indemnifying Parties shares held by the Company Stockholders upon not less than ten days’ prior written notice to Parent. A vacancy in the position of the Representative may be filled by the vote or consent of Indemnifying Parties representing a majority of the Aggregate Escrow Funding Percentages of all Indemnifying Parties. If the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnifying Parties, other than the Representative, representing a majority of the Aggregate Escrow Funding Percentage of all Indemnifying Parties, other than the Representative, will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and the Representative will serve until such successor is duly appointed and qualified to act hereunder. In the event of a vacancy in the position of the Representative, or refusal or incapability of the Representative to serve, which continues for more than 90 days, Parent may appoint a successor Representative who will thereafter be a successor Representative hereunder. If there is not a Representative at any time, any obligation to provide notice to the Representative will be deemed satisfied if such notice is delivered to each of the Indemnifying Parties at their addresses last known to Parent, which will be the addresses set forth in the Closing Statement unless Representative provides notice to Parent of any different address in the manner described in Section 8.3.
(d) All expenses, if any, incurred by the Representative in connection with the performance of its duties as the Representative (the “Representative Expenses”) will be borne and paid by the Indemnifying Parties. No bond will shall be required of the Representative, and the Representative will not shall receive any no compensation for its his services. The Representative will also be entitled Notices or communications to advances against Representative Expenses or from the Representative Fund, in the judgment and discretion shall constitute notice to or from each of the RepresentativeCompany Stockholders.
(eb) The Representative will shall not be liable to any Indemnifying Party Company Stockholder for any act done or omitted hereunder as the Representative while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert will be conclusive evidence of such good faith. The Indemnifying Parties will jointly Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against the Representative. The Company Stockholders shall, severally and not jointly, on a pro rata basis, based on the number of shares of Company Common Stock issued and outstanding as of the Effective Time, indemnify the Representative and hold the Representative him harmless against any Losses loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of the Representative and arising out of or in connection with the acceptance or administration of his duties hereunder, including without limitation the legal costs and expenses of defending the Representative against any claim or liability in connection with the performance of the Representative’s duties hereunderduties.
(fc) Notwithstanding anything herein to the contrary, the Representative is not authorized to, and shall not, accept on behalf of any holder of Company Stock any Merger Consideration to which such holder of Company Stock is entitled under this Agreement and the Representative shall not in any manner exercise, or seek to exercise, any voting power whatsoever with respect to shares of capital stock of the Company or Parent now or hereafter owned of record or beneficially by any holder of Company Stock unless the Representative is expressly authorized to do so in writing signed by the holder of Company Stock. In all matters relating to this Article 8, the Representative shall be the only party entitled to assert the rights of the holders of Company Stock and the Representative shall perform all of the obligations of the holders of Company Stock hereunder. Representative shall promptly, and in any event within five (5) business days, provide written notice to the affected of any action taken on their behalf by the Representative pursuant to the authority delegated to the Representative under this Section 8.7.
(d) The Representative will shall have reasonable access to information about the Surviving Company and the reasonable assistance of the Company’s former officers and employees for purposes of performing the Representative’s its duties and exercising the Representative’s its rights hereunder, except provided that no Indemnified Person will be required to provide any information that is subject to a legal privilege or a protective Order or the disclosure of which would violate any Laws. The Representative will shall treat confidentially and not use or disclose the terms of this Agreement, any Related Agreement or any nonpublic information from or about Parent, Surviving the Company or any Indemnified Person to anyone, anyone (except that the Representative may disclose the terms or information to the Indemnifying Parties or the Representative’s employees, attorneys, accountants, financial advisors, agents or authorized representatives on a need-to-need to know basis, as long as the Person agrees basis to individuals who agree to treat such information confidentially. If requested by Parent, the Representative will enter into a separate confidentiality agreement before being provided access to such information).
(g) The initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended by this Agreement, and agrees to act as the Representative and to discharge the duties and responsibilities of the Representative pursuant to the terms of this Agreement.
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