Representative. (a) By the adoption of the Merger, and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event. (b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same. (c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise. (d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement. (e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein. (f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 3 contracts
Sources: Merger Agreement (Kardigan, Inc.), Merger Agreement (Kardigan, Inc.), Merger Agreement (Kardigan, Inc.)
Representative. (a) By the adoption Each of the Merger, Shareholders approves the designation of -------------- and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and designates ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ relating the representative of the Shareholders (the "Representative") and as the attorney-in-fact and agent for and on behalf of each Shareholder with respect to the determination certification of the Merger Consideration Closing Stockholders' Equity under Section 1.5 hereof and claims for indemnification under this Article VIII and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of taking by the Representative as to the determination of the Merger Consideration any and all actions and the determination, dispute and facilitating the disbursement making of the Milestone Payments pursuant to this Agreement any decisions required or any other actions required permitted to be taken by the Representative under this Agreement, including, without limitation, the Ancillary Agreementsexercise of the power to: (a) agree to, negotiate, enter into settlements and compromises of, demand arbitration of, and no Securityholder shall comply with orders of courts and awards of arbitrators with respect to, such claims; (b) arbitrate, resolve, settle or compromise any claim for indemnity made pursuant to Article VIII; and (c) take all actions necessary in the judgment of the Representative for the accomplishment of the foregoing. The Representative will have any cause authority and power to act on behalf of action against Kardigan each Shareholder with respect to the disposition, settlement or its Affiliates for other handling of all claims under Article VIII and all rights or obligations arising under Article VIII. The Shareholders will be bound by all actions taken and documents executed by the Representative in connection with Article VIII, and DoveBid will be entitled to rely on any action taken by such Person in reliance upon the instructions or decisions decision of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or . In performing the functions specified in connection with the Ancillary Agreementsthis Agreement, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf will not be liable to any Shareholder in the absence of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconductmisconduct on the part of the Representative. The Shareholders shall severally indemnify the Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold him harmless against any loss, liability or expense incurred without gross negligence or willful misconduct on the part of the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement acceptance or administration of its rights under this Agreement or any other agreement entered into his duties hereunder. Any out-of-pocket costs and expenses reasonably incurred by the Representative in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered actions taken by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable pursuant to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to terms of Article VIII (including without limitation the Securityholders; provided, that while hiring of legal counsel and the Representative may incurring of legal fees and costs) will be paid from by the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided Shareholders to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority pro rata in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent proportion to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors their respective percentage equity interests in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of ClosingCompany.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Dovebid Inc), Stock Purchase Agreement (Dovebid Inc)
Representative. (a) By the adoption of the Mergerexecuting this Joinder, and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant Permitted Transferee shall be deemed to this Agreement, each of the Securityholders have irrevocably nominate, constitute and appoint the Representative, appointed Representative as of the Closing, as the true and lawful its agent and attorney in fact with full power of each Securityholdersubstitution to act from and after the date hereof and to do any and all things and execute any and all documents on behalf of such Permitted Transferee which may be necessary, for convenient or appropriate to facilitate any matters under this Agreement, including: (a) execution of the documents and certificates required pursuant to this Agreement; (b) except to the extent provided in this Agreement, receipt and forwarding of notices and communications pursuant to this Agreement; (c) administration of the provisions of this Agreement; (d) any and all purposes consents, waivers, amendments or modifications deemed by Representative to be necessary or appropriate under this Agreement and the execution or delivery of any documents that may be necessary or appropriate in connection therewith; (e) taking actions Representative is authorized to take pursuant to the other provisions of this Agreement; (f) negotiating and compromising, on behalf of Permitted Transferee, any dispute that may arise under, and exercising or refraining from exercising any remedies available under, this Agreement and executing, on behalf of Permitted Transferee, any settlement agreement, release or other document with respect to such dispute or remedy; and (g) engaging attorneys, accountants, agents or consultants on behalf of Permitted Transferee in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative paying any fees related thereto on behalf of the Securityholders as provided hereunder shall be binding on all SecurityholdersPermitted Transferee, and Shareholder Representative Services LLC hereby accepts such appointmentsubject to reimbursement by Permitted Transferee. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 thirty (30) days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of ClosingCorporate Taxpayer.
Appears in 2 contracts
Sources: Tax Receivable Agreement (Andersen Group Inc.), Tax Receivable Agreement (Andersen Group Inc.)
Representative. (a) By The Funds are not partners or co-venturers, and all obligations of each Fund under this Agreement are several. No Fund shall be responsible for or in any way liable for the adoption acts or omissions, representations or agreements of, or shall be authorized to act for, any other Fund. In its capacity, the Agent is a “representative” of the Merger, and by virtue Funds within the meaning of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant term “secured party” as defined in the UCC. Each Fund authorizes the Agent to this Agreement, enter into each of the Securityholders irrevocably nominateCollateral Documents and the Intercreditor Agreement to which it is a party and to take all actions contemplated by such documents. Each Fund agrees that no Fund shall have the right individually to seek to realize upon the security granted by any Collateral Document, constitute it being understood and appoint agreed that such rights and remedies may be exercised solely by the Representative, as Agent for the benefit of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to Funds upon the terms of this Agreement and the Ancillary Agreements in Collateral Documents at the discretion direction of the RepresentativeMajority Funds. If Collateral is hereafter pledged by any Person as collateral security for the Obligations, the Agent is hereby authorized, and hereby granted a power of attorney, to do all things execute and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative deliver on behalf of the Securityholders as provided hereunder shall be binding Funds any Fund Documents necessary or appropriate to grant and perfect a Lien on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power Collateral in favor of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration or for the benefit of the mutual covenants Agent, on behalf of Funds. The Funds hereby irrevocably authorize the Agent, to release any Liens granted to or for the benefit of the Agent by the Obligors or any of their Subsidiaries on any Collateral:
(a) upon payment in full of the Obligations (other than contingent obligations not due and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.payable); or
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest that is sold or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out sold concurrently as part of or in connection with any sale permitted under the Representative’s enforcement of its rights under this Agreement Fund Documents. Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other agreement entered into than those expressly being released) upon (or obligations of the Obligors in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused respect of) all interests retained by the bad faithObligors, fraudincluding the proceeds of any sale, gross negligence or willful misconduct all of which shall continue to constitute part of the RepresentativeCollateral. Upon request by the Agent at any time, the Representative Majority Funds will reimburse confirm in writing the Securityholders the amount Agent’s authority to release particular types or items of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this AgreementCollateral pursuant hereto.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 2 contracts
Sources: Contribution Deferral Agreement, Contribution Deferral Agreement (YRC Worldwide Inc.)
Representative. (a) By the adoption their execution of the MergerLetter of Transmittal and/or Option Surrender Agreement, and by virtue approval of the execution Merger and adoption of this Agreement and/or their acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each the Company Equityholders hereby appoint the Representative as the representative, attorney-in-fact and agent of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes Company Equityholders in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of transactions contemplated by this Agreement and the Ancillary Agreements Escrow Agreement and in any litigation or arbitration involving this Agreement and/or the Escrow Agreement. In connection therewith, the Representative is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the Representative shall deem necessary or appropriate, and, except as otherwise expressly provided in this Agreement, shall have the power and authority to:
(i) act for the Company Equityholders with regard to all matters pertaining to this Agreement and the Escrow Agreement; including, employ, obtain and rely upon the advice of legal counsel, accountants and other professional advisors as the Representative, in its sole discretion, deems necessary or advisable in the discretion performance of the duties of the Representative;
(ii) act for the Company Equityholders to transact matters of litigation;
(iii) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement or the Escrow Agreement;
(iv) receive funds, make payments of funds, and to give receipts for funds;
(v) do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative refrain from doing any further act or deed on behalf of the Securityholders Company Equityholders that the Representative deems necessary or appropriate in its discretion relating to the subject matter of this Agreement or the Escrow Agreement as provided hereunder shall fully and completely as the Company Equityholders could do if personally present;
(vi) give and receive all notices required to be binding on all Securityholdersgiven or received by the Company Equityholders under this Agreement;
(vii) give any written direction to the Escrow Agent;
(viii) agree to, negotiate, enter into settlements and Shareholder Representative Services LLC hereby accepts such appointment. This power compromises of attorney and all authority hereby conferred is coupled comply with an interest, is granted arbitration awards and court orders with respect to claims for indemnification made by the Buyer under Article VII; and
(ix) receive service of process in consideration of connection with any claims under this Agreement and the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other eventEscrow Agreement.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholdersall Company Equityholders, and no Securityholder Company Equityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan Subject to the terms and its Affiliates conditions of this Agreement, upon the Closing, the Buyer shall wire to the Representative the Representative Expense Amount pursuant to wire instructions provided to the Buyer, which shall be able to rely conclusively on the instructions and decisions of held by the Representative as to agent in a segregated client account and shall be used for the determination purposes of paying directly, or reimbursing the Merger Consideration and the determinationRepresentative for, dispute and facilitating the disbursement of the Milestone Payments any expenses incurred pursuant to this Agreement, the Escrow Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) engagement agreement. The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting hold these funds separate from its gross negligence or willful misconductcorporate funds. The Representative Company Equityholders shall not be liable for any action receive interest or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless other earnings on amounts in the Representative from Expense Amount and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the Expense Fund and Company Equityholders irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest that may accrue on amounts in the Representative Expense Amount. The Company Equityholders acknowledge that the Representative is not providing any investment supervision, recommendations or earningsadvice. The Representative will hold these funds separate from shall have no responsibility or liability for any loss of principal of the Representative Expense Amount other than as a result of its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcygross negligence or willful misconduct. As soon as practicable following the completion later of (i) the final release of the Representative’s responsibilitiesfinal Net Milestone Payment or (ii) the final resolution of any claims made under this Agreement, the Representative will deliver any remaining balance of shall distribute the Expense Fund Representative Account Payment (if any) to Kardigan the Buyer and/or its paying agent for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”)Company Equityholders. For tax purposes, the Representative Expense Fund will Amount shall be treated as having been received and voluntarily set aside by the Securityholders Company Equityholders at the time of Closing. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount.
Appears in 2 contracts
Sources: Merger Agreement (Medicines Co /De), Merger Agreement (Medicines Co /De)
Representative. (a) By the adoption of the Merger, The Company hereby irrevocably constitutes and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and appoints ▇▇▇▇▇▇▇▇ relating ▇. ▇▇▇▇▇ (“Tyler”), as the Representative. As such, Tyler is authorized to act on behalf of the Company in connection with the transactions contemplated by the Transaction Documents, and in particular, and without limitation, to:
(i) take any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of the Members) and make any and all determinations which may be required or permitted in connection with the post-closing implementation of this Agreement and related agreements and the transactions contemplated hereby and thereby;
(ii) give and receive notices and communications thereunder;
(iii) negotiate, defend, settle, compromise and otherwise handle and resolve any and all claims and disputes with Buyer and any other Buyer Indemnified Party arising out of or in respect of the Transaction Documents, including, without limitation, claims and disputes pursuant to Sections 1.4 and 1.6 and Article VII of this Agreement;
(iv) receive all notices under the Transaction Documents;
(v) retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with all matters and things set forth or necessary with respect to the Transaction Documents and the transactions contemplated hereby and thereby; and
(vi) to make any other decision or election or exercise such rights, power and authority as are incidental to the foregoing.
(b) Each of the Members acknowledges and agrees that upon execution of this Agreement, upon any delivery by the Representative of any waiver, amendment, agreement, opinion, certificate or other document executed by the Representative, such Member shall be bound by such documents as fully as if such Member had executed and delivered such documents.
(c) Upon the death, disability or incapacity of the initial Representative appointed pursuant to Section 10.17(a), the Company shall appoint a successor Representative. The Representative may resign at any time; provided, however, that it must provide the Company prior written notice of such decision to resign. The Representative shall not receive compensation for service in such capacity.
(d) Any and all actions taken or not taken, exercises of rights, power or authority and any decision or determination made by the Representative in connection herewith shall be absolutely and irrevocably binding upon the Company as if the Company had taken such action, exercised such rights, power or authority or made such decision or determination in its individual capacity, and Buyer may rely upon such action, exercise of right, power, or authority or such decision or determination of the Merger Consideration Representative as the action, exercise, right, power, or authority, or decision or determination of such Person, and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, Company shall be binding upon the Securityholders, and no Securityholder shall not have the right to object, dissent, protest or otherwise contest the same. Buyer is hereby relieved from any liability to any Person for any acts done by the Representative and any acts done by Buyer in accordance with any decision, act, consent or instruction of the Representative.
(ce) Each Securityholder agrees that: (i) Kardigan and its Affiliates Member shall be able indemnify the Representative, in proportion to rely conclusively on the instructions and decisions such Member’s percentage ownership of the Representative Company as to the determination of the Merger Consideration and the determinationClosing, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) Losses arising out of or in connection with any claim or in connection with any appeal thereof, relating to the acts or omissions of Representative hereunder, under the Escrow Agreement or otherwise, except for such Losses that arise from the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Caesars Acquisition Co)
Representative. (a) By For purposes of this Agreement, the adoption of the MergerEscrowed Holders, and by virtue of the execution approval of the Mergers and this Agreement and/or acceptance and without any further action on the part of any benefits thereofsuch Escrowed Holder or the Company, including any consideration payable pursuant shall be deemed to this Agreement, each have consented to the appointment of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful exclusive agent and attorney in attorney-in-fact of each Securityholder, for all purposes in connection with under this Agreement, and any related agreementsthe Paying Agent Agreement, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, Escrow Agreement for and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of each such Escrowed Holder and the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder taking by Representative Services LLC hereby accepts such appointment. This power of attorney any and all authority hereby conferred is coupled with an interest, is granted in consideration of actions and the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act making of any one decisions required or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required permitted to be taken by the Representative under and subject to the Ancillary Agreementsterms, conditions and limitations, of this Agreement, the Paying Agent Agreement, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions Escrow Agreement, including the exercise of the Representative; power to (iia) Kardigan shall be prepare, execute and deliver this Agreement and the Transaction Documents to which it is a party, any document, certificate or other instrument required to file be delivered by or on behalf of the Escrowed Holders and negotiate any claims amendments hereto and thereto, (b) authorize delivery to Parent and the Surviving Company of the Escrow Fund or disputes related any 99 portion thereof, in satisfaction of Indemnification Claims, (c) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to such Indemnification Claims and to pursue remedies and Legal Proceedings in connection with any alleged breach of this Agreement, (d) resolve any Indemnification Claims, (e) make and settle determinations and calculations with respect to distributions and allocations of the Net Aggregate Consideration and any portion thereof, including, the Escrow Fund and the Representative Expense Amount, (f) to give and receive notices and communications hereunder, and (g) take all actions necessary in the judgment of Representative for the accomplishment of the foregoing (including engaging counsel, accountants or other advisors in connection with the Ancillary Agreements, including the determination foregoing matters) and all of the Merger Consideration other terms, conditions and limitations of this Agreement, the Paying Agent Agreement, and the determinationEscrow Agreement or that are specifically mandated by the terms of this Agreement. Notwithstanding the foregoing, dispute and disbursement of the Milestone Payments only with the Representative (shall have no obligation to act on behalf of the Securityholders) Escrowed Holders, except as expressly provided herein, in the Escrow Agreement and not with each Securityholder; (iii) all actionsthe Paying Agent Agreement, decisions and instructions for purposes of clarity, there are no obligations of the Representative shall be conclusive in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedule. The powers, immunities and binding upon all Securityholders and no Securityholder shall have any cause of action against rights to indemnification granted to the Representative; Representative Group hereunder: (ivi) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding irrevocable and survive the death, incompetence, bankruptcy or liquidation of any rights Escrowed Holder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Escrowed Holder of the whole or remedies that any Securityholder fraction of his, her or its interest in the Escrow Fund. The Escrowed Holders and their successors will be bound by all actions taken by Representative in connection with this Agreement, the Escrow Agreement, and the Paying Agent Agreement as if expressly confirmed and ratified in writing by the Escrowed Holders, all defenses which may be available to any Escrowed Holder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement, or the Paying Agent Agreement are waived, and Parent and the Surviving Company shall be entitled to rely on any action or decision of Representative.. Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees (collectively, the “Representative Group”), will incur liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other document believed by it to be genuine and to have been signed by the proper person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction in connection with the transactions contemplated hereby; and (v) acceptance or administration of the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such SecurityholderRepresentative’s rights responsibilities hereunder, whether pursuant to testamentary dispositionunder the Escrow Agreement or the Paying Agent Agreement, except its own willful misconduct, bad faith or gross negligence. In all questions arising under this Agreement, the laws of descent and distribution Escrow Agreement or otherwise.
the Paying Agent Agreement, Representative may: (di) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to rely on the advice of counsel, and Representative will not be liable to the Escrowed Holders for anything done, omitted or suffered in good faith by Representative based on such advice, (ii) rely upon the Allocation Schedule, (iii) rely upon any signature believed by it to be genuine, and (iv) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Escrowed Holder or other party. The Securityholders will Escrowed Holders shall, severally and not jointly, based on their Indemnity Pro Rata Share, indemnify, defend and hold harmless the Representative Group and its successors and assigns from and against any and all suits, actions, causes of action, losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs costs, judgments, amounts paid in settlement and expenses (including the reasonable attorneys’ fees and court costs and fees and expenses of counsel and experts and their staffs in connection with seeking recovery from insurers, and all expense expenses of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.,
Appears in 2 contracts
Sources: Merger Agreement (Oddity Tech LTD), Merger Agreement (Oddity Tech LTD)
Representative. (a) By The Company agrees that GS Capital Partners VI, L.P. shall be the adoption of the Merger, agent and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, attorney-in-fact for each of the Securityholders irrevocably nominate, constitute Stockholders and appoint the Representative, as of the Closing, Optionholders to act as the true Representative under this Agreement and lawful agent and attorney the other agreements contemplated hereby in fact of each Securityholder, for all purposes in connection accordance with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and Section 11.13. In the Ancillary Agreements in event of the discretion resignation, death or incapacity of the Representative, a successor representative reasonably satisfactory to Parent shall thereafter be appointed by an instrument in writing signed by Parent and such successor representative.
(b) The Representative is hereby authorized and empowered to act for, and on behalf of, any or all of the Stockholders and the Optionholders (with full power of substitution in the premises) in connection with such matters as are reasonably necessary for the consummation of the transactions contemplated in this Agreement and the other agreements contemplated hereby including: (i) to receive all payments owing to the Stockholders or the Optionholders under this Agreement, (ii) to the extent within the power of the Stockholders and Optionholders to do so, to terminate, amend, waive any provision of, or abandon, this Agreement or the other agreements contemplated hereby, (iii) to act as the representative of the Stockholders and the Optionholders to review and authorize all claims and disputes or question the accuracy thereof, (iv) to negotiate and compromise on their behalf with Parent any claims asserted hereunder and to authorize payments to be made with respect thereto, (v) to take such further actions as are authorized in this Agreement and the other agreements contemplated hereby, and (vi) in general, do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreementsagreements (including the Escrow Agreement and the other agreements contemplated in this Agreement), certificates, receipts, consents, elections, instructions and other instruments documents contemplated by, or deemed advisable by the Representative to be necessary or desirable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, the other agreements contemplated hereby and the transactions contemplated herein or therein. Parent and Merger Sub shall be binding upon entitled to rely on such appointment and to treat the Securityholders, Representative as the duly appointed attorney-in-fact of each Stockholder and no Securityholder Optionholder. Notices given to the Representative in accordance with the provisions of this Agreement shall have constitute notice to the right to object, dissent, protest or otherwise contest Stockholders and the sameOptionholders for all purposes under this Agreement.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions The appointment of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and is an agency coupled with an interest and is irrevocable and any action taken by the Representative pursuant to the authority granted in this Section 11.13 shall be enforceable effective and absolutely binding on each Stockholder and Optionholder notwithstanding any rights contrary action of or remedies that direction from such Stockholder or Optionholder, except for actions or omissions of the Representative constituting willful misconduct or gross negligence. The death or incapacity, or dissolution or other termination of existence, of any Securityholder may have Stockholder or Optionholder shall not terminate the authority and agency of the Representative. Parent, Merger Sub and any other party to any document contemplated by this Agreement in connection dealing with the transactions contemplated hereby; Representative may conclusively and (v) absolutely rely, without inquiry, upon any act of the provisions Representative as the act of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution Stockholder or otherwiseOptionholder.
(d) The Representative will incur no liability shall not be liable to any Stockholder, Optionholder or to any other Person (other than Parent or Merger Sub), with respect to any action taken or omitted to be taken by the Representative in its role as Representative under or in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting Agreement, unless such action or omission results from its or arises out of willful misconduct or gross negligence or willful misconduct. The on the part of the Representative, and the Representative shall not be liable for to any action Stockholder or omission pursuant to Optionholder in the advice event that, in the exercise of counsel. The Securityholders will indemnifyhis or its reasonable judgment, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, believes there will not be adequate resources available to cover potential costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of to contest a claim made by Parent or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this AgreementMerger Sub.
(e) The Representative may resign at any time upon 30 days’ written noticeshall receive reimbursement from, and may be removed indemnified from, the Representative Escrow Account, for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; providedall expenses, howevercharges and liabilities, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇including reasonable attorneys’ fees, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated incurred by the Representative in the performance or discharge of its duties pursuant to this Section 11.13 (the “Expense FundRepresentative Expenses”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Interline Brands, Inc./De)
Representative. (a) By The Company Equityholders hereby appoint the adoption Representative as the representative, attorney-in-fact and agent of the Merger, and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes Company Equityholders in connection with this Agreement, the sale of the Company Shares and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of other transactions contemplated by this Agreement and the Ancillary Agreements Escrow Agreement and in any litigation or arbitration involving this Agreement and/or the discretion of Escrow Agreement. In connection therewith, the RepresentativeRepresentative is authorized to do or refrain from doing all further acts and things, and to do execute all things such documents as the Representative shall deem necessary or appropriate, and, except as otherwise expressly provided in this Agreement, shall have the power and authority to:
(i) act for the Company Equityholders with regard to perform all actsmatters pertaining to this Agreement and the Escrow Agreement;
(ii) act for the Company Equityholders to transact matters of arbitration or litigation;
(iii) execute and deliver all amendments, including (1) amending waivers, ancillary agreements, certificates and documents that the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating Representative deems necessary or appropriate in connection with the disbursement sale of the Milestone Payments Company Shares and the consummation of the other transactions contemplated by this Agreement or the Escrow Agreement;
(5iv) executing receive funds, make payments of funds, and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, give receipts for funds;
(v) do or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative refrain from doing any further act or deed on behalf of the Securityholders Company Equityholders that the Representative deems necessary or appropriate in its discretion relating to the subject matter of this Agreement or the Escrow Agreement as provided hereunder shall fully and completely as the Company Equityholders could do if personally present;
(vi) give and receive all notices required to be binding on all Securityholdersgiven or received by the Company Equityholders under this Agreement;
(vii) give any written direction to the Escrow Agent;
(viii) agree to, negotiate, enter into settlements and Shareholder Representative Services LLC hereby accepts such appointment. This power compromises of attorney and all authority hereby conferred is coupled comply with an interest, is granted arbitration awards and court orders with respect to claims for indemnification made by the Buyer under Article VII; and
(ix) receive service of process in consideration of connection with any claims under this Agreement and the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other eventEscrow Agreement.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholdersall Company Equityholders, and no Securityholder Company Equityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: At the Closing, the Buyer shall pay the Representative Expense Amount to the Representative, which Representative Expense Amount shall be maintained by the Representative in a segregated account. The Representative shall be reimbursed by the Company Equityholders (and not by the Buyer or the Company) for reasonable out-of-pocket expenses incurred in the performance of its duties (including the reasonable fees and expenses of counsel) under this Agreement from the Representative Fund and, if such fund is insufficient to pay such expenses, from the first proceeds from the Escrow Fund or Net Milestone Payments otherwise available for distribution to the Company Equityholders. Upon the determination of the Representative that the Representative Fund is no longer necessary in connection with any claim for indemnification under Article VII or any dispute regarding Milestone Payments, the Representative shall distribute to the Company Equityholders (solely out of the Representative Fund) the Representative Account Payment. The Representative shall hold, invest, reinvest and disburse the Representative Fund in trust for all of the Company Equityholders, and the Representative Fund shall not be used for any other purpose and shall not be available to the Buyer to satisfy any claims hereunder.
(d) The Representative shall treat confidentially and not use other than in the performance of its duties as the Representative and not disclose any information disclosed to it pursuant to this Agreement to anyone except as required by Law, provided that (i) Kardigan the Representative may disclose to legal counsel and other advisors under an obligation of confidentiality and non-use in such advisor’s capacity as such (for the purpose of advising the Representative and the Company Equityholders on any information disclosed to the Representative pursuant to this Agreement), (ii) the Representative (or legal counsel or other advisor to whom information is disclosed pursuant to clause (i) above) may disclose in any Legal Proceeding relating to this Agreement or the transactions contemplated hereby (or, in either case, discussion in preparation therefor) any information disclosed to the Representative pursuant to this Agreement and (iii) the Representative may disclose to its Affiliates professional advisers and any member of its board (but not to any other Person, including any investor in any of the foregoing Persons) any information disclosed to the Representative, subject to the Persons to whom the disclosure is to be made agreeing with the Buyer in writing to restrictions on the disclosure and use of such information consistent with the restrictions to which the Representative is subject pursuant to this Section 1.7(d).
(e) The Company Equityholders may from time to time appoint another person to act as their representative, provided that such appointment shall not take effect until it has been notified to the Buyer in writing signed by or on behalf of holders of Company Securities who held, as of immediately prior to the Closing, a majority (by voting power) of the then outstanding Company Securities) (the “Required Sellers”), and such substituted representative shall be able deemed to be the Representative for all purposes of this Agreement. Upon any replacement of the Representative, the Representative being replaced shall transfer to the new Representative the balance of any unexpended Representative Expense Amount.
(f) Each Company Equityholder agrees that:
(i) the Buyer shall be entitled to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration Final Closing Adjustment and the determinationAdjusted Purchase Price, dispute and facilitating the disbursement settlement of the Milestone Payments pursuant to any disputes or claims under this Agreement and the Escrow Agreement, or any other actions required or permitted to be taken by the Representative under the Ancillary Agreementshereunder, and no Securityholder party hereunder shall have any cause of action against Kardigan or its Affiliates the Buyer for any action taken by such Person the Buyer in reliance upon the instructions or decisions of the Representative; ;
(ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 1.7 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder Company Equityholder may have in connection with the sale of the Company Shares and the other transactions contemplated herebyby this Agreement;
(iii) remedies available at Law for any breach of the provisions of this Section 1.7 are inadequate; therefore, the Buyer shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if the Buyer brings an action to enforce the provisions of this Section 1.7; and
(viv) the provisions of this Section 1.4 1.7 shall be binding upon the executors, heirs, legal representatives representatives, personal representatives, successor trustees and successors of each SecurityholderCompany Equityholder, and any references in this Agreement to a Securityholder Company Equityholder shall mean and include the successors to such Securityholder’s the rights of each applicable Company Equityholder hereunder, whether pursuant to testamentary disposition, the laws Laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Medicines Co /De)
Representative. (a) By GS Capital Partners VI Fund, L.P. shall be the adoption of the Merger, agent and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, attorney-in-fact for each of the Securityholders irrevocably nominate, constitute Stockholders and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf Optionholders to act according to as Representative under this Agreement and the other agreements contemplated hereby in accordance with the terms of this Agreement and Section 11.12. In the Ancillary Agreements in event of the discretion resignation, death or incapacity of the Representative, a successor Representative reasonably satisfactory to Parent shall thereafter be appointed by an instrument in writing signed by Parent and such successor Representative.
(b) The Representative is hereby authorized and empowered to act for, and on behalf of, any or all of the Stockholders and the Optionholders (with full power of substitution in the premises) in connection with such matters as are reasonably necessary for the consummation of the transactions contemplated in this Agreement and the other agreements contemplated hereby including, without limitation, (i) to receive all payments owing to the Stockholders or the Optionholders under this Agreement, (ii) to terminate, amend, waive any provision of, or abandon, this Agreement or the other agreements contemplated hereby, (iii) to act as the representative of the Stockholders to review and authorize all claims and disputes or question the accuracy thereof, (iv) to negotiate and compromise on their behalf with Parent any claims asserted thereunder and to authorize payments to be made with respect thereto, (v) to take such further actions as are authorized in this Agreement or the other agreements contemplated hereby, and (vi) in general, do all things and to perform all acts, including (1) amending the Ancillary Agreementsincluding, (2) waiving rightswithout limitation, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreementsagreements (including the Escrow Agreement and the other agreements contemplated in this Agreement), certificates, receipts, consents, elections, instructions and other instruments documents contemplated by, or deemed advisable by the Representative to be necessary or desirable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, the other agreements contemplated hereby and the transactions contemplated herein or therein. Parent and Merger Sub shall be binding upon entitled to rely on such appointment and to treat the Securityholders, Representative as the duly appointed attorney-in-fact of each Stockholder and no Securityholder Optionholder. Notices given to the Representative in accordance with the provisions of this Agreement shall have constitute notice to the right to object, dissent, protest or otherwise contest the sameStockholders and Optionholders for all purposes under this Agreement.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions The appointment of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and is an agency coupled with an interest and is irrevocable and any action taken by the Representative pursuant to the authority granted in this Section 11.12 shall be enforceable effective and absolutely binding on each Stockholder and Optionholder notwithstanding any rights contrary action of or remedies that direction from such Stockholder or Optionholder. The death or incapacity, or dissolution or other termination of existence, of any Securityholder may have Stockholder or Optionholder shall not terminate the authority and agency of the Representative. Parent, Merger Sub and any other party to any document contemplated by this Agreement in connection dealing with the transactions contemplated hereby; Representative may conclusively and (v) absolutely rely, without inquiry, upon any act of the provisions Representative as the act of this Section 1.4 the Stockholder or Optionholder and shall be binding upon relieved from any liability to any Person for any acts done by them in accordance with such act of the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseRepresentative.
(d) The Representative will incur no liability shall not be liable to any Stockholder, Optionholder or to any other Person (other than Parent or Merger Sub), with respect to any action taken or omitted to be taken by the Representative in its role as Representative under or in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting Agreement, unless such action or omission results from its or arises out of willful misconduct or gross negligence or willful misconduct. The on the part of the Representative, and the Representative shall not be liable for to any action Stockholder or omission pursuant to Optionholder in the advice event that, in the exercise of counsel. The Securityholders will indemnifyits reasonable judgment, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, believes there will not be adequate resources available to cover potential costs and expenses (including to contest a claim made by Parent or Merger Sub against the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of Stockholders or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this AgreementOptionholders.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on use the decisions funds constituting the Representative Expense Amount, for any and actions all expenses, charges and liabilities, including, but not limited to, reasonable attorneys’ fees, incurred by the Representative in the performance or discharge of its duties pursuant to this Section 11.12 (the prior “Representative as described hereinExpenses”).
(f) Pursuant to Section 2.2(c), at Each Letter of Transmittal shall provide that the Closing, Kardigan Representative shall deposit, on behalf be the agent and attorney-in-fact for each of the Securityholders, Stockholders and the Expense Fund Amount Optionholders with full power and authority to an account designated by the act as Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the Expense Fund under 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time terms of Closingthis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Michael Foods Group, Inc.), Merger Agreement (Post Holdings, Inc.)
Representative. (a) By the adoption Each of the Merger, Shareholders approves the designation of -------------- and by virtue designates the Representative as the representative of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute Shareholders and appoint the Representative, as of the Closing, as the true attorney-in-fact and lawful agent for and attorney in fact on behalf of each Securityholder, for all purposes in connection Shareholder with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according respect to the terms certification of Closing Stockholders' Equity and Closing Cash under Section 1.4 hereof and claims for indemnification under this Agreement Article VIII and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken taking by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney any and all authority hereby conferred is coupled with an interest, is granted in consideration of actions and the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act making of any one decisions required or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required permitted to be taken by the Representative under this Agreement, including, without limitation, the Ancillary Agreementsexercise of the power to: (a) agree to, negotiate, enter into settlements and compromises of, demand arbitration of, and no Securityholder shall comply with orders of courts and awards of arbitrators with respect to, such claims; (b) arbitrate, resolve, settle or compromise any claim for indemnity made pursuant to Article VIII; and (c) take all actions necessary in the judgment of the Representative for the accomplishment of the foregoing. The Representative will have any cause authority and power to act on behalf of action against Kardigan each Shareholder with respect to the disposition, settlement or its Affiliates for other handling of all claims under Article VIII and all rights or obligations arising under Article VIII. Shareholders will be bound by all actions taken and documents executed by the Representative in connection with Article VIII, and DoveBid will be entitled to rely on any action taken by such Person in reliance upon the instructions or decisions decision of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or . In performing the functions specified in connection with the Ancillary Agreementsthis Agreement, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf will not be liable to any Shareholder in the absence of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconductmisconduct on the part of the Representative. The Shareholders shall severally indemnify the Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold him harmless against any loss, liability or expense incurred without gross negligence or willful misconduct on the part of the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement acceptance or administration of its rights under this Agreement or any other agreement entered into his duties hereunder. Any out-of-pocket costs and expenses reasonably incurred by the Representative in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered actions taken by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable pursuant to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to terms of Article VIII (including without limitation the Securityholders; provided, that while hiring of legal counsel and the Representative may incurring of legal fees and costs) will be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided by Shareholders to the Representative hereunderpro rata in proportion to their respective percentage equity interests in the Company. The foregoing indemnities will survive Shareholders shall have the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent right to replace ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇ ▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior as Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred another representative by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders written notice in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing10.6 below.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Dovebid Inc), Stock Purchase Agreement (Dovebid Inc)
Representative. (a) By the adoption Each of the Merger, Members approves the designation of and by virtue designates the Representative as the representative of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute Members and appoint the Representative, as of the Closing, as the true attorney-in-fact and lawful agent for and attorney in fact on behalf of each Securityholder, Members with respect to claims for all purposes in connection with indemnification under this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement Article VIII and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken taking by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney any and all authority hereby conferred is coupled with an interest, is granted in consideration of actions and the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act making of any one decisions required or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required permitted to be taken by the Representative under this Agreement, including, without limitation, the Ancillary Agreementsexercise of the power to: (a) agree to, negotiate, enter into settlements and compromises of, demand arbitration of, and no Securityholder shall comply with orders of courts and awards of arbitrators with respect to, such claims; (b) arbitrate, resolve, settle or compromise any claim for indemnity made pursuant to Article VIII; and (d) take all actions necessary in the judgment of the Representative for the accomplishment of the foregoing. The Representative will have any cause authority and power to act on behalf of action against Kardigan each Member with respect to the disposition, settlement or its Affiliates for other handling of all claims under Article VIII and all rights or obligations arising under Article VIII. The Members will be bound by all actions taken and documents executed by the Representative in connection with Article VIII, and DoveBid will be entitled to rely on any action taken by such Person in reliance upon the instructions or decisions decision of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or . In performing the functions specified in connection with the Ancillary Agreementsthis Agreement, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf will not be liable to any Member in the absence of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconductmisconduct on the part of the Representative. The Members shall severally indemnify the Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold him harmless against any loss, liability or expense incurred without gross negligence or willful misconduct on the part of the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement acceptance or administration of its rights under this Agreement or any other agreement entered into his duties hereunder. Any out-of-pocket costs and expenses reasonably incurred by the Representative in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered actions taken by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable pursuant to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to terms of Article VIII (including without limitation the Securityholders; provided, that while hiring of legal counsel and the Representative may incurring of legal fees and costs) will be paid from by the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided Members to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority pro rata in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent proportion to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors their respective percentage equity interests in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of ClosingCompanies.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Dovebid Inc), Membership Interest Purchase Agreement (Dovebid Inc)
Representative. (a) By the adoption of the Merger, and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each Each of the Securityholders hereby irrevocably nominate, constitute and appoint Fortis Advisors, LLC as the exclusive agent and true and lawful attorney-in-fact of the Securityholders, with full power of substitution, to act in the name, place and stead of the Securityholders for purposes of executing any documents and taking any actions that the Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement, the Escrow Agreement and the Representative Engagement Agreement including in connection with any payment pursuant to Section 1.6 or claim for indemnification under Section 5.5 or Section 7. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Securityholders, except as expressly provided herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedule. Fortis Advisors LLC hereby accepts its appointment as the Representative. The Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons.
(b) Each of the Securityholders grants to the Representative full authority to execute, deliver, acknowledge, certify and file on behalf of the Securityholders (in the name of any or all of the Securityholders or otherwise) any and all documents that the Representative may, in its sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as the Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 8.1(a). Notwithstanding anything to the contrary contained in this Agreement or in any other Contract executed in connection with the Transactions, each Indemnitee shall be entitled to deal exclusively with the Representative on all matters relating to Sections 1.3, 5.5 and 7 and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Securityholders by the Representative and on any other action taken or purported to be taken on behalf of any Securityholders by the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each fully binding upon such Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including .
(1c) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such All actions taken by the Representative under this Agreement Representative or the Representative Engagement Agreement shall be binding upon each Securityholder and such Securityholder’s successors as if expressly confirmed and ratified in writing by such Securityholder, and all defenses which may be available to any Securityholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(d) The power of attorney granted in Section 8.1(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Representative; and (iii) shall survive the dissolution, death or incapacity of each of the Securityholders.
(e) Securityholders with a majority in interest (determined based in accordance with their respective ownership of Shares as of immediately prior to Closing) have the right to remove the Representative at any time. If the Representative shall resign, die, become disabled or otherwise be unable to fulfill its responsibilities as agent of the Securityholders, or be removed, then a majority in interest of the Securityholders (determined based in accordance with their respective ownership of Shares as of immediately prior to the Closing) shall, within ten (10) days after such death, disability or removal, appoint a successor agent for the Securityholders and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the “Representative” for purposes of this Agreement.
(f) Certain Securityholders have entered into an engagement agreement (the “Representative Engagement Agreement”) with the Representative to provide direction to the Representative in connection with its services under this Agreement, the Escrow Agreement and the Representative Engagement Agreement (such Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). To the maximum extent permissible by applicable law, neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Representative Group”) shall incur any liability of any kind to any Securityholder or any other Person with respect to any action or inaction taken or failed to be taken, by it or by its agents, in connection with its services as the Representative, except with respect to its own willful misconduct or gross negligence. The Representative may (i) act in reliance upon any signature believed by it to be genuine and may reasonably assume that such person has proper authorization to sign on behalf of the Securityholders as provided hereunder shall be binding applicable Securityholder or other party and (ii) rely upon the Spreadsheet. In all questions arising under this Agreement or the transactions contemplated hereby, the Representative may rely on all Securityholdersthe advice of counsel, accountants or other skilled persons, and Shareholder the Representative Services LLC hereby accepts will not be liable to any Securityholder or any other Person for anything done, omitted or suffered in good faith by the Representative based on such appointmentadvice of counsel, accountants or other skilled persons, as the case may be. This power No provision of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration this Agreement or any of the mutual covenants transactions contemplated hereby shall require the Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement, the Escrow Agreement or any of the transactions contemplated hereby and agreements made hereinthereby. Furthermore, shall be irrevocable and the Representative shall not be terminated required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other eventthe Representative in performing such actions.
(bg) All decisions The Representative Group shall be indemnified, defended and actions held harmless by the Securityholders from and against any and all losses, claims, damages, liabilities, fees, costs, expenses (including reasonable legal fees and disbursements and costs and including costs incurred in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (“Representative Expense”) arising from, based upon or with respect the Representative’s execution and performance of this Agreement, the Escrow Agreement, the Representative Engagement Agreement or any of the Transactions, or otherwise in connection with acting as the Representative, including in each case as such Representative Expense is incurred. To the extent any agreement between Representative Expenses are not paid or reimbursed from the Representative’s Expense Fund, upon any payment to the Securityholders of the Escrow Amount, the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to objectrecover the Representative Expenses from such amount before any distribution to the Securityholders, dissentor in the event there are insufficient funds, protest directly from the Securityholders, severally and not jointly, on a pro rata basis based on their respective Pro Rata Amount. All of the immunities and powers granted to the Representative under this Agreement shall survive the resignation or otherwise contest removal of the same.
(c) Each Securityholder agrees thatRepresentative or any member of the Advisory Group and the Closing and/or any termination of this Agreement. The powers, immunities and rights to indemnification granted to the Representative Group in this Agreement: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights irrevocable and survive the death, incompetence, bankruptcy or remedies that any liquidation of the respective Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding on any successor thereto and (ii) shall survive the delivery of an assignment by any Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount.
(h) To the extent the Representative receives documents, spreadsheets or other forms of information from any party and the Representative is required to deliver any such document, spreadsheet or other form of information to another party, the Representative is not responsible for the content of such materials, nor is the Representative responsible for confirming the accuracy of any information contained in such materials or reconciling the content of any such materials with any other documents, spreadsheets or other information. The Representative shall not be liable to any Securityholder for any apportionment or distribution of payments authorized by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Securityholder to whom payment was due, but not made, shall be to recover from other Securityholders any payment in excess of the amount to which they are determined to have been entitled pursuant to this Agreement; provided, however, that the foregoing recourse limitation shall not apply in any case where such error was due to fraud or willful misconduct by the Representative. The Representative shall be entitled to rely upon the executorsPro Rata Amount in the Spreadsheet when setting forth any apportionment or distribution of payments required to be made pursuant to this Agreement.
(i) At the Closing, heirsand without any act of any Securityholder, legal representatives Purchaser shall deposit the Representative’s Expense Fund Amount with the Representative, to be held by the Representative and successors released on the instructions of the Representative for the payment of Representative Expenses incurred by the Representative in performing its duties pursuant to this Agreement, the Escrow Agreement or the Representative Engagement Agreement. Purchaser will be deemed to have contributed on behalf of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include his, her or its Pro Rata Amount of the successors to such SecurityholderRepresentative’s rights hereunder, whether pursuant to testamentary disposition, Expense Fund Amount for retention by the laws of descent and distribution or otherwise.
(d) Representative. The Representative will incur is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability in connection with its services pursuant to this Agreement and for any related agreements except to loss of principal of the extent resulting from Representative’s Expense Fund other than as a result of its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the Representative’s Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they such interest. Subject to Advisory Group approval, the Representative may contribute funds to the Representative’s Expense Fund from any consideration otherwise have had in any such interest or earnings. The Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available distributable to its creditors in the event of bankruptcySecurityholders. As soon as practicable following reasonably determined by the completion Representative that the Representative’s Expense Fund is no longer required to be withheld, any of the Representative’s responsibilitiesExpense Fund Amount originally deposited with the Representative at the Closing that has not been used by the Representative pursuant to the terms of this Agreement shall be released by the Representative for distribution by the Paying Agent to the Securityholders, in each case in proportion to their respective Pro Rata Amount of such remaining funds, if any. For the avoidance of doubt, the Representative will deliver any remaining balance Representative’s Expense Fund Amount shall not be deemed part of the Escrow Fund and shall not be available to satisfy any indemnification or other obligations to Purchaser hereunder. None of Purchaser or any of its Affiliates shall have any liability or obligation with respect to the use of the Representative’s Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside Amount by the Securityholders at the time of ClosingRepresentative.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Vir Biotechnology, Inc.), Securities Purchase Agreement (Vir Biotechnology, Inc.)
Representative. (a) By the adoption of the Merger, Effective upon and by virtue of the execution Required Stockholder Approval and his, her or its acceptance of the consideration payable under the terms and conditions of this Agreement, and without any further act of any of the Company Securityholders, each Company Securityholder hereby appoints the Representative as his, her or its attorney-in-fact and agent for and on behalf of such Company Securityholder for purposes of this Agreement and/or acceptance of and any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute other agreements and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes documents executed or delivered in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all The Representative shall take such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under this Agreement and any other agreements and documents executed or delivered in connection with this Agreement and such other actions on behalf of such Company Securityholder as it may deem necessary or appropriate in connection with or to consummate the Ancillary Agreementstransactions contemplated hereby or thereby, including, without limitation, (i) accepting service of process on the Company Securityholders, (ii) executing and delivering this Agreement, and no any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Securityholder as compared to other Company Securityholders shall require the prior written consent of such Company Securityholder), (iii) receiving or providing notices on behalf of the Company Securityholders with respect to any matter or Actions arising out of or relating to this Agreement, or the transactions contemplated hereby, (iv) taking all actions and making all filings on behalf of such Company Securityholders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement, (v) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement on behalf of such Company Securityholders, (vi) interpreting all terms of this Agreement; (vii) instituting, prosecuting and/or defending lawsuits; (viii) in connection with any of the foregoing actions, engaging and hiring accountants, auditors, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate properly to discharge the Representative’s duties and obligations hereunder and (ix) taking all other actions that are either necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement. The Representative hereby accepts such appointment. The appointment of the Representative as each Company Securityholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Company Securityholder with regard to this Agreement and any other agreements or documents executed or delivered in connection with this Agreement. The Representative is the sole and exclusive representative of each of the Company Securityholders for any purpose provided for by this Agreement. Representative shall be bound by the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, that the Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Company Securityholders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company Securityholders. Each Company Securityholder shall promptly provide written notice to the Representative of any change of address of such Company Securityholder.
(b) A decision, act, consent or instruction of the Representative hereunder shall constitute a decision, act, consent or instruction of all Company Securityholders and shall be final, binding and conclusive upon each such Company Securityholder, and Parent and the Surviving Company may rely upon any such decision, act, consent or instruction of the Representative as being the decision, act, consent or instruction of each and every such Company Securityholder. Parent, the Surviving Company shall be relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Representative.
(c) Certain Company Securityholders have entered into a letter agreement with the Representative to provide direction to the Representative in connection with the performance of its services under this Agreement (such Company Securityholders, included their individual representatives, hereinafter referred to as the “Advisory Group”). Neither the Representative and its members, managers, directors, officers, contractors, agents and employees) nor any cause member of action against Kardigan or its Affiliates for the Advisory Group (collectively, the “Representative Group”) shall incur liability with respect to any action taken or suffered by such Person any Company Securityholder in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Representative to be genuine and to have been signed by such Company Securityholder (and shall have no responsibility to determine the instructions authenticity thereof), nor for any other action or decisions inaction, except the gross negligence, bad faith or willful misconduct of the Representative; Representative Group. In all questions arising under this Agreement, the Representative may rely on the advice of outside counsel, and the Representative shall not be liable to any Company Securityholder for anything done, omitted or suffered in good faith by Representative based on such advice. No provision of this Agreement shall require the Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Company Securityholders.
(iid) Kardigan Each Company Securityholder shall be required to file severally, but not jointly (based on such Company Securityholder’s Distribution Allocation), indemnify the Representative Group and negotiate hold the Representative Group harmless against any claims loss, liability or disputes related to expense incurred without gross negligence, bad faith or willful misconduct on the part of the Representative Group and arising out of or in connection with the Ancillary Agreementsacceptance or administration of the Representative’s duties hereunder, including the determination reasonable fees and expenses of any legal counsel or other advisors reasonably retained by the Representative. Notwithstanding the foregoing, the Representative’s standard hourly rates and all out-of-pocket fees and expenses incurred by the Representative in performing its duties shall be borne by the Company Securityholders paid in accordance with their respective Distribution Allocations of such fees and expenses out of any Earnout Payment otherwise distributable to the Company Securityholders, and, thereafter, directly from the Company Securityholders, in accordance with their respective Distribution Allocations.
(e) At any time Stockholders representing at least a majority of the Merger Consideration equity securities of the Company outstanding immediately prior to the Effective Time may, by written consent, appoint another Person as Representative. Notice together with a copy of the written consent appointing such Person and bearing the signatures of such Stockholders must be delivered to Parent not less than ten (10) days prior to such appointment. Such appointment shall be effective upon the later of the date indicated in the consent or the date ten (10) days after such consent is received by Parent.
(f) In the event that the Representative becomes unable or unwilling to continue in his or its capacity as the Representative, or if the Representative resigns as a Representative, Stockholders representing at least a majority of the equity securities of the Company outstanding immediately prior to the Effective Time may, by written consent, appoint a new representative as the Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of such Stockholders must be delivered to Parent. Such appointment shall be effective upon the later of the date indicated in the consent or the date ten (10) days after such consent is received by Parent.
(g) The immunities and rights to indemnification shall survive the resignation or removal of Representative or any member of the Advisory Group and the determinationClosing and/or any termination of this Agreement. The Representative shall be entitled to: (i) rely upon the Distribution Schedule, dispute (ii) rely upon any signature believed by it to be genuine, and disbursement of the Milestone Payments only with the Representative (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the Securityholdersapplicable Company Securityholder or other party. The grant of authority provided for herein (A) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and is coupled with an interest and shall be enforceable notwithstanding irrevocable and survive the death, incompetency, bankruptcy or liquidation of any rights Company Securityholder, (B) shall survive the delivery of an assignment by any Company Securityholder of the whole or remedies that any Securityholder may have fraction of his, her or its interest in connection with the transactions contemplated hereby; any post-Closing consideration and (vC) shall survive the consummation of the Mergers. The provisions of this Section 1.4 8.1 shall be binding upon the executors, heirs, legal representatives representatives, successors and successors assigns of each Company Securityholder, and any references in this Agreement to a any Company Securityholder or the Company Securityholders shall mean and include the successors to such Company Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 2 contracts
Sources: Merger Agreement (Aytu Bioscience, Inc), Merger Agreement (Aytu Bioscience, Inc)
Representative. (a) By At the adoption of the MergerEffective Time, and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements▇▇▇▇▇ ▇. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to will be constituted and appointed as the determination Representative, and the Representative hereby accepts such appointment. Each Indemnifying Securityholder and Indemnifying Founders, by virtue of its adoption of this Agreement and approval of the Merger Consideration Merger, will be deemed to have appointed and constituted the determination, dispute Representative as their agent and facilitating true and lawful attorney-in-fact with the disbursement powers and authority as set forth in this Agreement. All such actions of the Milestone Payments pursuant 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 the Indemnifying Securityholders. The Representative will be the exclusive agent for and on behalf of the Indemnifying Securityholders and Indemnifying Founders to (1) enter into the Escrow Agreement; (2) 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, shall the Escrow Agreement or any of the other documents contemplated by the Transactions; (3) authorize deliveries to Parent of cash or other property from the Escrow Funds and legally bind each Indemnifying 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); (4) object to such claims in accordance with Section 7.6 and Section 7.13; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) 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; (7) subject to Section 6.3, execute for and on behalf of each Indemnifying 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 binding upon paid to the SecurityholdersIndemnifying 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 shall or Indemnifying Founder 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. 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 Securityholder or Indemnifying Founder or by operation of Law, whether by the death or incapacity of any Indemnifying 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 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 objectrecover General Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Period, dissentthe resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, protest 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 otherwise contest communications to or from the sameRepresentative will constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicable.
(b) The Person serving as the Representative may be replaced from time to time by the holders of a majority in interest of the cash then on deposit in the General Escrow 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 Representative may be filled by the holders of a majority in interest of the cash then on deposit in the General Escrow Fund. If the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnifying 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. 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 Securityholders or Indemnifying Founders, as applicable, at their addresses last known to Parent.
(c) Each The Representative will not be liable to any Indemnifying Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates Indemnifying Founder for any action taken by such Person in reliance upon the instructions act done or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or omitted in connection with the Ancillary Agreements, including Representative’s services under this Agreement or the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have Escrow Agreement while acting in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, good faith and any references act done or omitted in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection accordance with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counselcounsel or other expert will be conclusive evidence of such good faith. The Indemnifying Securityholders and Indemnifying Founders, as applicable, will indemnifyseverally, defend and hold harmless but not jointly (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 against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the reasonable fees and expenses of counsel and experts and their staffs and all reasonable expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement execution and performance of its rights under this Agreement or any other agreement entered into in connection with and the transactions contemplated by this Escrow Agreement, in each case in such person’s capacity as the Representative only, and as such Representative Loss is suffered or 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 bad faith, fraud, gross negligence or willful misconduct bad faith of the Representative, 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 fraud, bad faith, gross negligence or willful misconductbad 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 (i) the funds in the Expense Representative Fund and (ii) any other funds that become payable to the Securityholders under this Agreement amounts in the General Escrow Fund at such time as such remaining amounts in the General Escrow Fund would otherwise be distributable to the Indemnifying Securityholders; provided. With respect to Litigation Liability Claims, that while 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 aforementioned sources of fundsRepresentative 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 Securityholders Indemnifying Securityholders, Indemnifying Founders or otherwise. Notwithstanding anything in this Agreement to The Indemnifying Securityholders and Indemnifying Founders acknowledge and agree that the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(ed) The Representative may resign at will have reasonable access to information about the Surviving 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 its duties and exercising its rights hereunder; provided that the Representative will treat confidentially and not use or disclose the terms of this Agreement or any time upon 30 days’ written noticenonpublic information from or about Parent, Surviving Entity, or any Indemnified Person to anyone (except to the Indemnifying Securityholders, Indemnifying Founders or the Representative’s employees, attorneys, accountants, financial advisors or authorized representatives on a need to know basis, 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 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 prior to being provided access to such information 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 may be removed for all files maintained by the Company’s or any reason of its Subsidiaries’ law firm or no reason by approval from and by written consent of a majority in interest legal counsel ) (the “Communications”) will not become attorney-client privileged communications of the StockholdersSurviving Entity, but will instead become attorney-client privileged Communications of the Representative; provided, however, that in no event shall 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 be removed without hereby agrees to waive the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal attorney client privilege with respect to any attorney client communications received or sent by any of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇ ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇ ▇▇▇▇▇▇▇▇; provided, that until such notice is received▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall be entitled that would reflect Knowledge of the Company or information Known to rely the Company relating to such allegation. The Representative will cause all Communications stored on the decisions Company’s servers prior to the Closing to be preserved.
(e) 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 actions (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 Representative written consent of the Indemnifying Securityholder(s) party thereto or effected thereby, as described hereinthe case may be.
(f) Pursuant By its signature to Section 2.2(c)this Agreement, at the Closinginitial Representative hereby accepts the appointment contained in this Agreement, Kardigan shall depositas confirmed and extended by this Agreement, on behalf and agrees to act as the Representative and to discharge the duties and responsibilities of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign pursuant to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event terms of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closingthis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Emc Corp), Merger Agreement (Vmware, Inc.)
Representative. (a) By The Person designated by the adoption of Stockholders to act as Representative shall be the Merger, agent and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, attorney-in-fact for each of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, Stockholders to act as the true Representative under this Agreement and lawful agent and attorney the other agreements contemplated hereby in fact of each Securityholder, for all purposes in connection accordance with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and Section 11.13. In the Ancillary Agreements in event of the discretion resignation, death or incapacity of the Representative, a successor Representative reasonably satisfactory to Parent shall thereafter be appointed by an instrument in writing signed by Parent and such successor Representative.
(b) The Representative is hereby authorized and empowered to act for, and on behalf of, any or all of the Stockholders (with full power of substitution in the premises) in connection with such matters as are reasonably necessary for the consummation of the transactions contemplated by this Agreement and the other agreements contemplated hereby including: (i) to receive all payments owing to the Stockholders under this Agreement, (ii) to terminate, amend, waive any provision of, or abandon, this Agreement or the other agreements contemplated hereby, (iii) to act as the representative of the Stockholders to review and authorize all claims and disputes or question the accuracy thereof, (iv) to negotiate and compromise on their behalf with Parent any claims asserted hereunder and to authorize payments to be made with respect thereto, (v) to take such further actions as are authorized in this Agreement and the other agreements contemplated hereby, and (vi) in general, do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreementsagreements (including the Escrow Agreement and the other agreements contemplated in this Agreement), certificates, receipts, consents, elections, instructions and other instruments documents contemplated by, or deemed advisable by the Representative to be necessary or desirable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, the other agreements contemplated hereby and the transactions contemplated herein or therein. Parent and Merger Sub shall be binding upon entitled to (x) rely on such appointment and to treat the SecurityholdersRepresentative as the duly appointed attorney-in-fact of each Stockholder and (y) assume that all actions, decisions and no Securityholder determinations of the Representative are fully authorized. Notices given to the Representative in accordance with the provisions of this Agreement shall have constitute notice to the right to object, dissent, protest or otherwise contest the sameStockholders for all purposes under this Agreement.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions The appointment of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and is an agency coupled with an interest and is irrevocable and any action taken by the Representative pursuant to the authority granted in this Section 11.13 shall be enforceable effective and absolutely binding on each Stockholder notwithstanding any rights contrary action of or remedies that direction from such Stockholder. The death or incapacity, or dissolution or other termination of existence, of any Securityholder may have Stockholder shall not terminate the authority and agency of the Representative. Parent, Merger Sub and any other party to any document contemplated by this Agreement in connection dealing with the transactions contemplated hereby; Representative may conclusively and (v) absolutely rely, without inquiry, upon any act of the provisions Representative as the act of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseStockholder.
(d) The Representative will incur no liability shall not be liable to any Stockholder or to any other Person (other than Parent or Merger Sub), with respect to any action taken or omitted to be taken by the Representative in its role as Representative under or in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting Agreement, unless such action or omission results from its or arises out of willful misconduct or gross negligence or willful misconduct. The on the part of the Representative, and the Representative shall not be liable for to any action Stockholder in the event that, in the exercise of his, her or omission pursuant to the advice of counsel. The Securityholders will indemnifyits reasonable judgment, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, believes there will not be adequate resources available to cover potential costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of to contest a claim made by Parent or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this AgreementMerger Sub.
(e) The Representative may resign at any time upon 30 days’ written noticeshall receive reimbursement from, and may be removed indemnified from, the Escrow Account and the Indemnity Escrow Account (to the extent any funds are released therefrom pursuant to Section 3.4(b) for payment of the Per Share Indemnity Escrow Release Amount to the Stockholders), for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; providedall reasonable and documented out-of-pocket expenses, howevercharges and liabilities, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇including attorneys’ fees, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated incurred by the Representative in the performance or discharge of its duties pursuant to this Section 11.13, except for any liability imposed by Law for gross negligence or willful misconduct (the “Expense FundRepresentative Expenses”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 2 contracts
Sources: Merger Agreement (BakerCorp International, Inc.), Merger Agreement (United Rentals North America Inc)
Representative. (a) By the adoption Each of the Merger, Shareholders approves the designation of -------------- and by virtue designates the Representative as the representative of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute Shareholders and appoint the Representative, as of the Closing, as the true attorney-in-fact and lawful agent for and attorney in fact on behalf of each Securityholder, for all purposes in connection Shareholder with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according respect to the terms certification of Closing Stockholders' Equity under Section 1.4 hereof and claims for indemnification under this Agreement Article VIII and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken taking by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney any and all authority hereby conferred is coupled with an interest, is granted in consideration of actions and the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act making of any one decisions required or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required permitted to be taken by the Representative under this Agreement, including, without limitation, the Ancillary Agreementsexercise of the power to: (a) agree to, negotiate, enter into settlements and compromises of, demand arbitration of, and no Securityholder shall comply with orders of courts and awards of arbitrators with respect to, such claims; (b) arbitrate, resolve, settle or compromise any claim for indemnity made pursuant to Article VIII; and (c) take all actions necessary in the judgment of the Representative for the accomplishment of the foregoing. The Representative will have any cause authority and power to act on behalf of action against Kardigan each Shareholder with respect to the disposition, settlement or its Affiliates for other handling of all claims under Article VIII and all rights or obligations arising under Article VIII. The Shareholders will be bound by all actions taken and documents executed by the Representative in connection with Article VIII, and DoveBid will be entitled to rely on any action taken by such Person in reliance upon the instructions or decisions decision of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or . In performing the functions specified in connection with the Ancillary Agreementsthis Agreement, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf will not be liable to any Shareholder in the absence of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconductmisconduct on the part of the Representative. The Shareholders shall severally indemnify the Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold him harmless against any loss, liability or expense incurred without gross negligence or willful misconduct on the part of the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement acceptance or administration of its rights under this Agreement or any other agreement entered into his duties hereunder. Any out-of-pocket costs and expenses reasonably incurred by the Representative in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered actions taken by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable pursuant to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to terms of Article VIII (including without limitation the Securityholders; provided, that while hiring of legal counsel and the Representative may incurring of legal fees and costs) will be paid from by the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided Shareholders to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority pro rata in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent proportion to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors their respective percentage equity interests in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of ClosingCompany.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Dovebid Inc), Stock Purchase Agreement (Dovebid Inc)
Representative. (a) By Effective upon the adoption receipt by the Company of the MergerRequisite Stockholder Approval, and by virtue the approval of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of Stockholder hereby irrevocably constitutes and appoints the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, Representative as the true and lawful agent and attorney in attorney-in-fact of each Securityholderthe Stockholders, for all purposes in connection with this Agreement, and any related agreementson behalf of the Stockholders, with full power in its, his or her name of substitution and on its, his or her behalf authority to act according in the name, place and stead of the Stockholders with respect to the terms of this Agreement Merger and the Ancillary Agreements in the discretion transactions contemplated by this Agreement, to act on behalf of the RepresentativeStockholders in any litigation or arbitration involving this Agreement, to give and receive notices and communications on behalf of the Stockholders, and to do or refrain from doing all things such further acts and things, and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and execute all such actions taken by the Representative on behalf of the Securityholders documents as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights deem necessary or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into appropriate in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in including the event that any such Representative Loss is finally adjudicated power to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims for indemnification, to authorize deliver to Buyer or any Indemnified Party of any payment hereunder, and to otherwise act for the funds Stockholders with regard to all matters pertaining to indemnification referred to in the Expense Fund and this Agreement, (ii) execute and deliver all amendments, waivers, Ancillary Agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement, (iii) receive funds and make payments of funds to pay any other funds amounts that become payable the Representative has incurred or reasonably expects to incur in connection with the Securityholders Stockholders’ obligations under this Agreement at such time as such Agreement, including amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds pay the fees and expenses of professionals incurred in connection with the transactions contemplated by this Agreement, (iv) do or refrain from doing any further act or deed on behalf of the Securityholders Stockholders that the Representative deems necessary or otherwise. Notwithstanding anything appropriate in his sole discretion relating to the subject matter of this Agreement to as fully and completely as the contraryStockholders could do if personally present, and (v) receive service of process in connection with any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of claims under this Agreement.
(eb) The appointment of the Representative shall be deemed coupled with an interest and shall be irrevocable, and the Buyer and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Representative in all matters referred to herein. The Stockholders hereby confirm all that the Representative shall do or cause to be done by virtue of his appointment as the Representative. The Representative shall act for all Stockholders on all of the matters set forth in this Agreement in the manner the Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Representative shall not be responsible to the Stockholders for any losses or damages the Stockholders may suffer by the performance of his duties under this Agreement (or any failure to perform such duties) and the Stockholders shall fully indemnify, on a joint and several basis, the Representative from and against any such losses or damages, other than any such losses or damages arising from his willful violation of any applicable Law or gross negligence in the performance of his duties as the Representative under this Agreement, including reasonable legal fees and other costs and expenses of defending against any claim arising out of such duties. Such indemnification obligation may be satisfied by the Stockholders from any amount to be actually distributed to the Stockholders in accordance with the Escrow Agreement and the Exchange Agent Agreement (it being understood that the Representative shall be only entitled to a portion of any such amount to be distributed to the Stockholders and that the Representative’s right to any portion of such amount pursuant to this clause shall be subject to the prior right of Indemnified Parties to make claims for Damages).
(c) The Representative may resign at is not entitled to amend this Agreement or take any time upon 30 days’ written noticeactions on behalf of the Stockholders prior to the receipt by the Company of the Requisite Stockholder Approval. The Representative may, in all questions arising hereunder, rely on the advice of counsel and other professionals, and for anything done, omitted or suffered in good faith by the Representative based on such advice, the Representative shall not be liable to anyone. Notwithstanding anything to the contrary contained in this Agreement, the Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Stockholder shall otherwise exist against the Representative.
(d) If the Representative shall die, become disabled or otherwise be unable or unwilling to fulfill his responsibilities as agent of the Stockholders, then a majority in interest of the Stockholders (based on the percentage of the Escrow Deposit to which they are entitled) shall appoint a successor agent for the Stockholders. The Person serving as the Representative may be removed for any reason or no reason replaced from time to time by approval from and by written consent the holders of a majority in interest of the Stockholders; providedStockholders (based on the percentage of the Escrow Deposit to which they are entitled). In either case, however, in no event the successor Representative shall Representative be removed without promptly notify the Stockholders having first appointed a new Representative who shall assume Buyer of the identity of such duties immediately upon the removal of successor Representative. Notice Any such successor shall become the “Representative” for purposes of such vote or a copy this Agreement. All expenses incurred by the Representative in connection with the performance of the written consent appointing such new his duties as Representative shall be sent borne and paid exclusively by the Stockholders. All of the indemnities, immunities and powers granted to the Representative under this Agreement shall survive the termination of this Agreement. The parties have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written. By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇ Title: Chief Executive Officer By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: Chief Executive Officer COMPANY: By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Chief Executive Officer /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ The parties have caused this Agreement to be entitled to rely on the decisions and actions duly executed by their respective authorized officers as of the prior Representative as described hereinday and year first above written.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 2 contracts
Sources: Merger Agreement (Connecture Inc), Merger Agreement (Connecture Inc)
Representative. (a) By The Funds are not partners or co-venturers, and all obligations of each Fund under this Agreement are several. No Fund shall be responsible for or in any way liable for the adoption acts or omissions, representations or agreements of, or shall be authorized to act for, any other Fund. In its capacity, the Agent is a “representative” of the Merger, and by virtue Funds within the meaning of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant term “secured party” as defined in the UCC. Each Fund authorizes the Agent to this Agreement, enter into each of the Securityholders irrevocably nominateCollateral Documents to which it is a party and to take all actions contemplated by such documents. Each Fund agrees that no Fund shall have the right individually to seek to realize upon the security granted by any Collateral Document, constitute it being understood and appoint agreed that such rights and remedies may be exercised solely by the Representative, as Agent for the benefit of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to Funds upon the terms of this Agreement and the Ancillary Agreements in Collateral Documents at the discretion direction of the RepresentativeMajority Funds. If Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Agent is hereby authorized, and hereby granted a power of attorney, to do all things execute and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative deliver on behalf of the Securityholders as provided hereunder shall be binding Funds any Fund Documents necessary or appropriate to grant and perfect a Lien on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power Collateral in favor of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration or for the benefit of the mutual covenants Agent, on behalf of Funds. The Funds hereby irrevocably authorize the Agent, to release any Liens granted to or for the benefit of the Agent by the Obligors or any of their Subsidiaries on any Collateral:
(a) upon payment in full of the Secured Obligations (other than contingent obligations not due and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.payable); or
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest that is sold or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out sold concurrently as part of or in connection with any sale permitted under the Representative’s enforcement of its rights under this Agreement Fund Documents. Any such release shall not in any manner discharge, affect, or impair the Secured Obligations or any Liens (other agreement entered into than those expressly being released) upon (or obligations of the Obligors in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused respect of) all interests retained by the bad faithObligors, fraudincluding the proceeds of any sale, gross negligence or willful misconduct all of which shall continue to constitute part of the RepresentativeCollateral. Upon request by the Agent at any time, the Representative Majority Funds will reimburse confirm in writing the Securityholders the amount Agent’s authority to release particular types or items of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this AgreementCollateral pursuant hereto.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 2 contracts
Sources: Contribution Deferral Agreement, Contribution Deferral Agreement (YRC Worldwide Inc.)
Representative. (a) By the adoption of the Merger, and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to executing this Agreement, each of the Securityholders TRA Parties shall be deemed to have irrevocably nominate, constitute and appoint appointed the Representative, Representative as of the Closing, as the true and lawful its agent and attorney in fact with full power of each Securityholdersubstitution to act from and after the date hereof and to do any and all things and execute any and all documents on behalf of such TRA Parties which may be necessary, for convenient or appropriate to facilitate any matters under this Agreement, including: (i) execution of the documents and certificates required pursuant to this Agreement; (ii) except to the extent provided in this Agreement, receipt and forwarding of notices and communications pursuant to this Agreement; (iii) administration of the provisions of this Agreement; (iv) any and all purposes consents, waivers, amendments or modifications deemed by the Representative to be necessary or appropriate under this Agreement and the execution or delivery of any documents that may be necessary or appropriate in connection therewith; (v) taking actions the Representative is authorized to take pursuant to the other provisions of this Agreement; (vi) negotiating and compromising, on behalf of such TRA Parties, any dispute that may arise under, and exercising or refraining from exercising any remedies available under, this Agreement and executing, on behalf of such TRA Parties, any settlement agreement, release or other document with respect to such dispute or remedy; and (vii) engaging attorneys, accountants, agents or consultants on behalf of such TRA Parties in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative paying any fees related thereto on behalf of the Securityholders as provided hereunder shall be binding on all Securityholderssuch TRA Parties, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating subject to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken reimbursement by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconductTRA Parties. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written noticenotice to PubCo, and may be removed for any reason or no reason provided that the Representative has found a replacement to become the Representative, which is acceptable to PubCo in its reasonable discretion. If PubCo determines in its reasonable discretion that such replacement is not acceptable, PubCo shall identify a replacement to become the Representative, which is acceptable to the resigning Representative in its reasonable discretion. If the resigning Representative determines in its reasonable discretion that the replacement identified by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice PubCo is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholdersnot acceptable, the Expense Fund Amount resigning Representative and PubCo shall cooperate in good faith to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign identify a replacement acceptable to the Representative any ownership right that they may otherwise have had in any each such interest or earnings. The Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closingparty.
Appears in 2 contracts
Sources: Tax Receivable Agreement (Symbotic Inc.), Merger Agreement (SVF Investment Corp. 3)
Representative. Effective upon approving this Agreement and the transactions contemplated hereby or by executing and delivering a Stockholder Written Consent, Stockholder Letter of Transmittal, Optionholder Letter of Transmittal or Warrant Holder Consent Agreement, each Stockholder (a) By the adoption other than Stockholders properly exercising appraisal rights for Dissenting Shares), Vested Optionholder and Warrant Holder will, as a specific term of the Merger, be deemed to have agreed that:
(a) The Representative is irrevocably constituted and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, appointed as the true and lawful agent representative, exclusive agent, proxy, and attorney in fact of each Securityholder, (coupled with an interest) for all such Persons for all purposes under this Agreement including the full power and authority on such Person’s behalf: (i) to consummate the transactions contemplated under this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (ii) to negotiate Claims and disputes arising under, or relating to, this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (including, for the avoidance of doubt, the adjustment of Closing Proceeds contemplated by Section 3.03 and Claims for indemnification under Article XI), (iii) to cause to be received or disbursed to, any Indemnifying Securityholder any funds received on behalf of such Indemnifying Securityholder under this Agreement (including, for the avoidance of doubt, any portion of the Merger Consideration) or otherwise, (iv) to direct withholding of any amounts to be received by any Indemnifying Securityholder pursuant to this Agreement (including, for the avoidance of doubt, any portion of the Merger Consideration) or to satisfy (on behalf of the Indemnifying Securityholders) any and all obligations or liabilities of any Indemnifying Securityholder or the Representative in the performance of any of their commitments hereunder (including, for the avoidance of doubt, the satisfaction of payment obligations (on behalf of the Indemnifying Securityholders) in connection with the adjustment of Closing Proceeds contemplated by Section 3.03 or the indemnification of the Parent Indemnified Parties under Article XI), (v) to execute and deliver any amendment or waiver to this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of any Indemnifying Securityholder) and (vi) to take, or refrain from taking, all other actions to be taken by or on behalf of any Indemnifying Securityholder or as deemed necessary by the Representative in connection with this Agreement, the Escrow Agreement and any related other agreements, with full power instruments, and documents contemplated hereby or executed in itsconnection herewith. The powers, his or her name immunities and on its, his or her behalf rights to act according indemnification granted to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including Representative Group hereunder: (1i) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is are coupled with an interest, is granted in consideration are therefore irrevocable without the consent of the mutual covenants Representative and agreements made hereinshall survive the Merger and the death, incapacity, bankruptcy, dissolution or liquidation of each Indemnifying Securityholder and shall be irrevocable binding on any successor thereto, and (ii) shall not be terminated survive the delivery of an assignment by any act Indemnifying Securityholder of the whole or any one fraction of his, her or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) its interest in the Indemnification Escrow Funds. All decisions and actions by the Representative, including any agreement between Representative or omitted to be taken by the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholderseach Indemnifying Securityholder and such Indemnifying Securityholder’s successors as if expressly confirmed and ratified in writing by such Indemnifying Securityholder, and no Indemnifying Securityholder shall have the right to object, dissent, protest or otherwise contest the same., except for decisions, actions or omissions of the Representative constituting willful misconduct. The Representative shall have no duties or obligations hereunder or under the Escrow Agreement, including any fiduciary duties, except those set forth herein and in the Escrow Agreement, and such duties and obligations shall be determined solely by the express provisions of this Agreement and the Escrow Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule;
(b) Certain Indemnifying Securityholders have entered into an engagement agreement with the Representative to provide direction to the Representative in connection with its services under this Agreement and the Representative engagement agreement (such Indemnifying Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Representative Group”), shall be liable to any Indemnifying Securityholder for any act done or omitted hereunder, under the Escrow Agreement or under the Representative engagement agreement as the Representative Group while acting in good faith (and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith) and without gross negligence or willful misconduct. The Representative Group shall be indemnified, defended, held harmless and reimbursed by each Indemnifying Securityholder severally (based on each Indemnifying Securityholder’s Indemnity Allocation Percentage), and not jointly, against all losses, liabilities, claims, damages, fees, costs, expenses (including reasonable attorneys’ fees and costs of other skilled professional and in connection with seeking recovery from insurers), judgments, fines and amounts paid or incurred by the Representative Group in connection with any Claim, action, suit or proceeding to which the Representative Group is made a party by reason of the fact that such Person is or was acting as the Representative Group pursuant to the terms of this Agreement (including, for the avoidance of doubt, the satisfaction of payment obligations on behalf of the Indemnifying Securityholder) (collectively, the “Representative Expenses”). Any and all amounts paid or incurred by the Representative Group in connection with any Claim, action, suit or proceeding to which the Representative Group or such other Person is made a party by reason of the fact that it is or was acting as the Representative Group pursuant to the terms of this Agreement are on behalf of the Indemnifying Securityholders (and, not for the avoidance, on behalf of the Representative in any other capacity, as a Stockholder or otherwise);
(c) Each The Representative Group shall not incur any liability to any Indemnifying Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on by virtue of the instructions and decisions failure or refusal of the Representative as Group for any reason to consummate the transactions contemplated hereby or relating to the determination performance of their duties hereunder. The Representative Group shall have no liability in respect of any action, Claim or proceeding brought against any such Person by any Indemnifying Securityholder, 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) Representative represents and warrants that it is a limited liability company, duly organized, validly existing and in good standing under the Laws of Delaware, and it has the requisite limited liability company power and authority, and has taken all limited liability company action necessary or required, to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement has been duly executed and delivered by Representative and, assuming that this Agreement constitutes a valid and binding obligation of the other parties hereto, constitutes a valid and binding obligation of Representative, subject to the Laws of agency;
(e) The Representative may resign upon thirty (30) day notice in the event of circumstances rendering it impracticable for the Representative to continue to effectively serve, including amendments increasing Representative’s responsibilities without its consent or failure to pay amounts due to Representative. The immunities and rights to indemnification shall survive the resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. The rights and obligations of the Representative pursuant to this Agreement, and the grant of authority to such Representative set forth in this Section 12.13 may be assigned from time to time or a vacancy in such position may be filled upon written consent of the Indemnifying Securityholders receiving a majority-in-interest of the Merger Consideration received in the aggregate by the Indemnifying Securityholders; provided, however, that no such assignment shall be effective unless and the determination, dispute and facilitating the disbursement until (i) evidence of the Milestone Payments pursuant consent referred to in the immediately preceding sentence is provided to Parent and (ii) the assignee of such rights and obligations becomes a party to this Agreement by executing a joinder in a form reasonably acceptable to Parent. Upon any such assignment, the Person accepting and assuming the rights and obligations of the Representative shall become, for all purposes, the Representative hereunder;
(f) If the Representative incurs or any other actions required pays or causes to be taken by the paid, any Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative Expenses (on behalf of the Indemnifying Securityholders) and not in connection with each Securityholder; (iii) all actions, decisions and instructions any obligation or liability of the Representative shall be conclusive and binding upon all Securityholders and no or of an Indemnifying Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; hereby (including, for the avoidance of doubt, the Purchase Price Adjustments or the indemnification of the Parent Indemnified Parties under Article XI), any such Representative Expenses incurred may be reimbursed, first, when and (v) as incurred, from the provisions of this Section 1.4 Representative Holdback Amount, second, and, if not so reimbursed from the Representative Holdback Amount, then the Representative shall be binding upon reimbursed from any distribution of the executors, heirs, legal representatives and successors Indemnification Escrow Funds otherwise distributable to the Indemnifying Securityholders at the time of each Securityholderdistribution, and any references in this Agreement to a third, the Representative shall be indemnified, held harmless and reimbursed directly by each Indemnifying Securityholder shall mean and include the successors to such severally (based on each Indemnifying Securityholder’s rights hereunderIndemnity Allocation Percentage), whether and not jointly, for such amount(s)). The Indemnifying Securityholders acknowledge that the Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to testamentary dispositionthis Agreement, the laws of descent Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and distribution or otherwiseliabilities which may be incurred by the Representative in performing such actions.
(dg) The Representative will incur no liability Holdback Amount shall be held by the Representative in connection with its services a segregated client account and shall be used (i) for the purposes of paying directly or reimbursing the Representative for any Representative Expenses incurred pursuant to this Agreement, the Escrow Agreement or any Representative letter agreement, or (ii) as otherwise determined by the Advisory Group. The Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any related agreements except to loss of principal of the extent resulting from Representative Holdback Amount other than as a result of its gross negligence or willful misconduct. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Holdback Amount, and has no tax reporting or income distribution obligations. The Indemnifying Securityholders will not receive any interest on the Representative Holdback Amount and assign to the Representative any such interest. Subject to Advisory Group approval, the Representative may contribute funds to the Representative Holdback Amount from any consideration otherwise distributable to the Indemnifying Securityholders. Following the resolution of all Claims and the termination of the Representative’s duties and obligations hereunder, under the Escrow agreement and under the Representative engagement agreement, and upon full reimbursement of all Representative Expenses incurred by the Representative in the performance of its duties hereunder, under the Escrow Agreement or under the Representative engagement agreement, the Representative shall distribute, or caused to be distributed, all remaining funds in the Representative Holdback Amount held by it on behalf of the Indemnifying Securityholders to Paying Agent for further distribution to the Indemnifying Securityholders;
(h) The Representative shall be entitled to: (i) rely upon the Final Securityholder Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Indemnifying Securityholder or other party; and
(i) Notwithstanding anything to the contrary set forth herein, the Representative Group and its Affiliates shall not be liable for any loss to any Indemnifying Securityholder for any action taken or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered not taken by the Representative from (i) Group or for any act or omission taken or not taken in reliance upon the funds in actions taken or not taken or decisions, communications or writings made, given or executed by the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative Parent or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent Merger Sub or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described hereinSurviving Corporation.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) By the adoption of the Merger, Each Shareholder hereby designates and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, appoints (and each of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact Permitted Transferee of each Securityholder, for all purposes in connection with this Agreement, such Shareholder is hereby deemed to have so designated and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1appointed) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating ▇. ▇▇▇▇ (the “Representative”), acting jointly or individually, as its attorneys-in-fact with full power of substitution for each of them, to serve as the determination representative of such Shareholder to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Shareholder (including the voting of the Merger Consideration Subject Shares in accordance with Sections 4(a) and 4(b)), and hereby acknowledges that the determinationRepresentative shall be authorized to take any action so required, dispute authorized or contemplated by this Agreement. Each such Shareholder further acknowledges that the foregoing appointment and facilitating designation shall be deemed to be coupled with an interest and shall survive the disbursement death or incapacity of such Shareholder. Each such Shareholder hereby authorizes (and each such Permitted Transferee of such Shareholder shall be deemed to have authorized) the Milestone Payments other parties hereto to disregard any notices or other action taken by such Shareholder pursuant to this Agreement, shall except for notices and actions taken by the Representative. Purchaser is and will be binding upon entitled to rely on any action so taken or any notice given by the Securityholders, Representative and no Securityholder shall have is and will be entitled and authorized to give notices only to the right Representative for any notice contemplated by this Agreement to object, dissent, protest or otherwise contest be given to any such Shareholder. A successor to the sameRepresentative may be chosen by a majority in interest of the Shareholders; provided that notice thereof is given by the new Representative to Purchaser.
(cb) Each Securityholder agrees that: (i) Kardigan Notwithstanding the generality of Section 6(a), each Shareholder hereby constitutes and its Affiliates shall be able to rely conclusively on appoints the instructions and decisions Representative, with full power of substitution, as the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments proxy pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of the Maryland General Corporation Law and attorney of such Shareholder, and hereby authorizes and empowers the Representative, acting individually or jointly, to represent, vote and otherwise act (by voting at any meeting of the shareholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Shareholder regarding the matters referred to in Sections 4(a) and 4(b) until the termination of this Section 1.4 are independent Agreement, to the same extent and severablewith the same effect as such Shareholder might or could do under applicable law, are irrevocable rules and regulations. The proxy granted pursuant to the immediately preceding sentence is coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconductirrevocable. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against Each Shareholder hereby revokes any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses previous proxies or powers of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection attorney granted with the Representative’s enforcement of its rights under this Agreement or respect to any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of Subject Shares owned or held by such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this AgreementShareholder.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Sources: Voting Agreement (Morgan Stanley)
Representative. (a) By B▇▇▇▇ ▇▇▇▇▇▇ is hereby appointed, authorized and empowered to act the adoption Representative, for the benefit of Seller and the Equityholders, as the exclusive agent and attorney-in-fact to act on behalf of Seller and each Equityholder, in connection with and to facilitate the consummation of the Mergertransactions contemplated hereby, including pursuant to the Related Agreements, which will include the power and authority:
(i) to execute and deliver the Related Agreements (with such amendments, modifications or changes therein as to which the Representative, in its sole discretion, will have consented) and to agree to such amendments or modifications thereto as the Representative, in its sole discretion, determines to be desirable;
(ii) to negotiate, execute and deliver such waivers, modifications, amendments, consents and other documents required or permitted to be given in connection with this Agreement and the Related Agreements and the consummation of the transactions contemplated hereby and thereby as the Representative, in its sole discretion, may deem necessary or desirable;
(iii) to take any action on behalf of Seller and the Equityholders or Seller or any Equityholder that may be necessary or desirable, as determined by the Representative in its sole discretion, in connection with negotiating or entering into settlements, resolutions and compromises with respect to the adjustments or payments contemplated by Section 2.5;
(iv) to collect and receive all moneys and other proceeds and property payable to the Representative, Seller or the Equityholders from Purchaser as described herein or in the Related Agreements, and, subject to any applicable withholding retention laws, and net of any out-of-pocket expenses incurred by virtue the Representative, the Representative will disburse and pay, except as otherwise provided hereunder, any amount payable to the Equityholders to each Equityholder to the extent of such Equityholders’ Pro Rata Portion of such amount;
(v) as the Representative, to enforce and protect the rights and interests of Seller and to enforce and protect the rights and interests of the execution Representative arising out of or under or in any manner relating to this Agreement and/or acceptance and the Related Agreements or the transactions provided for herein or therein, and to take any and all actions which the Representative believes are necessary or appropriate under the Related Agreements or this Agreement, including actions in connection with the determination of any benefits thereofpayment due hereunder or thereunder for and on behalf of Seller or Equityholders, including (A) assert any consideration payable pursuant claim or institute any action, proceeding or investigation; (B) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by an MMT Party or any other Person, or by any federal, state or local Governmental Authority against the Representative or Seller or any Equityholder, and receive process on behalf of Seller or any or all Equityholders in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Representative will determine to be appropriate, and give receipts, releases and discharges with respect to, any such claim, action, proceeding or investigation; (C) file any proofs of debt, claims and petitions as the Representative may deem advisable or necessary; (D) settle or compromise any claims asserted under this Agreement or the Related Agreements; and (E) file and prosecute appeals from any decision, judgment or award rendered in any such action, proceeding or investigation, it being understood that the Representative will not have any obligation to take any such actions, and will not have any liability for any failure to take any such actions;
(vi) to refrain from enforcing any right of Seller, any Equityholder or the Representative arising out of or under or in any manner relating to this Agreement, each of the Securityholders irrevocably nominateRelated Agreements or any other agreement, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes instrument or document in connection with this Agreementthe foregoing; provided, and any related agreementshowever, with full power in its, his or her name and on its, his or her behalf that no such failure to act according to on the terms of this Agreement and the Ancillary Agreements in the discretion part of the Representative, except as otherwise provided in this Agreement, will be deemed a waiver of any such right or interest by the Representative or by such Seller or Equityholder unless such waiver is in writing signed by the waiving party or by the Representative; and
(vii) to make, execute, acknowledge, deliver and receive all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to perform take any and all actsaction that the Representative, including (1) amending in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the Ancillary transactions contemplated by this Agreement, the Related Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all other agreements, certificates, receipts, instructions and other documents or instruments contemplated by, referred to herein or deemed advisable therein or executed in connection with, the Ancillary Agreements. Any herewith and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other eventtherewith.
(b) All actions decisions and actions by instructions of the Representative will be conclusive and binding upon Seller and all of the Equityholders and no Seller, Equityholder or any other Person acting on behalf of Seller will have any claim or cause of action against the Representative, including any agreement between and the Representative and ▇▇▇▇▇▇▇▇ relating will have no liability to Seller, any Equityholder or any other Person acting on behalf of Seller or any Equityholder, for any action taken, decision made or instruction given by the determination Representative in connection with this Agreement or any Related Agreements, except in the case of the Merger Consideration Representative’s own gross negligence or willful misconduct. In the performance of its duties hereunder, the Representative will be entitled to rely upon any document or instrument reasonably believed by it to be genuine, accurate as to content and signed by Seller, any Equityholder, any MMT Party or any other Person. The Representative may assume that any Person purporting to give any notice in accordance with the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant provisions hereof has been duly authorized to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the samedo so.
(c) Each Securityholder agrees that: (i) Kardigan The Representative will have such powers and its Affiliates shall authority as are necessary or appropriate to carry out the functions assigned to it under this Agreement and in any other document delivered in connection herewith; provided, that the Representative will have no obligation to act on behalf of Seller or the Equityholders. The Representative will at all times be able entitled to rely conclusively on any directions received from Equityholders which collectively owned, as of immediately prior to the Closing, more than 75% of the equity securities of Seller; provided, that the Representative will not be required to follow any such direction, and will be under no obligation to take any action in its capacity as the Representative based upon such direction. The Representative will be entitled to engage such counsel, experts and other agents and consultants as it may deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of willful misconduct on the instructions and decisions part of the Representative as Representative) will be entitled to conclusively rely on the opinions and advice of such Persons. Notwithstanding anything to the determination of contrary contained herein, the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant Representative in its capacity as such will have no fiduciary duties or responsibilities to this Agreement Seller or any Equityholder and no duties or responsibilities except for those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of Seller or any Equityholder will otherwise exist against or with respect to the Representative in its capacity as such.
(d) In no event will the Representative be liable to Seller or any Equityholder hereunder or in connection herewith for any special, indirect, consequential, contingent, speculative, punitive or exemplary damages, or lost profits, diminution in value or any damages based on any type of multiple of earnings, cash flow or similar measure or for any liabilities resulting from the actions of Seller or an Equityholder other than the Representative acting in its capacity as such. The MMT Parties will have the right to rely upon all actions required taken or omitted to be taken by the Representative under pursuant to this Agreement and the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Related Agreements, including the determination calculations required by Section 2.5, all of the Merger Consideration which actions or omissions will be legally binding upon Seller and the determination, dispute and disbursement Equityholders. The grant of the Milestone Payments only with the Representative authority provided for herein (on behalf of the Securityholdersi) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and is coupled with an interest and shall will be enforceable notwithstanding irrevocable by any rights act of Seller or remedies that any Securityholder may have in connection with by operation of Law and all of the transactions contemplated hereby; indemnities, immunities, authority and power granted to the Representative hereunder will survive the death, incompetency, bankruptcy or liquidation of Seller and (vii) will survive the provisions Closing or any termination of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and Agreement or any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseRelated Agreements.
(de) The Representative will incur no not be liable to Seller or any Equityholder for any act done or omitted hereunder as Representative while acting in good faith. Seller and the Equityholders will indemnify the Representative and hold the Representative harmless against any loss, liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its or expense incurred without gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to misconduct on the advice part of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from or any of its Affiliates and against any of their respective partners, members, attorneys, accountants, advisors or controlling Persons and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the acceptance or administration of the Representative’s enforcement duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Representative. Each MMT Party (on its behalf and on behalf of its rights Affiliates) acknowledges that the Representative is party to this Agreement solely for purposes of serving as the “Representative” hereunder and no claim will be brought by or on behalf of an MMT Party or any of its Affiliates against the Representative with respect to this Agreement or the agreements or transactions contemplated hereby or any certificate, 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” at or prior to the Closing will not be deemed to require performance by, or be an agreement of, the Representative unless performance by the Representative is expressly provided for in such covenant or the Representative expressly so agrees).
(f) All out-of-pocket fees and expenses (including legal, accounting and other advisors’ fees and expenses, if applicable) reasonably incurred by the Representative in performing any actions under this Agreement or the Related Agreements will be paid out of the Representative Fund from time to time, as and when such fees and expenses are incurred. In the event that the amount of the Representative Fund is insufficient to satisfy all expense reimbursement and indemnification payments to which the Representative is entitled pursuant to this Section 9.12 upon written notice from the Representative to the Equityholders as to the existence of a deficiency toward the payment of any such expense reimbursement or indemnification amount, as the case may be, each Equityholder will promptly deliver to the Representative full payment of such Equityholder’s Pro Rata Portion of the amount of such deficiency. The Representative will establish such terms and procedures for administering, investing and disbursing any amounts from the Representative Fund as it may determine in its reasonable judgment to be necessary, advisable or desirable to give effect to the provisions of this Agreement. If any balance of the Representative Fund remains undisbursed at such time as all disputes, claims and other agreement entered into in connection with matters relating to the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated Agreement and all other instruments and agreements to be delivered pursuant hereto have been caused by the bad faithfinally resolved, fraud, gross negligence or willful misconduct of the Representative, then the Representative will reimburse the Securityholders the amount distribute to each Equityholder, by wire transfer of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the immediately available funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”)each Equityholder, which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event Equityholder’s Pro Rata Portion of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any such remaining balance of the Expense Fund to Kardigan for further distribution Representative Fund.
(g) Any resignation by the Representative will not be effective until a new Representative will be appointed by Equityholders who held more than 75% of the aggregate equity securities of Seller, immediately prior to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Medicine Man Technologies, Inc.)
Representative. (a) By the adoption of the MergerEach Supporting Stockholder hereby irrevocably grants to, and by virtue of the execution of this Agreement and/or acceptance of any benefits thereofappoints, including any consideration payable pursuant to this AgreementRepresentative as its representative, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in attorney-in-fact (with full power of each Securityholdersubstitution), for all purposes and in connection the name, place and stead of such Supporting Stockholder, with this Agreement, and any related agreementsthe same effect as if taken by such Supporting Stockholder, with full power and authority to take any and all actions and execute any and all documents and agreements in itssuch Supporting Stockholder’s name, his or her name place and stead and on itsits behalf, his with the same effect as if such action were taken or her behalf to act according such document or agreement were executed by such Supporting Stockholder, in connection with any matter or thing relating to the terms Merger, the Merger Agreement, the Collateral Agreements and any of this the transactions contemplated thereby, including, without limitation, the power and authority to (i) institute, make or pursue claims, counterclaims or defenses, (ii) enter into, modify, amend, implement or waive any contracts, including the Merger Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Collateral Agreements, (2iii) waiving rightscompromise, surrender or settle any disputes or claims or make any other determination or take any other action or assert or compromise any claim relating to the Merger Agreement, the Collateral Agreements and any of the transactions contemplated thereby, including any adjustments in connection with the determination of the Actual Closing Working Capital, Actual Closing Cash, Actual Closing Indebtedness and Actual Seller Transaction Expenses pursuant to Sections 2.7 and 2.8 of the Merger Agreement, (3iv) discharging liabilities receive and obligationsdeliver at the Closing certificates and other documents, (4v) determininggive and receive notices by and on behalf of such Supporting Stockholder, disputing and facilitating the disbursement (vi) enter into amendments of the Milestone Payments Merger Agreement and the Collateral Agreements; provided, that Representative will not, as a result of such appointment, be granted the power and authority to take any action or enter into any agreement that (x) agrees or subjects any Supporting Stockholder to personal liability for claims or other liabilities, except as expressly provided herein, or (y) changes or modifies the ownership percentage in Holding (as of immediately prior to the Effective Time) of such Supporting Stockholder, and (5vii) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable receive service of process in connection withwith any claims under the Merger Agreement.
(b) Representative hereby accepts its appointment as “Representative” hereunder.
(c) Representative cannot be removed by the Supporting Stockholders or Holding, respectively, except upon delivery to Representative of a written instrument signed by Supporting Stockholders having a majority of the Ancillary Agreementsownership percentage in Holding. Representative may resign for any reason or no reason, at any time. If Representative resigns or is so removed, then a replacement Representative shall be designated by the Supporting Stockholders (or their successors-in-interest) having a majority of the ownership percentage in Holding. Any such replacement Representative will have the full power and authority of Representative hereunder.
(d) Any Person (including Parent and Merger Sub) shall be entitled to rely, without any investigation or inquiry by such Person, upon all such actions taken actions, notices, communications and determinations by the Representative on behalf of the Securityholders Supporting Stockholders as provided hereunder having been taken upon the authority of the Supporting Stockholders. Any actions, notices, communications and determinations by Representative taken on behalf of the Supporting Stockholders shall be binding on all Securityholdersconclusively deemed to be the actions, notices, communications and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration determinations of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other eventSupporting Stockholders.
(be) All decisions and Neither Representative nor any of its officers, employees, agents, partners, representatives or Affiliates will have any liability to Holding or the Supporting Stockholders with respect to actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest taken or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required omitted to be taken by the Representative under the Ancillary Agreementsin such capacity (or any of its employees, and no Securityholder shall have any cause of action against Kardigan agents, representatives or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection therewith), except with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the respect to Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative, its officers, employees, agents, partners, representatives and Affiliates shall be entitled to full reimbursement from the Supporting Stockholders for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by Representative shall not be liable for in such capacity (or any action of its officers, employees, agents, partners, representatives or omission pursuant Affiliates in connection therewith), and to full indemnification by the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and Supporting Stockholders (pro rata to their interests) against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) Losses arising out of actions taken or omitted to be taken in connection with the its capacity as Representative (except for those arising out of Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. ), including, without limitation, the costs and expenses of investigation and defense of claims (including, without limitation, from funds received by it in its capacity as Representative Losses may or funds to be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable distributed to the Securityholders Supporting Stockholders under this the Merger Agreement at such time as such amounts would otherwise its direction). In furtherance of the foregoing indemnification, the Supporting Stockholders agree that Representative shall 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 distributable paid to the Securityholders; providedSupporting Stockholders, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement Merger Consideration pursuant to the contrary, any restrictions Merger Agreement at Closing or limitations on liability or indemnification thereafter to satisfy such obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere (including to establish such reserves as Representative determines in this Agreement are not intended good faith to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation appropriate for such costs and expenses whether or removal of the Representative not then known or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described hereindeterminable).
(f) Pursuant Representative shall have no duties or responsibilities except those expressly set forth herein and in the Merger Agreement and Collateral Agreements. Representative shall be entitled to Section 2.2(c)engage such counsel, at experts and other agents and consultants as it shall deem appropriate in connection with exercising its powers and performing its function hereunder and shall be entitled to conclusively rely on the Closingopinions and advice of such Persons. Representative may rely on any notice, Kardigan shall depositinstruction, on behalf certificate, statement, request, consent, confirmation, agreement or other instrument which it reasonably believes to be genuine and to have been signed or presented by a proper person or persons.
(g) The relationship created herein is not to be construed as a joint venture or any form of partnership between or among Representative or any Supporting Stockholder for any purpose of federal or state law, including without limitation, federal or state income tax purposes. Neither Representative nor any of its Affiliates owes any fiduciary or other duty to any Supporting Stockholder. Each Supporting Stockholder acknowledges that it understands that Representative and its Affiliates have a direct and/or indirect financial interest in the SecurityholdersMerger, the Expense Fund Amount to an account designated including by the Representative (the “Expense Fund”), which virtue of its ownership of shares of Common Stock of Holding and by virtue of fees that will be used for any expenses incurred payable to Representative in connection with the Merger pursuant to that certain Management Agreement, dated May 1, 2013, executed by the Representative. The Securityholders will not receive any interest or earnings on the Expense Fund , Holding, 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of ClosingCompany.
Appears in 1 contract
Representative. (a) By Oaktree Capital Management, L.P. is hereby constituted and appointed as the adoption Representative. For purposes of the Merger, and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominateterm “Representative” shall mean the representative, constitute and appoint the Representative, as of the Closing, as the true and lawful agent agent, proxy and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreementsHolders, with full power in itsand authority on the Holders’ behalf
(i) to consummate the transactions contemplated herein, his or her name and on its, his or her behalf to act according (ii) subject to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representativelimitations set forth herein, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative pay expenses incurred on behalf of the Securityholders as provided hereunder shall be binding Holders (whether incurred on all Securityholders, or after the date hereof) in connection with the negotiation and Shareholder Representative Services LLC hereby accepts such appointment. This power performance of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall (iii) to receive, give receipt and disburse any funds received hereunder on behalf of or to the Holders and to hold back from disbursement any such funds to the extent it reasonably determines may be binding upon the Securityholdersnecessary, (iv) to execute and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively deliver on the instructions and decisions behalf of the Representative as Holders all documents contemplated herein and any amendment or waiver hereto approved in accordance herewith, (v) subject to the determination of the Merger Consideration and the determinationlimitations set forth herein, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any take all other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the SecurityholdersHolders in connection herewith, (vi) and not with each Securityholder; (iii) all actionsto, decisions and instructions on behalf of the Representative shall be conclusive Holders in their capacity as such, negotiate, settle, compromise and binding upon otherwise handle all Securityholders disputes under this Agreement, including, without limitation, disputes regarding Milestone Notice and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severableMilestone Payment, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (vvii) to give and receive notices on behalf of the provisions Holders. Each Holder agreed, by virtue of this Section 1.4 shall the Confirmation Order, that (x) such Holder irrevocably granted unto the foregoing attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into done in connection with the transactions contemplated by this Agreement, as fully to all intents and purposes as the Holders might or could do in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund person and (iiy) any other funds that become payable to such agency and proxy are coupled with an interest, are therefore irrevocable without the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal consent of the Representative and shall survive the death, incapacity or the termination bankruptcy of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of RepresentativeHolder. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ Any Person shall be entitled to rely on the decisions (1) conclusively and absolutely rely, without inquiry, upon any actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf acts of the SecurityholdersHolders hereunder in all matters referred to in this Agreement and any other agreement, document or instrument contemplated by this Agreement and, without limiting the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”)foregoing, which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.and
Appears in 1 contract
Sources: Contingent Value Rights Agreement
Representative. (a) By the adoption of the MergerEach Seller Party, and by virtue of the approval and execution of this Agreement and/or acceptance Agreement, constitutes, appoints and empowers, effective from and after the date of any benefits thereof, including any consideration payable pursuant to this Agreement, each the Founder to act for the benefit of the Securityholders irrevocably nominate, constitute such Seller Party and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholderattorney-in-fact, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement for and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholderssuch Seller Party in such Seller Party’s name, place and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an intereststead, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement and the Ancillary Agreements, as fully and for all intents and purposes as such Seller Party might or could do in person, which shall include the power (i) to take any and all actions, including the power to execute and deliver such waivers, consents and amendments (with respect to any and all matters or issues, including those which may have a negative impact on such Seller Party), and the power to make any and all determinations which may be required or permitted in connection with the post-Closing implementation of this Agreement and the Ancillary Agreement and the transactions contemplated hereby and thereby; (ii) to negotiate, defend, settle, compromise and otherwise handle and resolve any and all claims and disputes arising out of or in respect of this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby, including the power to file and prosecute appeals from any decision, judgment or award rendered in any such action, proceeding or obligation; (iii) to refrain from enforcing any right of such Seller Party arising out of or under or in any manner relating to this Agreement; (iv) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general to do any and all things and to take any and all action that the Founder, in its sole and absolute discretion may consider necessary, proper or convenient to carry out its obligations hereunder; (v) to give and receive notices and communications hereunder; and (vi) to engage legal counsel, accountants, consultants and other experts, and incur any reasonable expenses, in connection with all matters set forth or otherwise necessary with respect to this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby. In connection with this Agreement, and in each case as such Representative Loss is suffered exercising or incurred; provided, that in the event that failing to exercise all or any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representativepowers conferred upon the Founder hereunder, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds Founder shall incur no responsibility whatsoever to the Seller Parties by reason of any error in the Expense Fund judgment or other act or omission performed or omitted hereunder, excepting only responsibility for any act or failure to act which represents willful misconduct, and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ Founder shall be entitled to rely on the decisions advice of counsel, public accountants or other independent experts experienced in the matter at issue, and actions any error in judgment or other act or omission of the prior Representative as described herein.
Founder pursuant to such advice shall in no event subject the Founder to liability to the Seller Parties. The Seller Parties shall indemnify the Founder against all Losses, including reasonable attorneys’, accountants’ and other experts’ fees and the amount of any judgment against them, of any nature whatsoever (f) Pursuant to Section 2.2(cincluding any and all expense whatsoever reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened or any claims whatsoever), at arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the Closing, Kardigan shall deposit, on behalf acts or omissions of the SecurityholdersFounder hereunder. All of the indemnities, immunities and powers granted to the Expense Fund Amount Founder pursuant to this Section 10.7 shall survive the Closing and any termination of this Agreement. The grant of authority in this Section 10.7 is coupled with an account designated interest and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Seller Party, and shall survive the consummation of the transactions contemplated hereby, and any action taken by the Founder pursuant to the authority granted in this Agreement shall be effective and absolutely binding on each Seller Party notwithstanding any contrary action of or direction from such Seller Party, except for actions or omissions of the Representative (the “Expense Fund”)constituting willful misconduct, which will and may be used for any expenses incurred relied upon by the Representative. The Securityholders will not receive any interest or earnings on Blackstone Parties and the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of ClosingAcquirer.
Appears in 1 contract
Representative. The Sellers hereby appoint IPS to act as the “Sellers’ Representative” as (ai) By the adoption agent and true and lawful attorney-in-fact of each Seller, with full power of substitution, and with full capacity and authority in its sole discretion, to act in the name of and for and on behalf of each Seller holder in connection with all matters arising out of, resulting from, contemplated by or related or incident to this Agreement and the Closing contemplated herein and (ii) the agent for service of process for each Seller and the Sellers irrevocably consent to the service of any and all process in any action or proceeding arising out of or relating to this Agreement by the delivery of such process to the Sellers’ Representative. Without limiting the generality of the Mergerforegoing, and by virtue the power of the execution Sellers’ Representative shall include the power to represent each Seller with respect to all aspects of this Agreement, which power shall include, without limitation, the power to (i) waive any and all conditions of this Agreement, (ii) amend this Agreement and/or acceptance of and any benefits thereofagreement executed in connection herewith in any respect, including (iii) bring, assert, defend, negotiate or settle any consideration payable claims or actions for indemnity pursuant to this Agreement, each of (iv) retain legal counsel and be reimbursed by the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, Sellers for all purposes in connection with this Agreementfees, expenses and other charges of such legal counsel, (v) designate an agent to receive, hold and disburse monies or securities paid or delivered hereunder; (vi) receive notices or other communications, (vii) deliver any related agreementsnotices, with full power in its, his certificates or her name other documents required and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, (viii) take all such other action and to do all such other things as the Sellers’ Representative deems necessary or advisable with respect to this Agreement, including, without limitation, to provide all approvals and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement consents of the Milestone Payments Sellers contemplated hereunder. The Purchaser shall have the absolute right and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, authority to rely upon the acts taken or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions omitted to be taken by the Sellers’ Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, Sellers and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder Purchaser shall have the right no duty to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative inquire as to the determination acts and omissions of the Merger Consideration and Sellers’ Representative. In the determinationevent the Sellers’ Representative refuses to, dispute and facilitating or is no longer capable of, serving as the disbursement Sellers’ Representative hereunder, the Sellers by approval of those holders entitled to receive at least 65% of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder Purchase Price hereunder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to promptly appoint a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 dayssuccessor Sellers’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon thereafter be a successor Sellers’ Representative hereunder and the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Sellers’ Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that serve until such notice successor is received, ▇▇▇▇▇▇▇▇ shall be entitled duly appointed and qualified to rely on the decisions and actions of the prior Representative as described hereinact hereunder.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Sources: Securities Purchase Agreement (Solomon Technologies Inc)
Representative. (a) By virtue of the adoption of this Agreement and as set forth in the MergerLetters of Transmittal, as applicable, the Representative is hereby irrevocably appointed as of the Closing as the representative, agent, proxy, and by virtue attorney-in-fact for all the Equityholders for all purposes under this Agreement, including the full power and authority on the Equityholders’ behalf (i) to consummate the transactions contemplated under this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (ii) to negotiate and settle disputes arising under, or relating to, this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (iii) to receive and disburse to the Equityholders any funds received on behalf of the execution of Equityholders under this Agreement and/or acceptance or otherwise, (iv) to withhold any amounts received on behalf of any benefits thereof, including any consideration payable the Equityholders pursuant to this Agreement, each including the Reserve Amount, or otherwise to satisfy any and all obligations or liabilities incurred by the Equityholders or the Representative in the performance of their duties hereunder, (v) to direct the distribution of funds, designate or engage a paying agent to distribute funds (including, the Aggregate Closing Merger Consideration, positive adjustment to Aggregate Closing Merger Consideration payable in accordance with Section 3.6 and funds from the Escrow Account and the Reserve Amount), make or direct payments of funds from the Reserve Amount, give receipts for funds, authorize deliveries to Parent of cash from the Escrow Account in satisfaction of claims asserted by Parent, and object to any claims by any Person against the Escrow Account, (vi) to execute and deliver any amendment or waiver to this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of the Securityholders irrevocably nominate, constitute Equityholders) and appoint the Representative, as (vii) to take all other actions to be taken by or on behalf of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes Equityholders in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representativeother agreements, instruments, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments documents contemplated by, hereby or deemed advisable executed in connection withherewith. The Stockholders, the Ancillary Agreements. Any by execution of a Letter of Transmittal, further agree that such agency and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is proxy are coupled with an interest, is granted in consideration are therefore irrevocable without the consent of the mutual covenants and agreements made herein, shall be irrevocable Representative and shall not be terminated by any act survive the death, incapacity, bankruptcy, dissolution or liquidation of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) Stockholder. All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon all of the Securityholders, Equityholders and no Securityholder Equityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely . Parent may conclusively on the instructions and decisions rely, without independent verification or investigation, upon any such decision or action of the Representative as being the binding decision or action of every Equityholder, and Parent shall not be liable to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement any Stockholder or any other Persons for any actions required to be taken or omitted from being taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan them or its Affiliates for any action taken by such Person Parent in accordance with or reliance upon the instructions any such decision or decisions action of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the . The Representative shall be conclusive and binding upon all Securityholders and have no Securityholder shall have any cause of action against duties or obligations to the Representative; (iv) the provisions of this Section 1.4 are independent and severableEquityholders hereunder, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references except as expressly set forth in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseAgreement.
(db) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements agreements, except to the extent resulting from its fraud, bad faith, gross negligence or willful misconduct. The Representative shall not be liable for any action or omission taken in good faith pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless Equityholders shall indemnify the Representative from and against any reasonable, documented, and all out-of-pocket losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs liabilities and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or and any other agreement entered into in connection with the transactions contemplated by this Agreementrelated agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the fraud, bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders Equityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund Reserve Amount and (ii) any other funds that become payable to the Securityholders Equityholders under this Agreement at such time as such amounts would otherwise be distributable to the SecurityholdersEquityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders Equityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders Equityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders Equityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(ec) The Representative may resign at any time upon 30 days’ written noticeIn furtherance of, and may be removed for without limiting any reason or no reason by approval from and by written consent of a majority in interest rights of the Stockholders; providedRepresentative set forth in this Section 10.20, howeverthe Representative shall have the right and the Equityholders hereby authorize the Representative, to withhold from the Closing Merger Consideration the Reserve Amount (in no event shall Representative be removed without connection with the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy allocation and distribution of the written consent appointing such new Representative shall be sent Closing Merger Consideration in accordance with Article 3) to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later satisfy potential future obligations of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions Equityholders and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the RepresentativeRepresentative in connection with performing its obligations under this Agreement and the Escrow Agreement. The Securityholders Reserve Amount shall be retained by the Representative until such time as the Representative shall determine, and, subject to the terms of this Agreement, the balance of the Reserve Amount, if any, shall be delivered by the Representative to the Paying Agent for further distribution to the Equityholders as if such amounts were being distributed pursuant to Section 3.6. The Equityholders will not receive any interest or earnings on the Expense Fund Reserve Amount 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event be liable for any loss of bankruptcy. As soon as practicable following the completion principal of the Representative’s responsibilitiesReserve Amount other than as a result of its bad faith or willful misconduct. Notwithstanding the foregoing, the Representative will deliver each Equityholder acknowledges and agrees that there can be no assurances that any remaining balance of the Expense Fund to Kardigan for further distribution Reserve Amount will be paid or disbursed to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”)Equityholders. For U.S. federal and applicable state and local income tax purposes, the Expense Fund will Reserve Amount shall be treated as having been received by the Equityholders at Closing and voluntarily set aside by the Securityholders at Equityholders for the time Representative, such that no withholding is required upon any subsequent transfer or disbursement of Closingthe Reserve Amount (or any portion thereof).
(d) If the Representative becomes unable or unwilling to continue in its capacity as Representative, or if the Representative resigns as the Representative, a majority-in-interest of the Stockholders may by written consent appoint a new representative as the Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of a majority-in-interest of the Stockholders must be delivered to Parent. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Parent.
Appears in 1 contract
Representative. (a) By the adoption Fortis Advisors LLC is hereby constituted and appointed as exclusive agent and attorney‑in‑fact for and on behalf of the Merger, Seller Indemnitors and by virtue of is the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, Representative for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of under this Agreement and the Ancillary Agreements in Escrow Agreement. Without limiting the discretion generality of the Representativeforegoing, the Representative has full power and authority, on behalf of each Seller Indemnitor, to do all things (i) interpret the terms and provisions of this Agreement, any Ancillary Agreement and the documents to perform all actsbe executed and delivered by the Seller Indemnitors in connection herewith, including (1) amending the Ancillary AgreementsEscrow Agreement and the Representative Agreement, (2ii) waiving rights, (3) discharging liabilities execute and obligations, (4) determining, disputing deliver and facilitating the disbursement receive deliveries of the Milestone Payments and (5) executing and delivering all agreements, certificates, receiptsstatements, instructions notices, approvals, extensions, waivers, undertakings, amendments and other instruments contemplated by, documents required or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required permitted to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or given in connection with the Ancillary Agreements, including the determination consummation of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, including the Escrow Agreement, (iii) receive service of process in each case as such connection with any claims under this Agreement, the Escrow Agreement or the Representative Loss is suffered Agreement, (iv) agree to, negotiate and enter into settlements and compromises of, and assume the defense of, claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to any claims under this Agreement, any Ancillary Agreement or incurred; providedany other documents to be executed and delivered by any of the Seller Indemnitors, that and take all actions necessary or appropriate in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct judgment of the RepresentativeRepresentative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) take all actions necessary or appropriate in the judgment of the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything Seller Indemnitors in connection with this Agreement, the Escrow Agreement and the Representative Agreement, (vii) make any determinations and settle any matters in connection with the adjustments to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere Estimated Cash Merger Consideration in this Agreement are not intended Section 2.11 (including authorizing delivery to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal Parent of the Representative Adjustment Escrow Funds or the termination of this Agreement.
any portion thereof), (eviii) The Representative may resign at authorize delivery to any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest Parent Indemnitee of the Stockholders; providedEscrow Funds or any portion thereof in satisfaction of claims brought by any Parent Indemnitee for Losses, however, (ix) in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy case of the written consent appointing such new Representative shall be sent Founders and the Founder Stockholder, authorize delivery to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later any Parent Indemnitee of the date indicated Founder Escrow Funds or any portion thereof in such consent or the date such notice is received satisfaction of claims brought by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
any Parent Indemnitee for Losses (f) Pursuant to Section 2.2(cix), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) By 9.2.1 Appointment. Representative Services LLC is hereby appointed as Representative, to represent the adoption AirPatrol Shareholders in connection with any and all claims for indemnification that Acquiror or any other Indemnified Person may have against any AirPatrol Shareholder under Article 7 of this Agreement, any potential adjustment to the Merger Consideration and any matter related to amount or payment of the Merger, Earnout Payment. The Representative shall have full power and by virtue authority to (i) give and receive notices and communications to or from Acquiror (on behalf of itself or any other Indemnified Party) and/or the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant Escrow Agent relating to this Agreement, each the Escrow Agreement or any of the Securityholders irrevocably nominateContemplated Transactions and other matters contemplated hereby or thereby; (ii) authorize release (including by means of not objecting to claims) to Acquiror of Holdback Shares from the Escrow Account; (iii) object to any claims pursuant to Section 7.13; (iv) consent or agree to, constitute negotiate, enter into settlements and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreementcompromises of, and any related agreementsagree to arbitration and comply with orders of courts and awards of arbitrators with respect to, with full power in itssuch claims; (v) assert, his or her name negotiate, enter into settlements and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representativecompromises of, and agree to do all things arbitration and to perform all actscomply with orders of courts and awards of arbitrators with respect to, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and any other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated claim by any act of Indemnified Party, against any one or more Securityholders, such AirPatrol Shareholders or by operation of applicable lawany such AirPatrol Shareholders against any Indemnified Party or any dispute between any Indemnified Party and any such AirPatrol Shareholders, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ in each case relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, Escrow Agreement or the transactions contemplated hereby or thereby; (vi) make all decisions and no Securityholder shall have the right actions relating to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able any adjustment to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and or the determination, dispute and facilitating the disbursement amount or payment of the Milestone Payments pursuant to Earnout Payment, (vii) amend this Agreement, the Escrow Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement agreement or any other agreement entered into referred to herein or contemplated hereby; (vii) take any and all actions and do any and all things which this Agreement specifies that the Representative can or shall do; and (viii) take all actions necessary or appropriate in connection with the transactions contemplated by this Agreementjudgment of the Representative for the accomplishment of the foregoing, in each case as such Representative Loss is suffered without having to seek or incurred; provided, that in obtain the event that consent of any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) Person under any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereundercircumstance. The foregoing indemnities will survive Person serving as the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written noticetime, and may be removed for any reason or no reason replaced from time to time by approval from and by written consent of the the AirPatrol Shareholders holding a majority in interest of the Stockholders; providedvoting capital stock of AirPatrol immediately prior to the Effective Time of Merger I upon not less than ten days’ prior written notice to Acquiror and with Acquiror’s written consent, howeverwhich shall not be unreasonably withheld, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representativeconditioned or delayed. Notice of such vote or a copy of the written consent appointing such new Representative No bond shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later required of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest Notices or earnings on the Expense Fund and irrevocably transfer and assign communications to or from the Representative any ownership right that they may otherwise have had in any such interest after the Closing shall constitute notice to or earningsfrom each of the AirPatrol Shareholders. The Representative will hold these funds separate from accepts its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closingappointment hereunder.
Appears in 1 contract
Representative. (a) By Each Stockholder by signing this Agreement designates R▇▇▇ ▇▇▇▇▇▇ as its representative and the adoption representative of the MergerStockholders, and by virtue in each case for purposes of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant Transaction Documents (the “Representative”). If R▇▇▇ ▇▇▇▇▇▇ shall be unable to this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint serve as the Representative, as of the Closing, as Stockholders designate H▇▇▇▇▇▇ ▇▇▇▇▇▇ to be the Representative. The Stockholders shall be bound by any and all actions taken by the Representative on their behalf.
(b) The Representative is hereby appointed and constituted the true and lawful agent and attorney in attorney-in-fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreementsStockholder, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements Transaction Documents in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary AgreementsTransaction Documents, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating making all decisions relating to the disbursement determination of the Milestone Payments Purchase Price Adjustment, and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointmentTransaction Documents. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, and shall be irrevocable and shall not be terminated by any act of any one or more SecurityholdersStockholders, or by operation of applicable lawLaw, whether by death or other event.
(bc) All decisions and actions by the Representative, including including, without limitation, any agreement between the Representative and ▇▇▇▇▇▇▇▇ the Buyer relating to the determination of the Merger Consideration and Purchase Price Adjustment, or the determination, dispute and facilitating defense or settlement of any claims for which the disbursement of Stockholders may be required to indemnify the Milestone Payments Buyer Indemnified Parties and/or the Company pursuant to this AgreementArticle VI hereof, shall be binding upon the Securityholdersall Stockholders, and no Securityholder Stockholder shall have the right to object, dissent, protest or otherwise contest the same.
(cd) Each Securityholder By his or her execution of this Agreement, each Stockholder agrees that: (i) Kardigan and its Affiliates the Buyer shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and Purchase Price Adjustment, or the determination, dispute and facilitating settlement of any claims for indemnification by the disbursement of Buyer or the Milestone Payments Company pursuant to this Agreement Article VI hereof or any other actions required to be taken by the Representative under the Ancillary Agreementshereunder, and no Securityholder party hereunder shall have any cause of action against Kardigan or its Affiliates the Buyer for any action taken by such Person the Buyer in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders Stockholders and no Securityholder Stockholder shall have any cause of action against the Representative for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful breach of this Agreement by the Representative; (iviii) the provisions of this Section 1.4 1.6 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder Stockholder may have in connection with the transactions contemplated hereby; (iv) remedies available at law for any breach of the provisions of this Section 1.6 are inadequate; therefore, the Buyer and the Company shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either the Buyer or the Company brings an action to enforce the provisions of this Section 1.6; and (v) the provisions of this Section 1.4 1.6 shall be binding upon the executors, heirs, legal representatives and successors of each SecurityholderStockholder, and any references in this Agreement to a Securityholder Stockholder shall mean and include the successors to such SecurityholderStockholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) By The Representative is hereby irrevocably appointed as the adoption representative, agent, proxy, and attorney-in-fact for all the Securityholders for all purposes under this Agreement, the Escrow Agreement and the Payment Agent Agreement, including the full power and authority on the Securityholders’ behalf: (i) to consummate the transactions contemplated under this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (ii) to negotiate and settle disputes arising under, or relating to, this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (iii) to receive and disburse to the Securityholders any funds received on behalf of the MergerSecurityholders under this Agreement, the Escrow Agreement and by virtue the Payment Agent Agreement or otherwise, (iv) to withhold any amounts received on behalf of the execution of Securityholders pursuant to this Agreement and/or acceptance of any benefits thereofand the Escrow Agreement, including the Representative Holdback Amount, or otherwise to satisfy any consideration and all obligations or liabilities incurred by the Securityholders or the Representative in the performance of their duties hereunder, (v) to direct the distribution of funds, designate or engage a paying agent to distribute funds (including the Closing Date Cash Merger Consideration, the Adjustment Amount, if any, payable pursuant in accordance with Section 3.7 and funds from the Escrow Account and the Representative Holdback Amount), make or direct payments of funds from the Representative Holdback Amount, give receipts for funds, authorize deliveries to Parent of cash from the Escrow Account in satisfaction of claims asserted by Parent and object to any claims by any Person against the Escrow Account, (vi) to execute and deliver any amendment or waiver to this Agreement, each the Escrow Agreement and the Payment Agent Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of the Securityholders) and (vii) to take all other actions to be taken by or on behalf of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Escrow Agreement and the Ancillary Agreements in Payment Agent Agreement and the discretion of the Representativeother agreements, instruments, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments documents contemplated by, hereby or deemed advisable executed in connection with, the Ancillary Agreementsherewith. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all The Securityholders, by approving this Agreement (whether by vote or by execution of a Letter of Transmittal), further agree that such agency and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is proxy are coupled with an interest, is granted in consideration are therefore irrevocable without the consent of the mutual covenants and agreements made herein, shall be irrevocable Representative and shall not be terminated by any act survive the death, incapacity, bankruptcy, dissolution or liquidation of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) Securityholder. All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon all of the Securityholders, Securityholders and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same. The Representative shall not have the authority to increase the Liability of any Securityholder on a non pro rata basis. If an allocation is not otherwise provided for in this Agreement, the Representative shall distribute funds to the Securityholders in accordance with their respective Pro Rata Share. Parent may conclusively rely, without independent verification or investigation, upon any such decision or action of the Representative as being the binding decision or action of every Securityholder, and Parent shall not be liable to any Securityholder or any other Persons for any actions taken or omitted from being taken by them or by Parent in accordance with or reliance upon any such decision or action of the Representative. The Representative shall have no duties or obligations to the Securityholders hereunder, except as expressly set forth in this Agreement. By its approval of, or consent to, the Merger and the adoption of this Agreement, its acceptance of any consideration pursuant to this Agreement or delivery of a Letter of Transmittal, each Securityholder hereby irrevocably approves and adopts the appointment of the Representative as such Securityholder’s representative, agent, proxy, and attorney-in-fact.
(b) By the approval of this Agreement, each Securityholder hereby severally, for itself only and not jointly, and up to its Pro Rata Share, agrees to indemnify and hold harmless the Representative and its partners, managers, officers, agents and other representatives against all expenses (including reasonable attorneys’ fees), judgments, fines and amounts incurred by such Persons in connection with any 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, other than as a result of the Representative’s bad faith or willful misconduct.
(c) Each Neither the Representative nor any of its members, managers, officers, agents or other representatives shall incur any Liability to any Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions by virtue of the Representative as to the determination failure or refusal of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates such Persons for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required reason to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with consummate the transactions contemplated hereby; hereby or relating to the performance of their duties hereunder, except for actions or omissions constituting bad faith or willful misconduct. The Representative and (v) the provisions its members, managers, officers, agents and other representatives shall have no Liability in respect of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each any Proceeding brought against such Persons by any Securityholder, and any references in this Agreement regardless of the legal theory under which such Liability may be sought to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunderbe imposed, whether pursuant to testamentary dispositionsounding in contract or tort, the laws of descent and distribution or whether at law or in equity, or otherwise, unless such Persons took or omitted taking any action in bad faith or as result of willful misconduct.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to shall have the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreementright, in each case as such Representative Loss is suffered or incurred; providedits sole discretion, that in the event that to recover from any such Representative Loss is finally adjudicated to have been caused amounts withheld by the bad faith, fraud, gross negligence or willful misconduct of the Representative, including the Representative will reimburse Holdback Amount, its reasonable and documented out‑of‑pocket expenses incurred in the Securityholders performance of its duties hereunder (the amount of such indemnified Representative Loss to “Charges”). In the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by event the Representative from (i) the funds in the Expense Fund and (ii) Holdback Amount is insufficient to satisfy such deficit, each Securityholder will be obligated to pay any other funds that become payable to the Securityholders under this Agreement at such time as such remaining unpaid amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closingon a several, resignation or removal of the Representative or the termination of this Agreementand not joint, basis, up to each such Securityholder’s Pro Rata Share.
(e) In furtherance of, and without limiting any rights of the Representative set forth in Sections 10.15(a)(iv), 10.15(a)(v) and Section 10.15(d), the Representative shall have the right, and the Securityholders hereby authorize the Representative, to withhold from the Closing Date Merger Consideration the Representative Holdback Amount (in connection with the allocation and distribution of the Closing Date Merger Consideration in accordance with Article III) to satisfy potential future obligations of the Securityholders and expenses incurred by the Representative in connection with performing its obligations under this Agreement and the Escrow Agreement. The Representative may resign at any Holdback Amount shall be retained by the Representative until such time upon 30 days’ written noticeas the Representative shall determine, and may be removed for any reason or no reason by approval from and by written consent and, subject to the terms of a majority in interest this Agreement, the balance of the Stockholders; providedRepresentative Holdback Amount, howeverif any, in no event shall be delivered by the Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account paying agent designated by the Representative (to the “Expense Fund”Securityholders as if such amounts were being distributed pursuant to Section 3.8(a)(i)(1), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the Expense Fund Representative Holdback Amount 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 hold these funds separate from not be liable for any loss of principal of the Representative Holdback Amount other than as a result of its corporate funds gross negligence or willful misconduct. The Representative Holdback Amount shall be held in an FDIC-insured account or accounts at a nationally recognized financial institution.
(f) Following the Closing Date, a majority‑in‑interest of the Securityholders may, by written consent, appoint a new representative as the Representative. Notice, together with a copy of the written consent appointing such new representative and bearing the signatures of a majority‑in‑interest of the Securityholders, must be delivered to Parent not less than ten (10) days prior to such appointment. Such appointment will not voluntarily make these funds available to its creditors be effective upon the later of the date indicated in the consent or the date such consent is received by Parent.
(g) In the event of bankruptcy. As soon that the Representative becomes unable or unwilling to continue in its capacity as practicable following Representative, or if the completion Representative resigns as the Representative, a majority‑in‑interest of the Securityholders may by written consent appoint a new representative as the Representative’s responsibilities, ; provided that any such resignation by the Representative will deliver any remaining balance shall not be effective until the appointment of a new representative as the Representative. Notice and a copy of the Expense Fund to Kardigan for further distribution to written consent appointing such new representative and bearing the signatures of a majority‑in‑interest of the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”)must be delivered to Parent. For tax purposes, the Expense Fund Such appointment will be treated as having been effective upon the later of the date indicated in the consent or the date such consent is received and voluntarily set aside by the Securityholders at the time of ClosingParent.
Appears in 1 contract
Sources: Merger Agreement (Brunswick Corp)
Representative. (a) By the adoption of the Merger, and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant Subject to this AgreementSection 10.21(b), each of the Securityholders Seller shall be deemed to have irrevocably nominateconstituted, constitute appointed, authorized, directed and appoint the Representativeempowered, effective as of the Closing, the Representative to act as the true sole and lawful agent exclusive agent, attorney-in-fact and attorney in fact representative of each Securityholder, for all purposes in connection with this Agreement, and any related agreementssuch Seller, with full power in itsof substitution, his or her name and on its, his or her behalf with respect to act according to the terms of all matters under this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all actsagreements ancillary hereto, including (1) amending the Ancillary Agreementsgiving and receiving notices hereunder, (2) waiving rightsentering into any amendment or modification hereof, (3) discharging liabilities and obligationsengaging special counsel, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and accountants or other instruments contemplated by, advisors or deemed advisable in connection with, the Ancillary Agreements. Any and all incurring such actions taken by the Representative other expenses on behalf of the Securityholders as provided Sellers, holding back from disbursement to any Seller any such funds to the extent it reasonably determines may be necessary or required under the terms and conditions of this Agreement or applicable Law, negotiating, settling, compromising or otherwise resolving any dispute hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney (including any disputes relating to the Adjustment Escrow Amount) or doing any and all authority hereby conferred is coupled things and taking any and all actions, in each case that the Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with an interest, is granted or to carry out the transactions contemplated by this Agreement or any other documents or instruments entered into in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other eventconnection herewith.
(b) All decisions Notwithstanding Section 10.21(a), if a matter relates solely to Blocker or the Blocker Seller and actions by could not reasonably be expected to adversely affect any Non-Blocker Seller, then the Representative, including ability to take any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating action (or refrain from taking any action) with respect to such matter is hereby delegated solely to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the sameBlocker Seller.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of Neither the Representative as nor any of its officers, directors, managers, employees, agents or representatives shall incur any responsibility or liability whatsoever to the determination any Seller by reason of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or any such other actions required to be taken by the Representative under the Ancillary Agreementsagreement, and no Securityholder shall have any cause of action against Kardigan instrument or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreementsdocument, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence any act or failure to act constitutes fraud or willful misconduct. The Representative shall not be liable for any action or omission pursuant entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue. The Securityholders will Representative shall not be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement. Each Seller shall, severally and not jointly, indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement execution and performance of its rights under this Agreement or any other agreement entered into in connection with and the transactions contemplated by this Agreementagreements ancillary hereto, in each case as such Representative Loss is suffered or incurred, on a pro rata basis consistent with the Payout Schedule; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the bad faith, fraud, gross negligence fraud or willful misconduct of the Representative, the Representative will reimburse the Securityholders Sellers the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence fraud or willful misconduct. If not paid directly to the Representative by the Sellers, any such Representative Losses may be recovered by the Representative from (i) the funds in the Representative Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement amounts in the Adjustment Escrow Account at such time as such remaining amounts would otherwise be distributable to the SecurityholdersSellers; provided, that while this section allows the Representative may to be paid from the aforementioned sources of fundsRepresentative Expense Fund and the Adjustment Escrow Account, this does not relieve the Securityholders from Sellers of their obligation to promptly pay such Representative Losses ▇▇▇▇▇▇ as they are suffered or incurredincurred (consistent with the allocation in the immediately preceding sentence), nor does it prevent the Representative from seeking any remedies available to it at law or otherwise. In Notwithstanding anything to the contrary in this Agreement, in no event will the Representative be required to advance its own funds on behalf of the Securityholders Sellers or otherwise. Notwithstanding anything The Representative may consult with counsel of its own choice and will have full and complete authorization and protection for any action taken and suffered by it in this Agreement to good faith and in accordance with the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunderopinion of such counsel. The foregoing indemnities will indemnity obligations of this Section 10.21(c) shall survive the Closing, the resignation or removal of the Representative or the any termination of this AgreementAgreement pursuant to Section 9.02.
(ed) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled have the right to rely on upon all actions taken or omitted to be taken by the decisions Representative hereunder or in connection with this Agreement. All decisions, actions, consents and actions instructions of the prior Representative as described hereinauthorized to be made, taken or given pursuant to this Section 10.21 shall be final and binding upon all the Sellers, and no Seller shall have any right to object, dissent, protest or otherwise contest the same.
(fe) Pursuant to Section 2.2(c), at At the Closing, Kardigan ▇▇▇▇▇ shall depositdeliver to the Representative the Representative Expense Fund, on behalf of to be held to cover and reimburse the Securityholdersfees, the Expense Fund Amount to an account designated expenses and other monetary obligations incurred by the Representative (in connection with the “carrying out by the Representative of its duties under this Agreement. The Representative Expense Fund”), which Fund will be used for the purposes of paying directly, or reimbursing the Representative for, any expenses incurred by the Representativethird party expenses, charges or liabilities pursuant to this Agreement and any agreements ancillary hereto. The Securityholders Sellers 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 fraud or willful misconduct. 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. .
(f) As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining (or will cause to be delivered) the balance of the Representative Expense Fund to Kardigan for further distribution the Sellers the portion of the balance of the Representative Expense Fund such holder is entitled to the Securityholders receive in accordance with this Agreement and the Payout Schedule. In the event that any amount is owed to the Representative, whether for fees, expense reimbursement or indemnification, that is in excess of the amounts remaining in the Representative’s Expense Fund, the Representative shall be entitled to be reimbursed by the Sellers on a pro rata basis (consistent with the allocation in the immediately preceding sentence), and the Sellers shall so reimburse the Representative. Upon written notice from the Representative to the Sellers as to any such owed amount, including a reasonably detailed description as to such owed amount, each Seller shall promptly deliver to the Representative full payment of his, her or its pro rata share of such owed amount (determined on a basis consistent with the allocation in the first sentence of this Section 2.3(d) (the “Expense Fund Distribution”10.21(f)). For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders Sellers at the time of Closing.
Appears in 1 contract
Sources: Securities Purchase Agreement (e.l.f. Beauty, Inc.)
Representative. (a) By the adoption Without any further act of any of the MergerStockholders or the other Holders, and by virtue the Representative is hereby appointed as the representative of the execution Holders and as the attorney-in-fact and agent for and on behalf of this Agreement and/or acceptance each Holder for purposes of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominateEscrow Agreement, constitute the Paying Agent Agreement, the other Transaction Documents and appoint the Representative, as of the Closing, as the true any other agreements and lawful agent and attorney in fact of each Securityholder, for all purposes documents executed or delivered in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all shall take such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under this Agreement, the Ancillary AgreementsEscrow Agreement, the Paying Agent Agreement, the other Transaction Documents and any other agreements and documents executed or delivered in connection with this Agreement and such other actions on behalf of such Holders as it may deem necessary or appropriate in connection with or to consummate the Transactions, including (i) executing and delivering this Agreement, the Escrow Agreement, the Paying Agent Agreement, the other Transaction Documents and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representative, in its sole discretion, shall have consented, (ii) taking all actions and making all filings on behalf of such Holders with any Governmental Body or other Person necessary to effect the consummation of the Transactions, (iii) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims under this Agreement, the Escrow Agreement, the Paying Agent Agreement, the other Transaction Documents on behalf of such Holders, (iv) satisfying from the Indemnity Escrow Account and Working Capital Escrow Account costs, expenses and/or Liabilities incurred by the Representative in its capacity as the Representative and otherwise in accordance with this Agreement, the Escrow Agreement, the Paying Agent Agreement, the other Transaction Documents, and (v) taking all other actions that are either necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement, the Escrow Agreement, the Paying Agent Agreement, the other Transaction Documents. The Representative hereby accepts such appointment. The appointment of the Representative as each Holder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Holder with regard to this Agreement, the Escrow Agreement, the Paying Agent Agreement, the other Transaction Documents and any other agreements or documents executed or delivered in connection with this Agreement. The Representative is the sole and exclusive representative of each of the Holders for any purpose provided for by this Agreement. The Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Holders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Holders. Each Holder shall promptly provide written notice to the Representative of any change of address of such Holder.
(b) A decision, act, consent or instruction of the Representative hereunder shall constitute a decision, act, consent or instruction of all Holders and shall be final, binding and conclusive upon each such Holder, and Parent, the Surviving Corporation, the Escrow Agent and the Paying Agent may rely upon any such decision, act, consent or instruction of the Representative as being the decision, act, consent or instruction of each and every such Holder. Parent, the Surviving Corporation, the Escrow Agent and the Paying Agent shall be relieved from any Liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Representative.
(c) The Representative shall incur no Securityholder shall have any cause of action against Kardigan or its Affiliates for liability with respect to any action taken or suffered by such Person any Holder in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Representative to be genuine and to have been signed by such Holder, nor for any other action or inaction, except the instructions gross negligence, bad faith or decisions willful misconduct of the Representative; . In all questions arising under this Agreement, the Escrow Agreement, the Paying Agent Agreement, the other Transaction Documents the Representative may rely on the advice of outside counsel, and the Representative shall not be liable to any Holder for anything done, omitted or suffered in good faith by Representative based on such advice.
(iid) Kardigan The Holders shall be required to file severally (each based on its Holder Indemnification Percentage) but not jointly indemnify the Representative and negotiate hold the Representative harmless against any claims loss, liability or disputes related to 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 Ancillary Agreementsacceptance or administration of the Representative’s duties hereunder, including the determination reasonable fees and expenses of any legal counsel or other advisors reasonably retained by the Representative. All fees and expenses incurred by the Representative in performing its duties shall be borne by the Holders in accordance with their respective Holder Indemnification Percentage, provided that such fees and expenses shall first be funded from the Representative Cost Escrow Account. In the event that the Representative determines that he is entitled to be reimbursed or advances any such fees and expenses, he will notify the Escrow Agent of the Merger Consideration same in writing, in which event the Escrow Agent shall disburse the amount of such fees and the determination, dispute and disbursement of the Milestone Payments only with expenses to the Representative (on behalf up the amount of the Securityholdersremaining Representative Cost Escrow Amount). Parent, Surviving Corporation, and their Affiliates will have no duty to investigate or evaluate any request by the Representative for reimbursement or advancement of fees or expenses, and Holders hereby waive and release Parent, Surviving Corporation, and their Affiliates from any and all claims, damages, liabilities, or expenses for Parent’s reliance on any written notice or request from Representative in this regard.
(e) and not with each Securityholder; At any time Holders representing at least seventy percent (iii70%) all actions, decisions and instructions in interest of the Representative Holders may, by written consent, appoint another Person as Representative. Notice together with a copy of the written consent appointing such Person and bearing the signatures of Holders of at least seventy percent (70%) in interest of the Holders must be delivered to Parent and, if applicable, the Escrow Agent and the Paying Agent not less than ten (10) days prior to such appointment. Such appointment shall be conclusive effective upon the later of the date indicated in the consent or the date ten (10) days after such consent is received by Parent and, if applicable, the Escrow Agent and binding upon all Securityholders and no Securityholder shall have any cause of action against Paying Agent. For the Representative; (iv) the provisions purposes of this Section 1.4 are independent 9.01, “seventy percent (70%) in interest of the Holders” shall mean Holders representing in the aggregate at least seventy percent (70%) of the percentage interests in the Aggregate Merger Consideration.
(f) In the event that the Representative becomes unable or unwilling to continue in his or its capacity as the Representative, or if the Representative resigns as a Representative, Holders representing at least seventy percent (70%) in interest of the Holders may, by written consent, appoint a new representative as the Representative. Notice and severablea copy of the written consent appointing such new representative and bearing the signatures of the Holders of at least seventy percent (70%) in interest of the Holders must be delivered to Parent and, are irrevocable if applicable, the Escrow Agent and Paying Agent. Such appointment shall be effective upon the later of the date indicated in the consent or the date ten (10) days after such consent is received by Parent and, if applicable, the Escrow Agent and Paying Agent.
(g) The grant of authority provided for herein (i) is coupled with an interest and shall be enforceable notwithstanding irrevocable and survive the death, incompetency, bankruptcy or liquidation of any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; Holder, and (vii) shall survive the consummation of the Merger. The provisions of this Section 1.4 9.01 shall be binding upon the executors, heirs, legal representatives representatives, successors and successors assigns of each SecurityholderHolder, and any references in this Agreement to a Securityholder any Holder or the Holders shall mean and include the successors to such SecurityholderHolder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Sources: Merger Agreement (Health Insurance Innovations, Inc.)
Representative. (a) By The Representative designated by Seller pursuant to Section 7.07(a) shall act as an agent, attorney-in-fact and representative of Seller and its assignees, successors and members, with full power of substitution to act in the adoption name, place and stead of the Mergersuch parties, to act on behalf of such parties in connection with: (i) controlling and by virtue making any determinations with respect to any matters set forth in Sections 2.04 and 4.02; (ii) signing on behalf of the execution of such parties any releases or other documents with respect to any dispute or remedy arising under this Agreement and/or acceptance of or any benefits thereof, including any consideration payable pursuant documents to this Agreement, each of which the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney Representative is a party or otherwise has rights in fact of each Securityholder, for all purposes in connection such capacity (together with this Agreement, the “Representative Documents”); (iii) employing and any related agreementsobtaining the advice of legal counsel, with full power in its, his or her name accountants and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of other professional advisors as the Representative, in its reasonable discretion, deems necessary or advisable in the performance of its duties as the Representative and to do all things rely on their advice and to perform all actscounsel; (iv) incurring and paying reasonable out-of-pocket costs and expenses, including (1) amending fees of brokers, attorneys and accountants incurred pursuant to the Ancillary Agreementstransactions contemplated hereby, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing any other out-of-pocket fees and facilitating the disbursement of the Milestone Payments expenses allocable or in any way relating to such transaction or any indemnification claim; and (5v) executing otherwise enforcing the rights and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all obligations of any such actions taken by parties under the Representative Documents, including giving and receiving all notices and communications hereunder or thereunder on behalf of such parties; provided, that the Securityholders as provided hereunder shall be binding Representative is specifically authorized and directed to act on all Securityholdersbehalf of, and Shareholder Representative Services LLC hereby accepts such appointmentfor the benefit of, Seller and its members. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ the Purchaser relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to any disputes under this Agreement, shall be binding upon the SecurityholdersSeller and its members, successors and assigns, and no Securityholder neither they nor any other party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 7.08 are irrevocable and coupled with an interest. In the event of any distribution of the Holdings Class B Units and Purchaser Class V Shares by Seller to its members, the members of Seller, as a condition to receiving such distribution, shall irrevocably appoint the Representative as their agent, attorney-in-fact and representative, with the indemnities, immunities, releases and powers granted by the Seller under this Section 7.08 (with the obligations of such members being pro rata among the members based on the distribution received).
(cb) Each Securityholder agrees that: (i) Kardigan Any other Person, including the Purchaser, may conclusively and its Affiliates absolutely rely, without inquiry, upon any actions of the Representative as the acts of Seller under any Representative Documents. The Purchaser shall be able entitled to rely conclusively on the instructions and decisions of the Representative as to (i) any payment instructions provided by the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement Representative or (ii) any other actions required or permitted to be taken by the Representative under the Ancillary Agreementsany Representative Document, and no Securityholder Seller shall not have any cause of action against Kardigan the Representative or its Affiliates the Purchaser for any action taken by such Person any of them in reliance upon the instructions or decisions of the Representative; (ii) Kardigan . All notices or other communications required to be made or delivered to a member of Seller under any Representative Document shall be required made to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf for the benefit of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholdersuch Seller member, and any references notices so made shall discharge in this Agreement to a Securityholder shall mean and include full all notice requirements of the successors other parties hereto or thereto to such Securityholder’s rights hereunder, whether pursuant Seller member with respect thereto. All notices or other communications required to testamentary disposition, be made or delivered by a Seller member shall be made by the laws of descent and distribution or otherwiseRepresentative.
(dc) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action act done or omission omitted under any Representative Document as the Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counselcounsel shall be conclusive evidence of such good faith. The Securityholders will Seller and its members shall indemnify, defend and hold harmless the Representative from and against any and all losses, actions, orders, liabilities, damages, claims, penalties, fines, forfeitures, actions, feesamounts paid in settlement, costs and expenses (including the reasonable expenses of investigation and court costs and reasonable attorney’s fees and expenses expenses) incurred without gross negligence, bad faith or willful misconduct on the part of counsel the Representative (in its capacity as such) and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement acceptance or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct administration of the Representative’s duties under any Representative Document, including the Representative will reimburse the Securityholders the amount reasonable fees and expenses of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered any legal counsel retained by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurredRepresentative. In no event will shall the Representative in such capacity be required liable under or in connection with any Representative Document for any indirect, punitive, special or consequential damages. The Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to advance be genuine, including facsimiles or copies thereof, and no Person shall have any liability for relying on the Representative in the foregoing manner. In connection with the performance of its own funds on behalf rights and obligations hereunder, the Representative shall have the right at any time and from time to time to select and engage, at the cost and expense of the Securityholders Seller and its members, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other out-of-pocket expenses, as the Representative may deem necessary or otherwiseappropriate from time to time. Notwithstanding anything in this Agreement to All of the contraryindemnities, any restrictions or limitations on liability or indemnification obligations ofimmunities, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided releases and powers granted to the Representative hereunder. The foregoing indemnities will under this Section 7.08 shall survive the Closingexecution of this Agreement and continue indefinitely.
(d) The Person serving as the Representative may resign upon 10 days’ prior written notice to the Purchaser. If the Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the Seller and its members, then Seller shall, within 10 days after such death, disability, dissolution, resignation or removal of the other event, appoint a successor Representative (by vote or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of Seller’s members holding in the aggregate a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately voting equity interests of Seller (or upon the removal liquidation of Representative. Notice Seller, the holders of a majority of the Seller Consideration Units (as such term is defined in the Business Combination Agreement)), and promptly thereafter (but in any event within two Business Days after such appointment) notify the Purchaser in writing of the identity of such vote or a copy successor. Each successor Representative shall have all of the written consent appointing such new Representative power, authority, rights and privileges conferred by this Agreement upon the original Representative, and the term “Representative” as used herein shall be sent deemed to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in include any such interest or earnings. The Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closingsuccessor Representatives.
Appears in 1 contract
Representative. (a) By the adoption of the Merger, Each Equityholder hereby irrevocably constitutes and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, appoints Seller as the true “Representative” for the purpose of performing and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with consummating the transactions contemplated by this Agreement, in each case and appoints the Representative as the agent and true and lawful attorney-in- fact of such Representative Loss is suffered or incurred; providedEquityholder, that with full power of substitution, to act in the event that name, place, and stead of such Equityholder for purposes of executing any such documents and taking, or refraining from taking, any actions the Representative Loss determinates to be necessary, desirable, or appropriate in connection with this Agreement or the other Transaction Documents. The appointment of Seller as the Representative is finally adjudicated coupled with an interest and all authority hereby conferred shall be irrevocable and the Representative is hereby authorized and directed to have been caused perform and consummate on behalf of the Equityholders all of the transactions contemplated by this Agreement and the bad faith, fraud, gross negligence or willful misconduct Transaction Documents.
(b) Not by way of limiting the authority of the Representative, each and all of Equityholders, for themselves and their respective heirs, executors, administrators, successors and assigns, hereby authorize the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from to:
(i) waive any provision of this Agreement which the funds in the Expense Fund and Representative deems necessary or desirable; (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds execute and deliver on behalf of the Securityholders Equityholders all documents and instruments which may be executed and delivered pursuant to this Agreement and the Transaction Documents, including without limitation the Company Units and any transfer documentation with respect thereto; (iii) calculate, negotiate and agree to any adjustments to the Purchase Price; (iv) make and receive notices and other communications pursuant to this Agreement and service of process in any legal action or other proceeding arising out of or related to this Agreement or any of the transactions contemplated hereunder; (v) contest, negotiate, defend, compromise or settle any action, Claims or disputes arising out of or related to this Agreement or any of the transactions contemplated hereunder through counsel selected by the Representative and solely at the cost, risk and expense of the Equityholders; (vi) satisfy any indemnification amounts owed pursuant to the terms herein (vii) agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such indemnification obligations or actions, Claims or disputes; (viii) resolve any actions, Claims or disputes arising from the Equityholders’ indemnification obligations hereunder; (ix) take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated hereby by arbitration, settlement or otherwise. Notwithstanding anything in this Agreement ; (x) receive and distribute all or any portion of the Purchase Price or any other payment owing to the contraryEquityholders hereunder in accordance with the terms herein or therein; (xi) appoint or provide for successor agents; (xii) select, retain, hire and consult with legal counsel, independent public accountants and other experts, solely at the cost and expense of the Equityholders; (xiii) pay expenses incurred or which may be incurred by or on behalf of any restrictions Equityholder in connection with this Agreement; and (xiv) take or limitations on liability forego any or indemnification obligations of, all actions permitted or provisions limiting required of any Equityholder or necessary in the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal judgment of the Representative or for the termination accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement.
(ec) The Each Equityholder agrees that the Representative may resign at shall have no liability to the Equityholders for any time upon 30 days’ written noticeact or omission by the Representative as permitted under this Section 9.16, excepting only actions taken in bad faith, and each Equityholder hereby irrevocably waives and releases any Claims it may be removed have against the Representative for his acts and omissions hereunder other than any reason or no reason by approval from and by written consent of a majority actions taken in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described hereinbad faith.
(fd) Pursuant to Section 2.2(c)EACH EQUITYHOLDER UNDERSTANDS AND ACKNOWLEDGES THAT HE OR SHE IS: (A) AUTHORIZING THE REPRESENTATIVE TO ACT FOR THE EQUITYHOLDERS, at the ClosingCOLLECTIVELY AND INDIVIDUALLY, Kardigan shall depositWITH BROAD POWERS; AND (B) AGREEING THAT THE REPRESENTATIVE WILL NOT BE LIABLE TO THE EQUITYHOLDERS, on behalf of the SecurityholdersCOLLECTIVELY OR INDIVIDUALLY, the Expense Fund Amount to an account designated by the Representative UNLESS THE REPRESENTATIVE ACTS IN BAD FAITH. EACH EQUITYHOLDER FURTHER ACKNOWLEDGES THAT HE OR SHE HAS BEEN ADVISED TO SEEK INDEPENDENT AND SEPARATE COUNSEL PRIOR TO SIGNING THIS AGREEMENT AND HAS HAD THE OPPORTUNITY TO DO SO. (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in e) In the event of bankruptcy. As soon the failure or refusal of Seller to act as practicable following the completion Representative the Equityholders shall promptly appoint one of the Representative’s responsibilities, the Representative will deliver any remaining balance Equityholders as their agent for purposes of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with this Agreement and this Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing9.16.
Appears in 1 contract
Representative. (a) By the adoption As an integral component of the Merger, terms and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms conditions of this Agreement and the Ancillary Agreements in Merger, the discretion Representative is hereby irrevocably appointed, authorized and empowered as the representative of the RepresentativeEquityholders, Blocker Seller and to do all things their respective successors and to perform all acts, including (1) amending permitted assigns for the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities purposes specified in this Agreement and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any Escrow Agreement and all such actions taken by the Representative hereunder and thereunder will be binding upon all such Equityholders, Blocker Seller and their respective successors. The Representative may take any and all actions which it believes are necessary or appropriate in connection with the purposes for which it serves as the Representative as specified in this Agreement and the Escrow Agreement for and on behalf of the Securityholders as provided hereunder shall be binding on all SecurityholdersEquityholders and Blocker Seller, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interestincluding, is granted in consideration of the mutual covenants and agreements made hereinwithout limitation, shall be irrevocable and shall not be terminated by any act of any one approving or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to contesting the determination of the Merger Consideration Total Equity Value and the determinationBlocker Adjustment (or any elements thereof) pursuant to Section 3.7 and all actions in connection with any distributions to be made in respect thereof pursuant to Section 3.8, dispute consenting to, compromising or settling all claims and facilitating matters in connection with such determination or distributions, conducting negotiations with Parent and other applicable counterparties and their agents regarding claims and matters in connection with such determination or distributions, dealing with Parent, the disbursement Surviving Entity and its Subsidiaries, and the Escrow Agent, under this Agreement and the Escrow Agreement, as applicable, in connection with such determination or distributions, and engaging counsel, accountants or other representatives on behalf of the Milestone Payments pursuant to this Agreement, shall be binding upon Equityholders and Blocker Seller in connection with the Securityholders, and no Securityholder shall have foregoing matters. Without limiting the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions generality of the foregoing, the Representative as will have full power and authority on behalf of the Equityholders and Blocker Seller to interpret all of the terms and provisions of this Agreement and the Escrow Agreement in connection with the determination of the Merger Consideration Total Equity Value and the determination, dispute and facilitating the disbursement of the Milestone Payments Blocker Adjustment (or any elements thereof) pursuant to Section 3.7 and all actions in connection with any distributions to be made in respect thereof pursuant to Section 3.8 and to consent to any waiver of this Agreement or the Escrow Agreement, or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions amendment of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Escrow Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of all such Equityholders and Blocker Seller and their respective successors and permitted assigns in connection with the Securityholders determination of the Total Equity Value and the Blocker Adjustment (or otherwise. Notwithstanding anything any elements thereof) pursuant to Section 3.7 and all actions in connection with any distributions to be made in respect thereof pursuant to Section 3.8; provided that, notwithstanding the foregoing, this Agreement to the contrary, any restrictions may only be amended or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders modified in accordance with Section 2.3(d) (the “Expense Fund Distribution”)15.2. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of ClosingThe Representative hereby accepts such appointment.
Appears in 1 contract
Representative. (a) By In order to efficiently administer the transactions contemplated hereby, including any actions that the Representative may, in its sole discretion, determine to be necessary, desirable or appropriate in connection with the matters set forth in Sections 1.6 and 1.7, the Company Stockholders, by their adoption of this Agreement and the approval of the Merger, and by virtue of the execution of this Agreement and/or their acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each Merger Consideration and/or the completion and execution of the Securityholders irrevocably nominateLetters of Transmittal or other agreement or documentation that may be required with respect to the Company Stockholders, constitute and appoint hereby designate the RepresentativeRepresentative as their representative, as of the Closing, as the true and lawful attorney-in-fact and exclusive agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreementsset forth herein, with full power in itshis, his her or her its name and on itshis, his her or her its behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the RepresentativeAgreement, and to do hereby authorize the Representative to:
(i) take all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated actions required or permitted by, or deemed advisable in connection withand exercise all rights granted to, the Ancillary Agreements. Any and all such actions taken by Representative in this Agreement, the Escrow Agreement or the Representative Engagement Agreement;
(ii) review the Closing Statement, deliver any Objection Notice with respect thereto, and discuss, negotiate, resolve and fully and finally settle on behalf of the Securityholders Company Stockholders, any Objection Items or other disputes with respect to the determination of Closing Indebtedness, Unpaid Company Transaction Expenses, Closing Net Working Capital and the final determination of any adjustment to the Total Merger Consideration pursuant to Section 1.6;
(iii) take all action necessary in connection with the waiver of any condition to the obligations of the Company or the Company Stockholders to consummate the transactions contemplated hereby;
(iv) discuss, negotiate, resolve and fully and finally settle on behalf of the Company Stockholders any claims for indemnification by any Indemnified Party pursuant to this Agreement;
(v) give and receive notices and communications to or from Buyer (on behalf of itself or any other Indemnified Party) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the transactions and other matters contemplated hereby or thereby;
(vi) receive and accept service of legal process in connection with any claim or other proceeding against the Company Stockholders or the Company arising under this Agreement or the Escrow Agreement;
(vii) negotiate, undertake, compromise, defend, resolve and settle any suit, proceeding or dispute under this Agreement or the Escrow Agreement on behalf of the Company Stockholders; execute and deliver all agreements, certificates and documents required or deemed appropriate by the Representative, in his/her/its capacity as provided hereunder shall be binding on the Representative, in connection with any of the transactions contemplated by this Agreement (including executing and delivering the Escrow Agreement);
(viii) execute and deliver all Securityholdersagreements, certificates and documents required or deemed appropriate by the Representative in connection with any of the transactions contemplated by this Agreement (including executing and delivering the Escrow Agreement);
(ix) engage special counsel, accountants and other advisors and incur such other expenses in connection with any of the transactions contemplated by this Agreement or the Escrow Agreement;
(x) to the fullest extent permitted by Law, agree to and approve of modifications or amendments to this Agreement or to the Escrow Agreement, and Shareholder Representative Services LLC hereby accepts executing and delivering agreements of such appointment. This power of attorney modification or amendment; and
(xi) to the fullest extent permitted by Law, take all other actions (including defending or enforcing any actions, and all authority hereby conferred is coupled with an interestto make, is granted deliver and sign any certificate, notice, consent or instrument required or permitted to be made or delivered under this Agreement or under the documents referred to in consideration this Agreement) necessary or appropriate in the reasonable judgment of the mutual covenants and agreements made Representative in connection with any transaction contemplated hereunder or for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any Circumstance. Notwithstanding the foregoing, the Representative (i) shall have no obligation to act on behalf of the Company Stockholders, except as expressly provided herein, shall be irrevocable in the Escrow Agreement, Paying Agent Agreement and shall in the Representative Engagement Agreement and for purposes of clarity, other than as set forth herein, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule and (ii) may not be terminated by any act amend, alter, modify, waive or otherwise change the limitations on the indemnification obligations of any one or more Securityholders, or by operation the LDS Church as set forth in Section 8.6 without the written consent of applicable law, whether by death or other eventthe LDS Church.
(b) All decisions and actions by Fortis Advisors LLC hereby accepts its appointment as the initial Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan Any notice or communication given or received by, and its Affiliates any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Representative 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 the Company Stockholders and shall be able final, binding and conclusive upon each such Company Stockholder and such Company Stockholder’s successors; and Buyer, each Indemnified Party and the Escrow Agent shall be entitled to rely conclusively on upon any 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 Company Stockholder. To the instructions and decisions of fullest extent permitted by Law, the Representative as to the determination of the Merger Consideration Buyer, each Indemnified Party and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant Escrow Agent are hereby relieved from any liability to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates Person for any action taken acts done by them in accordance with any such Person in reliance upon the instructions notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or decisions instruction of the Representative; .
(iid) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative The Joining Company Stockholders hereby agree that:
(on behalf of the Securityholders) and not with each Securityholder; (iiii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and each of the Joining Company Stockholders, and, to the fullest extent permitted by Law, no Securityholder Joining Company Stockholders shall have any cause of action against the Representative for any action taken, decision made or instruction given by the Representative in connection with this Agreement, the Representative Engagement Agreement or the agreements ancillary hereto, except for fraud or willful misconduct on the part of the Representative; ;
(ivii) to the fullest extent permitted by Law, the provisions of this Section 1.4 1.8 and the powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) are independent and severable, are irrevocable and coupled with an interest interest, and shall be enforceable notwithstanding any rights or remedies that any Securityholder Joining Company Stockholder may have in connection with the transactions contemplated hereby; by this Agreement, and (ii) shall survive the death, incompetence, bankruptcy or liquidation of any Joining Company Stockholder and shall be binding on any successor thereto, and (iii) shall survive the delivery of an assignment by any Joining Company Stockholder of the whole or any fraction of his, her or its interest in the Escrow Fund;
(iii) no Joining Company Stockholder shall have any cause of action against the Representative for any action taken or not taken, any decision made or any instruction given or not given by the Representative under this Agreement, the Escrow Agreement, the Representative Engagement Agreement and the agreements and instruments contemplated hereby and thereby, except for causes of action for fraud or willful breach of this Agreement or the Escrow Agreement by the Representative or the Representative’s gross negligence or willful misconduct;
(iv) remedies available at Law for any breach of the provisions of this Section 1.8 are inadequate; therefore, the Buyer shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if the Buyer brings an action to enforce the provisions of this Section 1.8;
(v) the Representative shall be entitled to: (i) reasonably rely upon the Closing Payment Schedule, (ii) rely upon any signature reasonably believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Joining Company Stockholder; and
(vi) the provisions of this Section 1.4 1.8 shall be binding upon the executors, heirs, legal representatives representatives, personal representatives, successors and successors permitted assigns of the Buyer, the Representative, and each SecurityholderJoining Company Stockholder, and any references in this Agreement to a Securityholder Joining Company Stockholder shall mean and include the successors to such Securityholderthe Joining Company Stockholder’s rights hereunder, whether pursuant to testamentary disposition, the laws Laws of descent and distribution or otherwise.
(de) The Joining Company Stockholder and Buyer acknowledge and agree that the Representative can resign upon thirty (30) days’ written notice to the Advisory Group and may be removed and/or replaced at any time upon the affirmative written consent of Joining Company Stockholders holding a majority of the aggregate Pro Rata Percentage of all Joining Company Stockholders. Upon the due removal and/or replacement of the Representative, Buyer and the newly appointed Representative shall provide prompt written notice to the Escrow Agent concerning such replacement.
(f) At the Closing, an amount in cash equal to $350,000 (the “Representative Reserve Fund”) shall be withheld from the Total Merger Consideration payable to, and therefore shall not be paid to, the Company Stockholders at the Closing (each such withholding to be made on a Pro Rata Percentage with respect to each Company Stockholder), but instead shall be delivered to the Representative to be held by the Representative in a dedicated account for the payment of any Representative Losses or other expenses incurred by the Representative in performing the duties assigned to the Representative pursuant to this Agreement, the Escrow Agreement and the Representative Engagement Agreement. The Representative is not providing any investment supervision, recommendations or advice. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Reserve Fund, and has no tax reporting or income distribution obligations. The Representative will incur no liability 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. The Representative Reserve Fund shall be used by the Representative solely to pay the reasonable out-of-pocket costs or expenses actually incurred by or reasonably expected to be incurred by the Representative in connection with the acceptance, performance and administration of its services duties as the Representative pursuant to this Agreement and any related agreements except Agreement. Any remaining balance in the Representative Reserve Fund shall be released by the Representative to the extent resulting from its gross negligence Company Stockholders (or willful misconductto the Paying Agent for further distribution to the Company Stockholders) at such time as the Representative determines that the Representative Reserve Fund is no longer necessary or desirable, and each Company Stockholder shall be entitled to an amount equal to such Company Stockholder’s Pro Rata Percentage of such amount so released. The Prior to any such release of the Representative Reserve Fund, the Representative shall not deliver to Buyer an updated Closing Payment Schedule setting forth the portion of the Representative Reserve Fund payable to each Company Stockholder.
(g) Certain Company Stockholders have entered into an engagement agreement (the “Representative Engagement Agreement”) with the Representative (such Company Stockholders, including their individual representatives, collectively, the “Advisory Group”). As between the Company Stockholders and the Representative, neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Representative Group”) shall be liable for any action act done or omission omitted in connection with this Agreement, the Escrow Agreement, the Representative Engagement Agreement or the agreements ancillary hereto while acting in good faith, and any act done or omitted to be done pursuant to the advice of counselcounsel shall be conclusive evidence of such good faith. The Securityholders will Company Stockholders shall indemnify, defend and hold harmless the Representative Group from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs costs, judgments and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipmentshipment and in connection with seeking recovery from insurers) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement execution and performance of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, the Escrow Agreement, the Paying Agent Agreement, the Representative Engagement Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the bad faith, fraud, gross negligence fraud or willful misconduct of the Representative, the Representative will reimburse the Securityholders Company Stockholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence fraud or willful misconduct. If not paid directly to the Representative by the Company Stockholders, any such Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the SecurityholdersRepresentative Reserve Fund; provided, that while this section allows the Representative may to be paid from the aforementioned sources of funds, this does not relieve the Securityholders Company Stockholders 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 or otherwise incur any financial liability on behalf of the Securityholders Company Stockholders or otherwise. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities (including the Representative Reserve Fund), which, in its reasonable determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting of the recourse against non-parties otherwise applicable to, the Securityholders Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunderunder this section. The foregoing indemnities and immunities will survive the Closing, the resignation or removal of the Representative or any member of the Advisory Group or the termination of this Agreement or the Escrow Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Sources: Merger Agreement (LogMeIn, Inc.)
Representative. (a) By the adoption Each Seller, by his, her or its acceptance of the MergerPurchase Price, hereby appoints, authorizes and by virtue empowers the Representative to act as the agent of the execution Sellers for the purposes and with the powers and authority hereinafter set forth in this Section 9.17, which shall include the full power and authority:
(i) as the Representative, to enforce and protect the rights and interests of the Sellers arising out of or under or in any manner relating to this Agreement and, in connection therewith, to (A) resolve all questions, disputes, conflicts and controversies concerning (I) the determination of amounts pursuant to ARTICLE II, (II) matters relating to Taxes pursuant to Section 6.03 and (III) calculations pursuant to the Waterfall; (B) employ such agents, consultants and professionals, to delegate authority to its agents, to take such actions and to execute such documents on behalf of the Sellers in connection with ARTICLE II and the rest of this Agreement and/or acceptance as the Representative, in its reasonable discretion, deems to be in the best interest of the Sellers; (C) assert or institute any benefits thereofclaim, including action, proceeding or investigation pursuant to this Agreement; (D) investigate, defend, contest or litigate any consideration payable claim, action, proceeding or investigation initiated by Buyer, or any other Person, against all Sellers, and receive process on behalf of all Sellers in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Representative shall determine to be appropriate, give receipts, releases and discharges on behalf of all Sellers with respect to any such claim, action, proceeding or investigation pursuant to this Agreement; (E) file any proofs, debts, claims and petitions as the Representative may deem advisable or necessary; (F) prepare and file any Tax Returns; (G) settle or compromise any claims asserted in connection with this Agreement; and (H) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing claims, actions, proceedings or investigations pursuant to this Agreement, each it being understood and agreed that the Representative shall not have any obligation to take any such actions, and shall not have liability for any failure to take any such action; and
(ii) to be reimbursed from the Representative Fund for any costs, expenses or other fees that may be paid or borne by the Representative pursuant to the terms here of and to pay amounts out of the Securityholders irrevocably nominateRepresentative Fund in connection with any of the foregoing, constitute it being understood and appoint agreed that the Representative (A) shall not have any obligation to take any such actions, (B) shall not be required to expend any of its own funds, (C) shall not have any liability for any failure to take any such action and (D) shall have the right, to the extent the Representative Fund is exhausted, to request, with reasonable advance notice, that each Seller replenish the Representative Fund until the Representative Fund contains an amount equal to the initial amount used to fund the Representative Fund; provided, however, that no Seller shall be liable to replenish the Representative Fund for any amount that exceeds an amount equal to such Seller’s pro rata portion of the total amount, as determined in accordance with such Seller’s percentage of the Purchase Price, received, and in no event exceeding such Seller’s pro rata portion of the Final Purchase Price.
(b) Notwithstanding anything contained in this Agreement to the contrary, prior to the determination of the Final Purchase Price and the full payment of the Net Negative Adjustment Amount (if any) in accordance with Section 2.05, the Representative shall not be permitted to use any portion of the Representative Fund for any purpose, other than (i) to satisfy any payment obligation owed to Buyer pursuant to Section 2.05 and (ii) to pay the fees and expenses of the Representative incurred in its capacity as such or to pay amounts on behalf of the Sellers, in each case under this clause (ii) in an amount not to exceed $1,000,000 in the aggregate. Following the determination of the Final Purchase Price and the full payment of the Net Negative Adjustment Amount (if any) in accordance with Section 2.05, the Representative shall be permitted to use or disburse any remaining portion of the Representative Fund in accordance with this Section 9.17.
(c) Buyer and the Company after the Closing shall be entitled to rely exclusively upon the communications of the Representative, but only as of it relates to the Closingforegoing, as the true communications of the Sellers. Neither Buyer nor the Company (A) need be concerned with the authority of the Representative to act on behalf of all Sellers hereunder, or (B) shall be held liable or accountable in any manner for any act or omission of the Representative in such capacity.
(d) The agency established hereby may be changed from time to time upon not less than five days’ prior written notice to Buyer by the written consent of Sellers that held a majority of the Membership Interests immediately prior to the Closing. The Representative, or any successor hereafter appointed, may resign at any time by written notice to the Sellers (with a copy to Buyer). A successor Representative will be named by the written consent of the Sellers who held a majority of the Membership Interests immediately prior to the Closing. All power, authority, rights and lawful agent privileges conferred in this Agreement to Highlander Partners Candy, LLC will apply to any successor Representative.
(e) The grant of authority provided for in this Section 9.17 is coupled with an interest and attorney is being granted, in fact part, as an inducement to the Company, the Sellers and Buyer to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of each Securityholderany Seller and shall be binding on any successor thereto.
(f) Except as otherwise provided in Section 9.17(a)(ii), the Representative shall not be entitled to any fee, commission or other compensation for the performance of its service hereunder. In dealing with this Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all purposes or any of the powers conferred upon the Representative hereunder or thereunder, (A) the Representative shall not assume any, and shall incur no, responsibility whatsoever to any Seller by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, unless by the Representative’s gross negligence or willful misconduct, and (B) the Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any related agreementserror in judgment or other act or omission of the Representative pursuant to such advice shall in no event subject the Representative to liability to any Seller unless by the Representative’s gross negligence or willful misconduct. Except as set forth in the previous sentence, with full power in its, his or her name and on its, his or her behalf to act according notwithstanding anything to the terms of this Agreement and the Ancillary Agreements in the discretion of contrary contained herein, the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders its role as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made hereinRepresentative, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating have no liability whatsoever to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement Acquired Companies or any other actions required to be taken by Person (other than Buyer). Each Seller, severally, shall indemnify the Representative under up to, but not exceeding, an amount equal to such Seller’s pro rata portion of the Ancillary Agreementstotal amount, as determined in accordance with such Seller’s percentage of the Purchase Price, received, and in no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by event exceeding such Person in reliance upon the instructions or decisions Seller’s pro rata portion of the Representative; (ii) Kardigan shall be required to file Final Purchase Price, against all damages, liabilities, claims, obligations, costs and negotiate expenses, including reasonable attorneys’, accountants’ and other experts’ fees and the amount of any claims or disputes related to judgment against it, of any nature whatsoever, arising out of or in connection with any claim or in connection with any appeal thereof, relating to the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions acts or omissions of the Representative shall be conclusive hereunder, except for such damages, liabilities, claims, obligations, costs and binding upon all Securityholders expenses, including reasonable attorneys’, accountants’ and no Securityholder shall have other experts’ fees and the amount of any cause of action judgment against the Representative that arise from the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative foregoing indemnification shall not be liable for any action or omission pursuant to the advice deemed exclusive of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated right to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while which the Representative may be paid entitled apart from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurredprovisions hereof. In no the event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in any indemnification under this Agreement to the contrarySection 9.17(e), any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided each Seller shall promptly deliver to the Representative hereunderfull payment of its ratable share of such indemnification claim. The foregoing indemnities will All of the indemnities, immunities and powers granted to the Representative under this Agreement shall survive the Closing, resignation or removal of the Representative or the Closing and/or any termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Catalent, Inc.)
Representative. (a) By 13.1. Notwithstanding any statement to the adoption of the Merger, and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreementcontrary contained herein, each of the Securityholders Holder irrevocably nominate, constitute authorizes and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreementsappoints ▇. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments Lodge III or his/its successor appointed pursuant to this AgreementSECTION 13 (the "REPRESENTATIVE") 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 same effect as if such action were taken or such document or agreement were executed by such Person, in connection with any matter or thing relating to any provision of this Agreement that states that the Representative shall be binding upon act or execute and ▇. ▇▇▇▇▇ Lodge III hereby accepts his/its appointment as the Securityholders, Representative and no Securityholder shall have agrees to perform all of the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions duties of the Representative as hereunder.
13.2. The Representative cannot resign or be removed by the Holders, except upon delivery to the determination 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 Merger Consideration and the determination, dispute and facilitating the disbursement Representative that purports to be on behalf of one or more of the Milestone Payments 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 any other actions required to be taken inquiry by the Company, upon all action by the Representative under as having been taken upon the Ancillary Agreementsauthority of such Holders. Any action by the Representative taken on behalf of the Holders shall be conclusively deemed to be the action of the Holders, and no Securityholder the Company shall not have any cause of action against Kardigan liability or its Affiliates responsibility to the Holders for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions thereon.
13.4. The appointment of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are hereunder is irrevocable and coupled with an interest and any action taken by the Representative pursuant to the authority granted in this SECTION 13 shall be enforceable effective and absolutely binding on each Holder, notwithstanding any rights contrary action of or remedies that direction from a Holder; and
13.5. As among the Holders, a Representative may resign at any Securityholder may have in connection with time by giving notice to the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding Holders, and, if there does not exist any previously designated successor thereto, upon the executors, heirs, legal representatives appointment and successors qualification of each Securityholdera successor. A Representative may be discharged, and any references replaced by another person to act as successor, in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseaccordance with SECTION 13.2.
(da) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except shall not be liable to the extent resulting from its gross negligence 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 not be liable 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 writing, notice or instruction is given.
(b) The Holders, jointly and severally, shall indemnify the Representative for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold the Representatives harmless against, any loss, liability or expense incurred by the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement acceptance of, or the performance of its rights duties under this Agreement, as well as the costs and expenses of defending against any claim or liability arising under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this AgreementMerger Agreements.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) By the adoption of the Merger, Effective upon and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each vote of the Securityholders irrevocably nominate, constitute Company Stockholders approving and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of adopting this Agreement and the Ancillary Agreements Merger, and without further act of any Company Stockholder, the Representative is hereby appointed as agent and attorney-in-fact for each Company Securityholder, for and on behalf of the Company Securityholders, to: (i) receive, assert, negotiate, enter into settlements and compromises of, and comply with orders of courts and awards of arbitrators with respect to, any Claims and Liabilities by any Parent Indemnified Party against the Holdback Amount or by any such Company Indemnified Party against any Indemnifying Party or any other dispute, in each case relating to this Agreement or the transactions contemplated hereby or thereby; (ii) resolve all disputes concerning the Working Capital Adjustment; (iii) resolve all disputes concerning the Contingent Consideration; and (iv) take all actions necessary or appropriate in the discretion judgment of the Representative, and to do all things and to perform all acts, including (1) amending Representative for the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement accomplishment of the Milestone Payments and (5) executing and delivering all agreementsforegoing, certificates, receipts, instructions and other instruments contemplated by, in each case without having to seek or deemed advisable in connection with, obtain the Ancillary Agreementsconsent of any Person under any circumstance. Any and all Claims and Liabilities between or among any Company Indemnified Party, the Representative and/or any one or more Company Securityholders relating to this Agreement or the transactions contemplated hereby shall in the case of any claim or dispute asserted by or against or involving any such actions taken Company Securityholder (in its capacity as such) (other than any claim against or dispute with the Representative), be asserted or otherwise addressed solely by the Representative on behalf of the Securityholders as provided hereunder such Company Securityholder (and not by such Company Securityholder acting on his, her or its own behalf). No bond shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration required of the mutual covenants and agreements made herein, Representative. Notices or communications to or from the Representative shall be irrevocable and shall not be terminated by any act constitute notice to or from each of any one or more the Company Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by Excepting the Representative’s gross negligence, bad faith or willful misconduct, the Representative shall incur no liability to the Company Securityholders with respect to any act or omission of the Representative, including or any agreement between action taken or suffered in reliance upon any notice, direction, instruction, consent, statement or other document believed by the Representative to be genuine and ▇▇▇▇▇▇▇▇ relating to have been signed by the determination of the Merger Consideration proper person; and the determination, dispute and facilitating Representative shall have no responsibility to determine the disbursement authenticity of the Milestone Payments pursuant to any such document or signature. In all questions arising under this Agreement, shall be binding upon the SecurityholdersRepresentative may rely on the advice of outside counsel, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counselCompany Securityholders for anything done, omitted or suffered in good faith by the Representative based on such advice. The 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 Securityholders will indemnifyshall, defend severally and not jointly, on a Pro Rata Portion basis, indemnify the Representative and hold harmless the Representative from and harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of the Representative and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the acceptance or administration of the Representative’s enforcement duties hereunder, including without limitation the legal costs and expenses of its rights under this Agreement defending the Representative against any claim or any other agreement entered into liability in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct performance of the Representative’s duties.
(c) Notwithstanding anything herein to the contrary and except for the Expenses Fund, the Representative will reimburse the Securityholders the amount is not authorized to, and shall not, accept on behalf of any Company Securityholder any Merger Consideration to which such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders Company Securityholder is entitled under this Agreement at 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 Company Securityholder unless the Representative is expressly authorized to do so in writing signed by the Company Securityholder. In all matters relating to this Article 8, the Representative shall be the only party entitled to assert the rights of the Company Securityholders and the Representative shall perform all of the obligations of the Company Securityholders hereunder. A decision, act, consent or instruction of the Representative shall constitute a decision of all the Company Securityholders for whom a portion of the Holdback Amount or the Contingent Consideration is otherwise payable and shall be final, binding and conclusive upon each of the Company Securityholders. The Parent, Merger Sub and Surviving Corporation may rely upon any such time decision, act, consent or instruction of the Representative as such amounts would otherwise be distributable being the decision, act, consent or instruction of each Company Securityholder for purposes of this Article 8. The Representative shall use commercially reasonable efforts, based on contact information available to the Securityholders; providedRepresentative, that while to keep the Company Securityholders reasonably informed with respect to actions of the Representative may be paid from pursuant to the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will authority granted the Representative be required to advance its own funds on behalf of the Securityholders or otherwiseunder this Agreement. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided Each Company Securityholder shall promptly provide written notice to the Representative hereunderof any change of address of such Company Securityholder. The foregoing indemnities will survive Representative shall deposit the ClosingExpenses Fund in a separate, resignation or removal interest-bearing account, and shall not co-mingle the Expenses Fund with the other assets of the Representative. The Representative shall maintain reasonable records of disbursements from the Expenses Fund, which shall be available for inspection by any Company Securityholder during normal business hours upon reasonable prior notice to the Representative.
(d) The Representative shall have reasonable access to information about the Surviving Corporation and the reasonable assistance of the Surviving Corporation’s officers and employees for purposes of performing its duties and exercising its rights hereunder, provided that the Representative shall treat confidentially and not disclose any nonpublic information from or about the termination Company to anyone (except on a need to know basis to individuals who agree to treat such information confidentially). In addition to the Expenses Fund, the Representative shall have the right to recover from each Company Securityholder such Company Securityholder’s Pro Rata Portion of this Agreementthe Representative’s reasonable out-of-pocket expenses (including, without limitation, a reasonable hourly rate for time spent) incurred in serving in that capacity. Such expenses shall be satisfied from the Holdback Amount. Prior to any payment to the Representative for such fees and expenses from the Holdback Amount, the Representative shall deliver to Parent a written statement of such fees and expenses along with written documentation supporting such fees and expenses.
(e) The Representative may resign at At any time upon 30 days’ written noticeprior to distribution of the Holdback Amount, and may be removed for any reason or no reason by approval from and by written consent of a majority in majority-in-interest of the Stockholders; providedCompany Securityholders’ Pro Rata Portions may, howeverby written consent, in no event shall Representative be removed without remove and replace the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice The newly appointed Representative shall deliver notice of his or her appointment and copies of such vote or a copy of consents to Parent and the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such Escrow Agent as soon as practicable. Such appointment to will be effective upon the later of the date indicated in such the consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ Parent. The Representative shall be entitled deliver the Expenses Fund remaining to rely on the decisions and actions of the prior Representative as described hereinnewly appointed Representative.
(f) Pursuant In the event that the Representative dies, resigns as such or becomes unable or unwilling to Section 2.2(c)continue in his or her capacity as Representative, at the Closing, Kardigan shall deposit, on behalf a majority-in-interest of the Company Securityholders’ Pro Rata Portions shall, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”)written consent, which will be used for any expenses incurred by the appoint a new Representative. The Securityholders newly appointed Representative shall deliver notice of his or her appointment to Parent as soon as practicable. Such appointment will not receive any interest be effective upon the later of the date indicated in the consent or earnings on the Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any date such interest or earningsnotice is received by Parent. The Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in shall deliver the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any Expenses Fund remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closingnewly appointed Representative.
Appears in 1 contract
Representative. (a) By the adoption of the Merger, and by virtue of the execution of Company Required Stockholder Consent, this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreementand the transactions contemplated hereby by the Company Stockholders, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder Company Stockholders shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and deemed to have agreed to appoint H▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ relating to (the determination “Representative”) as its agent and attorney-in-fact, as the Representative for and on behalf of the Merger Consideration Company Stockholders to give and receive notices and communications, to authorize payment to any Indemnified Party from the determinationEscrow Fund in satisfaction of claims by such Indemnified Party pursuant to Section 7.2(a), to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to 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 Company Stockholder against any Indemnified Party or any dispute between any Indemnified Party and facilitating the disbursement of the Milestone Payments pursuant any such Company Stockholder, in each case relating to this Agreement, shall be binding upon the SecurityholdersEscrow Agreement or the transactions contemplated hereby or thereby, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: take all other actions that are either (i) Kardigan necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement. 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 Purchaser; provided, however, that the Representative may not be removed unless holders of at least two-thirds of the interest of the Escrow Fund agrees in writing to such removal and its Affiliates to the identity of the substituted agent. Notwithstanding the foregoing, a vacancy in the position of Representative may be filled by the holders of a majority in interest of the Escrow Fund. Notices or communications to or from the Representative shall constitute notice to or from the Company Stockholders. A decision, act, consent or instruction of the Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and Section 8.4 hereof, shall constitute a decision of the Company Stockholders and shall be able to final, binding and conclusive upon the Company Stockholders; and each of the Escrow Agent and Purchaser may rely conclusively on the instructions and decisions upon any such decision, act, consent or instruction of the Representative as to being the determination decision, act, consent or instruction of the Merger Consideration and the determination, dispute and facilitating the disbursement Company Stockholders. Each of the Milestone Payments pursuant Escrow Agent and Purchaser is hereby relieved from any liability to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates person for any action taken acts done by them in accordance with such Person in reliance upon the instructions decision, act, consent or decisions instruction of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(db) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action act done or omission pursuant to omitted hereunder as Representative while acting in good faith and in the advice exercise of counselreasonable judgment. The Securityholders will indemnify, defend Company Stockholders shall indemnify the Representative and hold harmless the Representative from and harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Representative and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the acceptance or administration of the Representative’s enforcement duties hereunder, including the reasonable fees and expenses of its rights 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”). Following the Expiration Date and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative shall have the right to recover Representative Expenses from the Escrow Fund prior to any other agreement entered into distribution to the Company Stockholders, and prior to any such distribution, shall deliver to Purchaser and the Escrow Agent a certificate setting forth the Representative Expenses actually incurred; provided, that, the Escrow Agent shall release up to One Hundred Thousand Dollars ($100,000) to the Representative from the Escrow Fund at any time, upon receipt of a certificate setting forth such Representative Expenses, to cover any Representative Expenses incurred by the Representative in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion performance of the Representative’s responsibilities, the Representative will deliver duties with respect to any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders Third Party Claim in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing7.6.
Appears in 1 contract
Sources: Merger Agreement (Quantum Corp /De/)
Representative. (a) By At the adoption 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 Mergerother 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 by virtue demand arbitration and comply with Orders with respect to, such claims; (9) take all actions necessary or appropriate in the judgment of the execution Representative for the accomplishment of this Agreement and/or acceptance the foregoing, in each case without having to seek or obtain the consent of any benefits thereofPerson under any circumstance, including and (10) subject to Section 6.3, execute for and on behalf of each Indemnifying Party any consideration payable pursuant 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 Securityholders irrevocably nominateIndemnifying Parties.
(c) The agency of the Representative may be changed, constitute and appoint 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, as representing a majority of the ClosingAggregate Escrow Funding Percentage of all Indemnifying Parties, as other than the true Representative, will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and lawful agent the Representative will serve until such successor is duly appointed and attorney qualified to act hereunder. In the event of a vacancy in fact 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 Securityholderof the Indemnifying Parties at their addresses last known to Parent, for all purposes 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, the performance of its duties as the Representative (the “Representative Expenses”) will be borne and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to paid by the terms of this Agreement and the Ancillary Agreements in the discretion 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 do all things advances against Representative Expenses from the Representative Fund, in the judgment and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement discretion of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other eventRepresentative.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(de) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable to any Indemnifying Party for any action act done or omission pursuant to omitted hereunder as the Representative while acting in good faith and any act done or omitted in accordance with the advice of counselcounsel or other expert will be conclusive evidence of such good faith. The Securityholders Indemnifying Parties will indemnify, defend jointly and severally indemnify the Representative and hold harmless the Representative from and harmless against any Losses incurred without bad faith on the part of the Representative and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement acceptance or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct administration of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative ’s duties hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant The Representative will have reasonable access to Section 2.2(c), at information about the Closing, Kardigan shall deposit, on behalf Surviving Company and the reasonable assistance of the SecurityholdersCompany’s former officers and employees for purposes of performing the Representative’s duties and exercising the Representative’s rights hereunder, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which except that no Indemnified Person will be used for required to provide any expenses incurred by information that is subject to a legal privilege or a protective Order or the Representative. The Securityholders will not receive disclosure of which would violate any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest or earningsLaws. The Representative will hold these funds separate treat confidentially and not use or disclose the terms of this Agreement, any Related Agreement or any nonpublic information from its corporate funds and will not voluntarily make these funds available or about Parent, Surviving Company or any Indemnified Person to its creditors in anyone, except that the event of bankruptcy. As soon as practicable following Representative may disclose the completion of terms or information to the Indemnifying Parties or the Representative’s responsibilitiesemployees, 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 deliver any remaining balance 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 Expense Fund to Kardigan for further distribution Representative pursuant to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time terms of Closingthis Agreement.
Appears in 1 contract
Representative. (a) By the adoption Each of the Merger, Principals and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC IMS Holdco hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇appoints ▇▇▇▇▇▇ relating as his, her or its exclusive agent and attorney-in-fact (the "Representative") (i) to give and receive notices and communications with respect to the determination provisions of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon (ii) to amend the Securityholdersterms of this Agreement, (iii) to agree to, negotiate, enter into settlements or compromises of matters arising under the provisions of this Agreement, and no Securityholder shall have (iv) to take any and all actions necessary or appropriate in the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions judgment of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) Principals and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the IMS Holdco under such provisions of this Section 1.4 are independent Agreement. Such agency and severable, are that of any successor representative is irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholdersinterest; provided, however, in the Representative shall have no authority to act on behalf of any Principal or IMS Holdco with respect to an indemnity claim under Section 7.2.2. In the event the Representative refuses to, or is no longer capable of, serving as the Representative hereunder, the other Principals shall Representative be removed without the Stockholders having first appointed promptly appoint a new successor Representative who shall assume such duties immediately upon thereafter be the removal of Representative. Notice of such vote or a copy of successor Representative hereunder and the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that serve until such notice successor is received, ▇▇▇▇▇▇▇▇ shall be entitled duly appointed and qualified to rely on the decisions act hereunder. The Principals and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by IMS Holdco hereby agree that the Representative (shall not have any liability to the “Expense Fund”)Company or any of its subsidiaries, which will be used if any, for any expenses incurred action he takes or omits to take hereunder (or under any agreement or instrument referred to herein) in his capacity as Representative, unless such action or omission constitutes bad faith or willful misconduct by the Representative. The Securityholders will not receive any interest Notices or earnings on the Expense Fund and irrevocably transfer and assign communications to or from the Representative any ownership right that they may otherwise have had shall constitute notice to or from the Principals and/or IMS Holdco in any such interest respect of matters relating to this Agreement. Any decision, act, consent or earnings. The Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion instruction of the Representative’s responsibilitiesRepresentative shall constitute a decision of all of the Principals and IMS Holdco, and shall be final, binding and conclusive upon each Principal and IMS Holdco, and the Purchaser may rely upon any decision, act, consent or instruction of the Representative will deliver any remaining balance as being the decision, act, consent or instruction of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received IMS Holdco and voluntarily set aside by the Securityholders at the time of Closingeach and every Principal.
Appears in 1 contract
Sources: Membership Unit Purchase Agreement (MDC Partners Inc)
Representative. (a) By At the adoption of the MergerEffective Time, Shareholder Representative Services LLC shall be constituted and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, appointed as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. Each Indemnifying 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 their agent and true and lawful attorney-in-fact with the powers and authority as set forth in this Agreement. The Representative shall be the exclusive agent for and on behalf of the Indemnifying Securityholders to (1) enter into the Escrow Agreement, (2) 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; (3) authorize deliveries to Parent of cash or other property from the Escrow Fund and legally bind each Indemnifying 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); (4) object to claims in accordance with Section 1.9 and Section 7.6; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) 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 (7) subject to Section 6.4, execute for and on behalf of each Indemnifying 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 and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants interest and agreements made herein, shall will be irrevocable and shall will not be terminated by any act of any one or more Securityholders, Indemnifying Securityholder or by operation of applicable lawLaw, whether by the death or incapacity of any Indemnifying 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 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) All decisions The Person serving as the Representative may resign at any time and actions may be replaced from time to time, by the Representative, including any agreement between holders of a majority in interest of the 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 and ▇▇▇▇▇▇▇▇ relating may be changed only when the Person serving as the Representative is replaced pursuant to the determination preceding sentence. A vacancy in the position of Representative may be filled by the holders of a majority in interest of the Merger Consideration and Company Capital Stock outstanding immediately prior to the determinationEffective Time. If the Representative refuses or is no longer capable of serving as the Representative hereunder, dispute and facilitating then the disbursement Indemnifying Securityholders will promptly, within ten (10) days after such resignation or removal, 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 Milestone Payments pursuant Indemnifying Securityholders at their addresses last known to this AgreementParent, shall which will be binding upon the Securityholders, and no Securityholder shall have address set forth in the right Spreadsheet unless the Representative provides notice to object, dissent, protest or otherwise contest Parent of a different address in the samemanner described in Section 8.4.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable to any Indemnifying Securityholder for any action act done or omission pursuant to omitted hereunder as the Representative while acting in good faith and any act done or omitted in accordance with the advice of counselcounsel or other expert shall be conclusive evidence of such good faith. The Indemnifying Securityholders will indemnify, shall jointly and severally indemnify and defend the Representative and hold harmless the Representative from and harmless against any and all lossesloss, liabilitiesliability , damagesdamage, claimsclaim, penaltiespenalty, finesfine, forfeitures, actionsaction, feesfee, costs and expenses (cost or expense including the fees and expenses of counsel and experts and their staffs and all expense expenses of document location, location duplication and shipment) (collectively, “Representative LossesExpenses”) arising out of or in connection with the acceptance or administration of the Representative’s enforcement of its rights duties hereunder. and under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Escrow Agreement, in each case as such Representative Loss Expense is suffered or incurred; provided, that in the event that any such Representative Loss Expense is finally adjudicated to have been directly caused by the gross negligence, fraud or bad faith, fraud, gross negligence or willful misconduct faith of the Representative, the Representative will reimburse the Indemnifying Securityholders the amount of such indemnified Representative Loss Expense to the extent attributable to such fraudgross negligence, fraud or bad faith. If not paid directly to the Representative by the Indemnifying Securityholders, gross negligence or willful misconduct. any such Representative Losses Expenses may be recovered by the Representative from (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 other funds that become payable distribution to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the SecurityholdersStockholders; provided, that while this section allows the Representative may to be paid from the aforementioned sources of fundsRepresentative Expense Fund and the Escrow Fund, this does not relieve the Indemnifying Securityholders from their obligation to promptly pay such Representative Losses 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. Notwithstanding anything in this Agreement to The Indemnifying Securityholders acknowledge and agree that the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(ed) The Representative may resign at any time upon 30 days’ written notice, shall have reasonable access to information about the Surviving Corporation and may be removed for any reason or no reason by approval from and by written consent of a majority in interest the reasonable assistance of the StockholdersCompany’s former officers and employees for purposes of performing its duties and exercising its rights hereunder; provided that the Representative shall treat confidentially and not use or disclose the terms of this Agreement or any nonpublic information from or about Parent, Surviving Corporation, or any Indemnified Person to anyone (except as required by Law or to the Indemnifying Securityholders or the Representative’s employees, attorneys, accountants, financial advisors or authorized representatives on a need to know basis, in each case who agree to treat such information confidentially), provided, however, that neither Parent nor the Surviving Corporation shall be obligated to provide such access or information if it determines, in no event shall Representative be removed without its reasonable judgment, that doing so would violate applicable Law or any Contract to which Parent, the Stockholders having first appointed Surviving Corporation or any of their Affiliates is a new Representative who shall assume such duties immediately upon Party or obligation of confidentiality owed by Parent, the removal Surviving Corporation or any of Representativetheir 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. Notice of such vote or a copy Notwithstanding anything in this Agreement to the contrary, following the Closing and the public announcement (if any) of the written consent appointing such new Merger, the Representative shall be sent permitted to ▇▇▇▇▇▇▇▇, publicly announce that it has been engaged to serve as the Representative in connection with the Merger as long as such appointment to be effective upon the later announcement does not disclose any of the date indicated in such consent terms of the Merger or the date such notice is received other transactions contemplated herein or hereby.
(e) By its signature to this Agreement, the initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended by ▇▇▇▇▇▇▇▇; providedthis Agreement, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled and agrees to rely on act as the decisions Representative and actions to discharge the duties and responsibilities of the prior Representative as described hereinpursuant to the terms of this Agreement.
(f) Pursuant to Section 2.2(c), at Upon the Closing, Kardigan shall depositthe Company will wire, on behalf of the Securityholdersor will cause to be wired, the Expense Fund Amount to an account designated by the Representative 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 incurred by of the RepresentativeRepresentative 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. As Contemporaneous with or as soon as practicable following the completion of the Representative’s responsibilitiesduties, the Representative will deliver any remaining the balance of the Representative Expense Fund to Kardigan the Payment Agent (or the Surviving Corporation’s payroll agent, as applicable) for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”)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) By the adoption of the Merger, and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in attorney-in-fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements Transaction Documents in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary AgreementsTransaction Documents, (2) waiving rights, (3) discharging liabilities Liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and the Royalty Payments, (5) defending and settling of any claims under Article VII, (6) facilitating the disbursement of the Holdback Fund (or any portion thereof) in accordance with this Agreement and (7) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary AgreementsTransaction Documents. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable lawLaw, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ Buyer relating to the determination of the Merger Consideration and Consideration, the determination, dispute and facilitating the disbursement of the Milestone Payments and Royalty Payments or the defense or settlement of any claims for which the Securityholders may be required to indemnify the Buyer Indemnified Parties pursuant to Article VII hereof as well as facilitating the disbursement of all or any portion of the Holdback Fund pursuant to this AgreementAgreement in respect thereof, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) . Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) By For purposes of Claims under Section 9.02 that are payable under the adoption of the Merger, and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Escrow Agreement, each the Genisys Shareholders hereby consent to the appointment of the Securityholders irrevocably nominate, constitute and appoint the Representative, as representative of the ClosingGenisys Shareholders, and as the true attorney-in-fact for and lawful agent and attorney in fact on behalf of each SecurityholderGenisys Shareholder, for all purposes in connection with this Agreementand, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according subject to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection withexpress limitation set forth below, the Ancillary Agreements. Any and all such actions taken taking by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney any and all authority hereby conferred is coupled with an interest, is granted in consideration of actions and the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act making of any one decisions required or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required permitted to be taken by the Representative for Claims under Section 9.02 that are payable under the Ancillary AgreementsEscrow Agreement, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon including, without limitation, the instructions or decisions exercise of the Representative; (ii) Kardigan shall be required power to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent authorize delivery to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later -▇▇▇▇▇▇▇▇ of the date indicated Escrow Shares, or any portion thereof, in such consent satisfaction of any Claims, (ii) agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to any Claims, (iii) resolve any Claims, and (iv) take all actions necessary in the judgment of the Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement and the Escrow Agreement. The Representative will have unlimited authority and power to act on behalf of each Genisys Shareholder with respect to Claims under Section 9.02 that are payable under the Escrow Agreement and the disposition, settlement or other handling of all Claims, rights or obligations arising under Section 9.02 that are payable under the date such notice is received Escrow Agreement so long as all Genisys Shareholders are treated in the same manner. The Genisys Shareholders will be bound by all actions taken by the Representative in connection with Claims under Section 9.02 that are payable under the Escrow Agreement, and ▇▇▇▇▇▇▇▇; provided, that until such notice is received, -▇▇▇▇▇▇▇▇ shall will be entitled to rely on the decisions and actions any action or decision of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders In performing the functions specified in Section 9.02 and the Escrow Agreement, the Representative will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign be liable to the Genisys Shareholders in the absence of gross negligence or willful misconduct. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ hereby accepts the position of Representative any ownership subject to the right that they to resign as set forth below. The Representative may otherwise have had resign from such position, effective upon a new representative being appointed in any such interest or earningswriting by Genisys Shareholders who beneficially own a majority of the Escrow Shares. The Representative will hold these funds separate not be entitled to receive any compensation from its corporate funds ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ or the Genisys Shareholders in connection with this Agreement or the Escrow Agreement. Any out-of-pocket costs and expenses reasonably incurred by the Representative in connection with actions taken pursuant to the terms of Section 9.02 and the Escrow Agreement will be paid (but not voluntarily make these funds available out of the Escrow Shares) by the Genisys Shareholders to its creditors the Representative in proportion to their percentage interests in the event of bankruptcy. As soon Escrow Shares as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution set forth on ATTACHMENT A to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of ClosingEscrow Agreement.
Appears in 1 contract
Representative. (a) By the adoption of the MergerMr. ▇▇▇▇ ▇▇▇ll, and by virtue of the execution of this Agreement and/or acceptance Merger and the resolutions to be adopted by the Shareholders, be irrevocably appointed attorney-in-fact and authorized and empowered to act, for and on behalf of any benefits thereof, including any consideration payable pursuant to this Agreement, each or all of the Securityholders irrevocably nominate, constitute and appoint Shareholders (with full power of substitution in the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes 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 any related agreementssuch other matters as are reasonably necessary for the consummation of the Transactions including, with full power in itswithout limitation, his or her name and on its, his or her behalf to act according 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 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 terms of this Agreement and Merger, being referred to herein as the Ancillary Agreements in the discretion of the "Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements"). Any and all such actions taken by the The Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by liable, in his capacity as representative of such Shareholders, to any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration Shareholders and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement their respective affiliates or any other actions required person with respect to any action taken or omitted to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include or the successors to Escrow Agreement in his capacity as representative of such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any Shareholders unless such action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative results from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising or arises out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or negligence, willful misconduct or bad faith on the part of the Representative, . Jabil and the Representative will reimburse the Securityholders the amount Surviving Corporation and each of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ respective affiliates shall be entitled to rely on such appointment and treat such Representative as the decisions and actions duly appointed attorney-in-fact of each Shareholder. Each Shareholder who votes in favor of the prior Representative as described herein.
(f) Pursuant Merger pursuant to Section 2.2(c)the terms hereof, at by such vote, without any further action, and each Shareholder who receives any Jabil Shares in connection with the ClosingMerger, Kardigan shall depositby acceptance 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 Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of ClosingShareholders.
Appears in 1 contract
Sources: Merger Agreement (Jabil Circuit Inc)
Representative. (a) By the adoption of the Merger, Effective upon and by virtue of the execution of this Agreement and/or acceptance Stockholder Approval, and without any further act of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders Stockholders or Optionholders, the Representative is hereby irrevocably nominate, constitute and appoint the Representative, as of the Closing, appointed as the true and lawful agent representative, agent, proxy, and attorney in fact of each Securityholder, (coupled with an interest) for all the Stockholders and Optionholders for all purposes under this Agreement including the full power and authority on the Stockholders’ and Optionholders’ behalf: (i) to consummate the transactions contemplated under this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (ii) to negotiate claims and disputes arising under, or relating to, this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (including, for the avoidance of doubt, the adjustment of Allocable Amount contemplated by Section 3.03 and claims for indemnification under Article XI), (iii) to receive and disburse to, or caused to be received or disbursed to, any Stockholder or Optionholder any funds received on behalf of such Stockholder or Optionholder under this Agreement (including, for the avoidance of doubt, any portion of the Merger Consideration) or otherwise, (iv) to withhold any amounts received on behalf of any Stockholder or Optionholder pursuant to this Agreement (including, for the avoidance of doubt, any portion of the Merger Consideration) or to satisfy (on behalf of the Stockholders and Optionholders) any and all obligations or liabilities of any Stockholder, Optionholder or the Representative in the performance of any of their commitments hereunder (including, for the avoidance of doubt, the satisfaction of payment obligations (on behalf of the Stockholders and Optionholders) in connection with the adjustment of Allocable Amount contemplated by Section 3.03 or the indemnification of the Purchaser Indemnified Parties under Article XI), (v) to execute and deliver any amendment or waiver to this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of any Stockholder or Optionholder), (vi) to receive and disburse to, or cause to be received or disbursed to, any individual pursuant to any incentive compensation agreement providing for a transaction bonus, in effect as of the Closing and (vii) to take all other actions to be taken by or on behalf of any Stockholder or Optionholder in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representativeother agreements, instruments, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments documents contemplated by, hereby or deemed advisable executed in connection with, the Ancillary Agreementsherewith. Any Such agency and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is proxy are coupled with an interest, is granted in consideration are therefore irrevocable without the consent of the mutual covenants and agreements made herein, shall be irrevocable Representative and shall not be terminated by any act survive the death, incapacity, bankruptcy, dissolution or liquidation of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) each Stockholder and Optionholder. All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholderseach Stockholder and Optionholder, and no Securityholder Stockholder or Optionholder 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.
(b) Effective upon and by virtue of the Stockholder Approval, and without any further act of any of the Stockholders or Optionholders, the Representative and its Non-Recourse Parties shall be indemnified, held harmless and reimbursed by each Stockholder and Optionholder severally (based on each Stockholder’s and Optionholder’s Indemnity Allocation Percentage), and not jointly, against all costs, expenses (including reasonable attorneys’ fees), judgments, fines and 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 (including, for the avoidance of doubt, the satisfaction of payment obligations (on behalf of the Stockholders and Optionholders) in connection with the adjustment of Allocable Amount contemplated by Section 3.03 or the indemnification of the Purchaser Indemnified Parties under Article XI). 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 Stockholders and Optionholders (and, not for the avoidance, on behalf of the Representative in any other capacity, as a Stockholder or otherwise).
(c) Each Securityholder agrees that: (i) Kardigan and Neither the Representative nor any of its Affiliates Non-Recourse Parties shall be able incur any liability to rely conclusively on any Stockholder or Optionholder by virtue of the instructions and decisions failure or refusal of the Representative as or any of its Non-Recourse Parties for any reason to consummate the transactions contemplated hereby or relating to the determination performance of their duties hereunder, except for actions or omissions constituting Fraud. 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 Stockholder or Optionholder, regardless of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement legal theory under which such liability or any other actions required obligation may be sought to be taken by 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 under the Ancillary Agreements, and no Securityholder shall have pays or causes to be paid any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative amounts (on behalf of the SecurityholdersStockholders and Optionholders) and not in connection with each Securityholder; (iii) all actions, decisions and instructions any obligation or liability of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights a Stockholder or remedies that any Securityholder may have Optionholder in connection with the transactions contemplated hereby; hereby (including, for the avoidance of doubt, the adjustment of Allocable Amount contemplated by Section 3.03 or the indemnification of the Purchaser Indemnified Parties under Article XI), 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 (v) and, if not so reimbursed from the provisions of this Section 1.4 Representative Holdback Amount, the Representative shall be binding upon the executorsindemnified, heirs, legal representatives held harmless and successors of reimbursed by each SecurityholderStockholder and Optionholder severally (based on each Stockholder’s and Optionholder’s Indemnity Allocation Percentage), and not jointly, for such amount(s)). The Representative may, in its sole and absolute discretion, distribute, or caused to be distributed, any references or all of the funds received or held by it on behalf of the Stockholders and Optionholders (including, for the avoidance of doubt, any portion of the Merger Consideration) to one or more Stockholders or Optionholders at any time after the date hereof, which such distribution(s) of funds may be different (i.e., with respect to amount, timing, conditionality or otherwise) for each Stockholder and Optionholder. Upon full reimbursement of all expenses, costs, obligations or liabilities incurred by the Representative in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights performance of its duties hereunder, whether pursuant the Representative shall distribute, or caused to testamentary dispositionbe distributed, all remaining funds held by it on behalf of the Stockholders and Optionholders to the Stockholders and Optionholders; provided, that to ensure compliance with Treasury Regulation §1.409A-3(i)(5)(iv), the laws 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 Stockholders may receive payments after the date which is five (5) years after the Closing Date, including, for the avoidance of descent and distribution or otherwisedoubt, amounts that, if paid prior to the date which is five (5) years after the Closing Date, would have been paid to the Optionholders).
(de) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except Notwithstanding anything to the extent resulting from contrary set forth herein, the Representative and its gross negligence or willful misconduct. The Representative Affiliates shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence any Stockholder or willful misconduct. Representative Losses may be recovered Optionholder for any action taken or not taken by the Representative from (i) or for any act or omission taken or not taken in reliance upon the funds in actions taken or not taken or decisions, communications or writings made, given or executed by the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative Purchaser or the termination of this AgreementMerger Sub or the Surviving Corporation.
(ef) The Representative Except as may resign at any time upon 30 days’ written noticehave been expressly and specifically agreed to in writing by a Stockholder or Optionholder, on the one hand, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely & ▇▇▇▇▇ LLP (“K&E LLP”), on the decisions other hand, and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by except for the Representative (i) K&E LLP has not and is not representing, and shall not be deemed to have represented any Stockholder or Optionholder in connection with the “Expense Fund”transactions contemplated hereby, and (ii) K&E LLP has not and is not providing any advice or counsel (including legal advice or counsel), which will and shall not be used for deemed to have provided counsel or advice, to any expenses incurred by Stockholder or Optionholder in connection with the Representativetransactions contemplated hereby. The Securityholders will not receive Each Stockholder and Optionholder agrees that K&E LLP may represent the Representative in any interest or earnings on the Expense Fund and irrevocably transfer and assign matter related to the transaction completed hereby including matters which maybe adverse to such Stockholders or Optionholders and, in furtherance thereof, each Stockholder and Optionholder consents to, and waives, without limitation, restriction or condition of any kind, any actual or potential conflict or other actual or potential objection with respect to K&E LLP’s representation of the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution matter related to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closingtransaction completed hereby.
Appears in 1 contract
Sources: Merger Agreement (Sparton Corp)
Representative. Each Seller hereby (aand each other Seller Party pursuant to the Required Documentation shall thereby) By appoints the adoption Representative for and on behalf of the Merger, Seller Parties to give and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute receive notices and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes communications in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in transactions contemplated hereby, to authorize and agree to adjustments to the discretion Buyer Shares, the Cash Consideration, the Option Consideration, the Warrant Shares, the Earnout Shares and the Earnout Funds under Article 1 and other applicable provisions of this Agreement, to authorize distribution of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection withEscrow Shares, the Ancillary Agreements. Any Escrow Funds, the Adjustment Shares and the Adjustment Funds, to take all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services Seller Parties pursuant to this Agreement and any related agreements except Ancillary Agreement to which any Seller Party is a party, and to take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing. More specifically, the Representative shall have the authority to make all decisions and determinations and to take all actions (including giving Consents or agreeing to any amendments to this Agreement or any Ancillary Agreement to which it is a party or to the extent resulting from its gross negligence termination hereof or willful misconductthereof) required or permitted hereunder on behalf of each such Seller (or such other Seller Party), and any such action, decision or determination so made or taken shall be deemed the action, decision or determination of each such Seller (or such other Seller Party), and any notice, communication, document, certificate or information required (other than any notice required by Law or under the Company’s Organizational Documents) to be given to any Seller Party hereunder or pursuant to any Ancillary Agreement shall be deemed so given if given to the Representative. The Representative shall not be liable for any action or omission pursuant authorized to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and take all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds actions on behalf of the Securityholders Seller Parties in connection with any claims made under Articles 6 or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination 7 of this Agreement.
(e) , to defend or settle such claims, and to authorize payments in respect of such claims on behalf of the Seller Parties. The Representative may resign at any time upon 30 days’ written 20 days prior notice, and may be removed for any reason or no reason by approval from and by written consent . In the event the Representative has given notice of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent its intent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholdersresign, the Expense Fund Amount to an account designated by Seller Parties shall promptly (and no later than the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion effective date of the Representative’s responsibilitiesresignation) appoint a successor Representative, in accordance with the following sentence. The Seller Parties may remove or replace the Representative by a vote of holders that own a majority of the Company’s capital stock immediately prior to Closing upon not less than ten (10) Business Days’ prior written notice to Buyer. No bond will be required of the Representative. Notices or communications to or from the Representative will deliver any remaining balance constitute notice to or from each of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of ClosingSeller Parties.
Appears in 1 contract
Representative. (a) By KMCP (the adoption “Representative”) is hereby constituted to act as agent, proxy, attorney-in-fact and representative for each Securityholder with full power of the Mergersubstitution, to act solely and exclusively on behalf of, and by virtue in the name of, such Securityholder with the full power, without the consent of such Securityholder, to exercise as the execution Representative in its sole discretion deems appropriate, the powers that such Securityholder could exercise under the provisions of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant or the Escrow Agreement and to this Agreement, each take all actions necessary or appropriate in the judgment of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes Representative in connection with this Agreement and the Escrow Agreement, which shall include the power and authority to amend, modify, waive or provide consent with respect to, any provision of this Agreement or the Escrow Agreement and to execute, deliver and accept such waivers and consents and any related agreementsand all notices, documents, certificates or other papers to be delivered in connection with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in Escrow Agreement and the discretion consummation of the transactions contemplated hereby and thereby as the Representative, and to do all things and to perform all actsin its sole discretion, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, may deem necessary or deemed advisable desirable. In any Third Party Defense in connection withwhich more than one Securityholder is an Indemnitor, the Ancillary Agreements. Any and all such actions taken by the Representative shall act on behalf of all such Securityholders. The Buyer and the Buyer Indemnitees, if applicable, will be entitled to rely exclusively upon any notices and other acts of the Representative as being legally binding acts of each Securityholder individually and the Securityholders as provided hereunder shall be binding on all Securityholders, collectively. The appointment and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney granted by each Securityholder to the Representative shall be deemed coupled with an interest and all authority conferred hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or incapacity of any such Securityholder or the occurrence of any other eventevent or events.
(b) All decisions and actions by The Representative will not be liable to the Representative, including Securityholders for any agreement between act done or omitted hereunder as the Representative while acting in good faith and ▇▇▇▇▇▇▇▇ relating to in the determination exercise of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholderreasonable judgment, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution act done or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission omitted pursuant to the advice of counselcounsel will be conclusive evidence of such good faith. The Securityholders will indemnify, defend jointly and severally indemnify the Representative and hold it harmless against any Losses incurred without gross negligence or bad faith on the part of the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement acceptance or administration of its rights duties under this Agreement and the Escrow Agreement.
(c) The Securityholders will reimburse the Representative for their Post-Closing Pro Rata Share of any out-of-pocket, independent, third-party fees and expenses (including fees and expenses of counsel, accountants and other advisors) incurred by the Representative that arise out of or any other agreement entered into are in connection with the transactions contemplated acceptance or administration of the Representative’s duties under this Agreement and the Escrow Agreement and that are not reimbursed from the Representative’s Reserve.
(d) If the Representative shall die, become disabled or resign, those Sellers that in the aggregate are entitled to at least a majority, which majority shall include each Seller that held Preferred Stock immediately prior to the Interim Effective Time, of the Aggregate Consideration Amount (less any amounts payable pursuant to Section 2.4 hereof) shall have the right to appoint a successor Representative; provided, however, that (i) such successor Representative is approved by the Buyer (which approval shall not be unreasonably withheld); provided that if the Buyer does not provide its approval within 30 days after receipt of notice of the proposed successor Representative, the Buyer shall be deemed to have consented to such appointment, (ii) in the case of a resignation by the Representative, the Representative’s resignation shall not be effective until the successor Representative’s appointment is effective in accordance with this Section 5.12(d), and (iii) the appointment of such successor Representative shall not be effective until the delivery to the Buyer and the Escrow Agent of executed counterpart of a writing signed by the successor Representative that he, she or it accepts the responsibility of successor Representative and agrees to perform and be bound by all of the provisions of this Agreement and the Escrow Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative. Each successor Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal shall have all of the Representative or power, authority, rights and privileges conferred by this Agreement upon the termination of this Agreementoriginal Representative, and the term “Representative” as used herein and in the Escrow Agreement shall be deemed to include any successor Representative.
(e) The Representative may resign at any time upon 30 days’ written noticerepresents and warrants as follows: The Representative is duly organized, validly existing and may be removed for any reason or no reason by approval from and by written consent of a majority in interest good standing under the Laws of the Stockholders; provided, however, in no event shall State of Delaware. The Representative be removed without has the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy requisite power and authority to enter into this Agreement and each of the written consent appointing such new Representative shall be sent Ancillary Agreements to ▇▇▇▇▇▇▇▇which it is a party, such appointment to be effective upon perform its obligations hereunder and thereunder and to consummate the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; providedtransactions contemplated hereby and thereby. The execution, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions delivery and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated performance by the Representative (of this Agreement and each of the “Expense Fund”), Ancillary Agreements to which it will be used for a party and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on its part, and no other action is necessary on its part to authorize this Agreement or any expenses incurred Ancillary Agreement to which it will be a party or to consummate the transactions contemplated hereby and thereby. This Agreement has been, and each of the Ancillary Agreements to which it will be a party will at the Closing be, duly executed and delivered by it. Assuming due authorization, execution and delivery by each other party thereto, this Agreement constitutes, and each of the Representative. The Securityholders Ancillary Agreements to which it will not receive any interest or earnings on be a party at the Expense Fund Closing will constitute, the valid 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion binding obligation of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders enforceable against it in accordance with Section 2.3(dits terms, except as limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar Laws relating to creditors’ rights generally, and (the “Expense Fund Distribution”). For tax purposesii) general principles of equity, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders whether such enforceability is considered in a proceeding in equity or at the time of ClosingLaw.
Appears in 1 contract
Representative. (a) By the adoption execution and delivery of the Merger, and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, including counterparts hereof, each of the Securityholders Shareholder hereby irrevocably nominate, constitute constitutes and appoint the Representative, as of the Closing, appoints ▇▇▇▇▇ ▇▇▇▇▇▇▇ as the true and lawful agent and attorney in attorney-in-fact of each Securityholdersuch Shareholder with full powers of substitution (the “Representative”), for and, if substituted, the Representative shall promptly notify Buyer of such substitution, to act in the name, place and stead of such Shareholder with respect to this Agreement, as the same may be from time to time amended, and with respect to the transfer of such Shareholder’s Company Stock to Buyer pursuant hereto and the transactions contemplated hereby, and to do or refrain from doing all purposes such acts and things, and to execute all such documents, as the Representative shall deem necessary or appropriate in connection with this Agreement, the Ancillary Documents or any of the transactions contemplated hereby or thereby. In the event of the death or other incapacity of the then current Representative, or resignation of the Representative, Shareholders which on the date hereof hold a majority of the Company Stock, shall, by any writing executed by the appropriate number of Shareholders and the new Representative (counterparts and facsimiles of signatures acceptable) approve and appoint a new Representative by delivering a written notice to that effect, whereupon the person designated in such notice shall be the new Representative with respect to all actions taken and/or documents signed from and after actual receipt by Buyer of such notice.
(b) Without limiting the generality of the foregoing, the Representative is hereby authorized (i) to receive any related agreementspayment owing to the Shareholders pursuant to Section 2.3, (ii) to execute the Escrow Agreement on behalf of the Shareholders, and (iii) to take all actions on behalf of the Shareholders in connection with full power in its, his any actions taken or her name to be taken under Section 2.3 of this Agreement (including accepting service of process upon the Shareholders and on its, his accepting or her behalf compromising any claim relating to act according the Proposed Purchase Price Calculation). The Representative and the Shareholders hereby agree that any amounts disbursed out of the Escrow Account to the Representative pursuant to the terms of this Agreement and and/or the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken Escrow Agreement shall be distributed by the Representative on behalf of to the Securityholders Shareholders in accordance with Schedule 1 and Exhibit B, as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointmentapplicable. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between of the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, permitted hereunder shall be final, binding and conclusive on the Shareholders and may be relied upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan by Buyer and its Affiliates shall be able to rely conclusively on as the instructions decisions and decisions actions of all of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconductShareholders. The Representative shall not be liable to any of the Shareholders for any action act done or omission omitted by him in good faith pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered mistake of fact or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been Law unless caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, his own gross negligence or willful misconduct. Representative Losses may be recovered by , and the Shareholders shall jointly and severally indemnify the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time Losses arising out of his serving as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation In taking any action or removal of refraining from taking any action whatsoever the Representative shall be protected in relying upon any notice, paper or the termination of this Agreement.
(e) other document reasonably believed by him to be genuine, or upon any evidence reasonably deemed by him to be sufficient. The Representative may resign at any time upon 30 days’ written notice, consult with counsel in connection with his duties and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had fully protected in any such interest act taken, suffered or earnings. The Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors permitted by him in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders good faith in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time advice of Closingcounsel.
Appears in 1 contract
Sources: Stock Purchase Agreement (McJunkin Red Man Holding Corp)
Representative. (a) By the adoption Each of the Merger, and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders Sellers irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇appoints ▇▇▇▇▇▇▇ relating ▇▇▇▇▇▇ (the “Representative”) with power of designation and assignment as his, her or its true and lawful attorney-in-fact and agent with full power of substitution, to act solely and exclusively on behalf of, and in the determination name of, such Seller with the full power, without the consent of such Seller, to exercise as the Merger Consideration and Representative deems appropriate, the determination, dispute and facilitating powers which such Seller could exercise under the disbursement provisions of the Milestone Payments pursuant to this Agreement, the Non-Oak Sellers Indemnity Escrow Agreement or the Oak Indemnity Escrow Agreement and to take all actions necessary or appropriate in the judgment of the Representative in connection with this Agreement, the Non-Oak Sellers Indemnity Escrow Agreement and the Oak Indemnity Escrow Agreement, which shall include the power and authority to amend, modify, waive or provide consent with respect to, any provision of this Agreement, the Non-Oak Sellers Indemnity Escrow Agreement or the Oak Indemnity Escrow Agreement and to execute, deliver and accept such waivers and consents and any and all notices, documents, certificates or other papers to be delivered in connection with this Agreement, the Non-Oak Sellers Indemnity Escrow Agreement and the Oak Indemnity Escrow Agreement and the consummation of the Contemplated Transactions as the Representative may deem necessary or desirable. A decision, act, consent, or instruction of the Representative shall constitute a decision, act, consent or instruction of all of the Sellers and shall be final, binding and conclusive on each Seller. All decisions, acts, consents or instructions of the Representative may be relied upon by any third party as being the Securityholdersdecision, act, consent or instruction of every Seller. In any Third Party Defense in which more than one Seller is an Indemnitor, the Representative shall act on behalf of all Seller Indemnitors. The Buyer and no Securityholder shall have the right to objectBuyer Indemnitees, dissentif applicable, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall will be able entitled to rely conclusively on the instructions exclusively upon any notices and decisions other acts of the Representative as to the determination being legally binding acts of the Merger Consideration each Seller individually and the determination, dispute Sellers collectively. The appointment and facilitating the disbursement power of the Milestone Payments pursuant attorney granted by each Seller to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and deemed coupled with an interest and all authority conferred hereby shall be enforceable notwithstanding irrevocable whether by death or incapacity of any rights such Seller or remedies the occurrence of any other event or events.
(b) Each Seller acknowledges and agrees that the Representative will not be liable to the Sellers for any Securityholder may have act done or omitted hereunder as the Representative while acting in connection with good faith and in the transactions contemplated hereby; and (v) the provisions exercise of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholderreasonable judgment, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution act done or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission omitted pursuant to the advice of counselcounsel will be conclusive evidence of such good faith. The Securityholders will indemnifySellers will, defend jointly and severally, indemnify the Representative and hold it harmless against any Losses incurred without gross negligence or bad faith on the part of the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement acceptance or administration of its rights his duties under this Agreement and the Non-Oak Sellers Indemnity Escrow Agreement and the Oak Indemnity Escrow Agreement.
(c) Each of the Sellers will reimburse the Representative for his, her or its Pro Rata Share of any out-of-pocket, independent, third-party fees and expenses (including fees and expenses of counsel, accountants and other agreement entered into advisors) incurred by the Representative that arise out of or are in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered acceptance or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion administration of the Representative’s responsibilities, duties under this Agreement and the Representative will deliver any remaining balance of Non-Oak Sellers Indemnity Escrow Agreement and the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of ClosingOak Indemnity Escrow Agreement.
Appears in 1 contract
Representative. (a) By the adoption of the Merger, and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ ▇▇▇▇ is hereby appointed, authorized and empowered to act the Representative, for the benefit of Sellers and the Equityholders, as the exclusive agent and attorney-in-fact to act on behalf of each Seller and Equityholder, in connection with and to facilitate the consummation of the transactions contemplated hereby, including pursuant to the Related Agreements, which will include the power and authority:
(i) to execute and deliver the Related Agreements (with such amendments, modifications or changes therein as to which the Representative, in its sole discretion, will have consented) and to agree to such amendments or modifications thereto as the Representative, in its sole discretion, determines to be desirable;
(ii) to negotiate, execute and deliver such waivers, modifications, amendments, consents and other documents required or permitted to be given in connection with this Agreement and the Related Agreements and the consummation of the transactions contemplated hereby and thereby as the Representative, in its sole discretion, may deem necessary or desirable;
(iii) to take any action on behalf of Sellers and the Equityholders or any individual Seller or Equityholder that may be necessary or desirable, as determined by the Representative in its sole discretion, in connection with negotiating or entering into settlements, resolutions and compromises with respect to the adjustments or payments contemplated by Section 2.4;
(iv) to collect and receive all moneys and other proceeds and property payable to the Representative, RGA or the Equityholders from Purchasers as described herein or in the Related Agreements, and, subject to any applicable withholding retention laws, and net of any out-of-pocket expenses incurred by the Representative, the Representative will disburse and pay, except as otherwise provided hereunder, any amount payable to RGA or the Equityholders to each of RGA or Equityholders as set forth in the operating agreement of RGA and/or in accordance with the allocation principles set forth on Schedule 2.5;
(v) as the Representative, to enforce and protect the rights and interests of Sellers and to enforce and protect the rights and interests of the Representative arising out of or under or in any manner relating to this Agreement and the Related Agreements or the transactions provided for herein or therein, and to take any and all actions which the Representative believes are necessary or appropriate under the Related Agreements or this Agreement, including actions in connection with the determination of any payment due hereunder or thereunder for and on behalf of Sellers or Equityholders, including (A) assert any claim or institute any action, proceeding or investigation; (B) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by an MMT Party or any other Person, or by any federal, state or local Governmental Authority against the Merger Consideration Representative or any Seller or Equityholder, and receive process on behalf of any or all Sellers or Equityholders in any such claim, action, proceeding or investigation and compromise or settle on such terms as the determinationRepresentative will determine to be appropriate, dispute and facilitating give receipts, releases and discharges with respect to, any such claim, action, proceeding or investigation; (C) file any proofs of debt, claims and petitions as the disbursement Representative may deem advisable or necessary; (D) settle or compromise any claims asserted under this Agreement or the Related Agreements; and (E) file and prosecute appeals from any decision, judgment or award rendered in any such action, proceeding or investigation, it being understood that the Representative will not have any obligation to take any such actions, and will not have any liability for any failure to take any such actions;
(vi) to refrain from enforcing any right of any Seller, Equityholder or the Milestone Payments pursuant Representative arising out of or under or in any manner relating to this Agreement, shall the Related Agreements or any other agreement, instrument or document in connection with the foregoing; provided, however, that no such failure to act on the part of the Representative, except as otherwise provided in this Agreement, will be deemed a waiver of any such right or interest by the Representative or by such Seller or Equityholder unless such waiver is in writing signed by the waiving party or by the Representative; and
(vii) to make, execute, acknowledge, deliver and receive all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement, the Related Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith.
(b) All actions decisions and instructions of the Representative will be conclusive and binding upon all of Sellers the SecurityholdersEquityholders and no Seller, Equityholder or any other Person acting on behalf of any Seller will have any claim or cause of action against the Representative, and the Representative will have no Securityholder shall have liability to any Seller, Equityholder or any other Person acting on behalf of any Seller or Equityholder, for any action taken, decision made or instruction given by the right Representative in connection with this Agreement or any Related Agreements, except in the case of the Representative’s own gross negligence or willful misconduct. In the performance of its duties hereunder, the Representative will be entitled to objectrely upon any document or instrument reasonably believed by it to be genuine, dissentaccurate as to content and signed by any Seller, protest any Equityholder, any MMT Party or otherwise contest any other Person. The Representative may assume that any Person purporting to give any notice in accordance with the sameprovisions hereof has been duly authorized to do so.
(c) Each Securityholder agrees that: (i) Kardigan The Representative will have such powers and its Affiliates shall authority as are necessary or appropriate to carry out the functions assigned to it under this Agreement and in any other document delivered in connection herewith; provided, that the Representative will have no obligation to act on behalf of Sellers or the Equityholders. The Representative will at all times be able entitled to rely conclusively on any directions received from Equityholders which collectively owned, as of immediately prior to the Closing, more than 75% of the equity securities of Sellers; provided, that the Representative will not be required to follow any such direction, and will be under no obligation to take any action in its capacity as the Representative based upon such direction. The Representative will be entitled to engage such counsel, experts and other agents and consultants as it may deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of willful misconduct on the instructions and decisions part of the Representative as Representative) will be entitled to conclusively rely on the opinions and advice of such Persons. Notwithstanding anything to the determination contrary contained herein, the Representative in its capacity as such will have no fiduciary duties or responsibilities to any Seller or Equityholder and no duties or responsibilities except for those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Seller or Equityholder will otherwise exist against or with respect to the Merger Consideration and Representative in its capacity as such.
(d) In no event will the determinationRepresentative be liable to any Seller or Equityholder hereunder or in connection herewith for any special, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement indirect, consequential, contingent, speculative, punitive or exemplary damages, or lost profits, diminution in value or any damages based on any type of multiple of earnings, cash flow or similar measure or for any liabilities resulting from the actions of a Seller or Equityholder other than the Representative acting in its capacity as such. The MMT Parties will have the right to rely upon all actions required taken or omitted to be taken by the Representative under pursuant to this Agreement and the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Related Agreements, including the determination calculations required by Section 2.4, all of the Merger Consideration which actions or omissions will be legally binding upon Sellers and the determination, dispute and disbursement Equityholders. The grant of the Milestone Payments only with the Representative authority provided for herein (on behalf of the Securityholdersi) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and is coupled with an interest and shall will be enforceable notwithstanding irrevocable by any rights act of any Seller or remedies that by operation of Law and all of the indemnities, immunities, authority and power granted to the Representative hereunder will survive the death, incompetency, bankruptcy or liquidation of any Securityholder may have in connection with the transactions contemplated hereby; Seller and (vii) will survive the provisions Closing or any termination of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and Agreement or any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseRelated Agreements.
(de) The Representative will incur no not be liable to any Seller or Equityholder for any act done or omitted hereunder as Representative while acting in good faith. Sellers and the Equityholders will indemnify the Representative and hold the Representative harmless against any loss, liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its or expense incurred without gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to misconduct on the advice part of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from or any of its Affiliates and against any of their respective partners, members, attorneys, accountants, advisors or controlling Persons and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the acceptance or administration of the Representative’s enforcement duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Representative. Each MMT Party (on its behalf and on behalf of its rights Affiliates) acknowledges that the Representative is party to this Agreement solely for purposes of serving as the “Representative” hereunder and no claim will be brought by or on behalf of an MMT Party or any of its Affiliates against the Representative with respect to this Agreement or the agreements or transactions contemplated hereby or any certificate, 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” at or prior to the Closing will not be deemed to require performance by, or be an agreement of, the Representative unless performance by the Representative is expressly provided for in such covenant or the Representative expressly so agrees).
(f) All out-of-pocket fees and expenses (including legal, accounting and other advisors’ fees and expenses, if applicable) reasonably incurred by the Representative in performing any actions under this Agreement or the Related Agreements will be paid out of the Representative Fund from time to time, as and when such fees and expenses are incurred. In the event that the amount of the Representative Fund is insufficient to satisfy all expense reimbursement and indemnification payments to which the Representative is entitled pursuant to this Section 9.13 upon written notice from the Representative to the Equityholders as to the existence of a deficiency toward the payment of any such expense reimbursement or indemnification amount, as the case may be, each Equityholder will promptly deliver to the Representative full payment of such Equityholder’s Pro Rata Portion of the amount of such deficiency. The Representative will establish such terms and procedures for administering, investing and disbursing any amounts from the Representative Fund as it may determine in its reasonable judgment to be necessary, advisable or desirable to give effect to the provisions of this Agreement. If any balance of the Representative Fund remains undisbursed at such time as all disputes, claims and other agreement entered into in connection with matters relating to the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated Agreement and all other instruments and agreements to be delivered pursuant hereto have been caused by the bad faithfinally resolved, fraud, gross negligence or willful misconduct of the Representative, then the Representative will reimburse the Securityholders the amount distribute to each Equityholder, by wire transfer of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the immediately available funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”)each Equityholder, which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event Equityholder’s Pro Rata Portion of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any such remaining balance of the Expense Fund to Kardigan for further distribution Representative Fund.
(g) Any resignation by the Representative will not be effective until a new Representative will be appointed by Equityholders who held more than 50% of the aggregate equity securities of Sellers, immediately prior to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Sources: Purchase Agreement (Medicine Man Technologies, Inc.)
Representative. (a) By the adoption of the Merger, Effective upon and by virtue of the execution Required Stockholder Approval and his, her or its acceptance of the consideration payable under the terms and conditions of this Agreement, and without any further act of any of the Company Equityholders, each Company Equityholder hereby appoints the Representative as his, her or its attorney-in-fact and agent for and on behalf of such Company Equityholder for purposes of this Agreement and/or acceptance of and the Escrow Agreement and any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute other agreements and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes documents executed or delivered in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all The Representative shall take such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under this Agreement and the Ancillary AgreementsEscrow Agreement and any other agreements and documents executed or delivered in connection with this Agreement and such other actions on behalf of such Company Equityholder as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including, without limitation, (i) accepting service of process on the Company Equityholders, (ii) executing and delivering this Agreement, the Escrow Agreement and any other ancillary documents and negotiating and executing such amendments, modifications, waivers or changes thereto as to which the Representative, in its sole discretion, shall have consented (provided that any waiver or amendment that shall adversely and disproportionately affect the rights or obligations of any Company Equityholder as compared to other Company Equityholders shall require the prior written consent of such Company Equityholder), (iii) receiving or providing notices on behalf of the Company Equityholders with respect to any matter or Actions arising out of or relating to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby, (iv) taking all actions and making all filings on behalf of such Company Equityholders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement, (v) agreeing to, negotiating, entering into settlements and compromises of, complying with orders of courts with respect to, and no Securityholder otherwise administering and handling any claims under this Agreement or the Escrow Agreement on behalf of such Company Equityholders, (vi) interpreting all terms of this Agreement; (vii) instituting, prosecuting and/or defending lawsuits; (viii) satisfying from the Escrow Account and the Representative Reserve costs, expenses and/or liabilities incurred by the Representative in its capacity as the Representative and otherwise in accordance with this Agreement and/or the Escrow Agreement, (ix) in connection with any of the foregoing actions, engaging and hiring accountants, auditors, appraisers, legal counsel and other legal and financial experts as may be necessary and appropriate properly to discharge the Representative’s duties and obligations hereunder and under the Escrow Agreement and (x) taking all other actions that are either necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing or contemplated by the terms of this Agreement or the Escrow Agreement. The Representative hereby accepts such appointment. The appointment of the Representative as each Company Equityholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person to represent such Company Equityholder with regard to this Agreement and the Escrow Agreement and any other agreements or documents executed or delivered in connection with this Agreement. The Representative is the sole and exclusive representative of each of the Company Equityholders for any purpose provided for by this Agreement. Representative shall be bound by the same confidentiality restrictions binding Company pursuant to Section 5.7 provided, however, that the Representative shall use commercially reasonable efforts based on contact information available to the Representative to keep the Company Equityholders reasonably informed with respect to actions of Representative pursuant to the authority granted Representative under this Agreement which actions have a material impact on the amounts payable to the Company Equityholders. Each Company Equityholder shall promptly provide written notice to the Representative of any cause change of action against Kardigan address of such Company Equityholder.
(b) A decision, act, consent or instruction of the Representative hereunder shall constitute a decision, act, consent or instruction of all Company Equityholders and shall be final, binding and conclusive upon each such Company Equityholder, and Parent and the Surviving Company may rely upon any such decision, act, consent or instruction of the Representative as being the decision, act, consent or instruction of each and every such Company Equityholder. Parent, the Surviving Company and the Escrow Agent shall be relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Representative.
(c) Certain Company Equityholders have entered into a letter agreement with the Representative to provide direction to the Representative in connection with the performance of its Affiliates for services under this Agreement and the Escrow Agreement (such Company Equityholders, included their individual representatives, hereinafter referred to as the “Advisory Group”). Neither the Representative and its members, managers, directors, officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Representative Group”) shall incur liability with respect to any action taken or suffered by such Person any Company Equityholder in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Representative to be genuine and to have been signed by such Company Equityholder (and shall have no responsibility to determine the instructions authenticity thereof), nor for any other action or decisions inaction, except the gross negligence, bad faith or willful misconduct of the Representative; Representative Group. In all questions arising under this Agreement or the Escrow Agreement, the Representative may rely on the advice of outside counsel, and the Representative shall not be liable to any Company Equityholder for anything done, omitted or suffered in good faith by Representative based on such advice. No provision of this Agreement or the Escrow Agreement shall require the Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement or the Escrow Agreement on behalf of any Company Equityholders.
(iid) Kardigan Each Company Equityholder shall be required to file severally, but not jointly (based on such Company Equityholder’s Fully Diluted Ownership Percentage), indemnify the Representative Group and negotiate hold the Representative Group harmless against any claims loss, liability or disputes related to expense incurred without gross negligence, bad faith or willful misconduct on the part of the Representative Group and arising out of or in connection with the Ancillary Agreementsacceptance or administration of the Representative’s duties hereunder, including the determination reasonable fees and expenses of any legal counsel or other advisors reasonably retained by the Representative. Notwithstanding the foregoing, the Representative’s standard hourly rates and all out-of-pocket fees and expenses incurred by the Representative in performing its duties shall be borne first by the Preferred Stockholders and Warrant Holders out of the Merger Consideration Representative Reserve, second by the Preferred Stockholders and Warrant Holders out of the Escrow Fund in accordance with their Proportionate Share, third by the Company Equityholders paid in accordance with their respective Fully Diluted Ownership Percentages of such fees and expenses out of any Earnout Payment otherwise distributable to the Company Equityholders, and, thereafter, directly from the Company Equityholders, in accordance with their respective Fully Diluted Ownership Percentages. As soon as practicable following the termination of all of the Representative’s obligations related to this Agreement and the determinationtransactions hereunder, dispute and disbursement as determined in the sole discretion of the Milestone Payments Representative, the Representative shall distribute the remaining portion of the Representative Reserve (if any) to the Paying Agent for prompt distribution to the Preferred Stockholders and Warrant Holders in accordance with their Proportionate Share of such amount by wire transfer of immediately available funds (any such distribution, a “Reserve Distribution”).
(e) The Representative Reserve shall be held in a segregated client account as a trust fund by the Representative, separate from the Representative’s corporate funds and shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any party. The Representative Reserve shall be used only for the purposes of paying directly, or reimbursing the Representative for, it standard hourly rates, any losses, liabilities or expenses incurred by it pursuant to this Agreement, the Escrow Agreement or any Representative engagement agreement. The Preferred Stockholders and Warrant Holders shall not receive interest or other earnings on amounts in the Representative Reserve and the Preferred Stockholders and Warrant Holders irrevocably transfer and assign to the Representative any ownership right that they may have in any interest that may accrue on amounts in the Representative Reserve. The Representative is not providing any investment supervision, recommendations or advice. The Representative shall have no responsibility or liability for any loss of principal of the Representative Reserve other than as a result of its gross negligence or willful misconduct. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Reserve, and has no tax reporting obligations hereunder. The Representative shall be compensated at its standard hourly rates for its efforts under this Agreement.
(f) At any time Stockholders representing at least sixty percent (60%) of the shares of the Series D Combined outstanding immediately prior to the Effective Time may, by written consent, appoint another Person as Representative. Notice together with a copy of the written consent appointing such Person and bearing the signatures of such Stockholders must be delivered to Parent and, if applicable, the Escrow Agent not less than ten (10) days prior to such appointment. Such appointment shall be effective upon the later of the date indicated in the consent or the date ten (10) days after such consent is received by Parent and, if applicable, the Escrow Agent.
(g) In the event that the Representative becomes unable or unwilling to continue in his or its capacity as the Representative, or if the Representative resigns as a Representative, Stockholders representing at least sixty percent (60%) of the shares of the Series D Combined outstanding immediately prior to the Effective Time may, by written consent, appoint a new representative as the Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of such Stockholders must be delivered to Parent and, if applicable, the Escrow Agent. Such appointment shall be effective upon the later of the date indicated in the consent or the date ten (10) days after such consent is received by Parent and, if applicable, the Escrow Agent.
(h) The immunities and rights to indemnification shall survive the resignation or removal of Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement or the Escrow Agreement. The Representative shall be entitled to: (i) rely upon the Distribution Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the Securityholdersapplicable Company Equityholder or other party. The grant of authority provided for herein (A) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and is coupled with an interest and shall be enforceable notwithstanding irrevocable and survive the death, incompetency, bankruptcy or liquidation of any rights Company Equityholder, (B) shall survive the delivery of an assignment by any Company Equityholder of the whole or remedies that any Securityholder may have fraction of his, her or its interest in connection with the transactions contemplated hereby; any post-Closing consideration and (vC) shall survive the consummation of the Mergers. The provisions of this Section 1.4 8.1 shall be binding upon the executors, heirs, legal representatives representatives, successors and successors assigns of each SecurityholderCompany Equityholder, and any references in this Agreement to a Securityholder any Company Equityholder or the Company Equityholders shall mean and include the successors to such SecurityholderCompany Equityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Sources: Merger Agreement (AtriCure, Inc.)
Representative. In order to efficiently administer the transactions contemplated hereby, including (ai) By the defense and/or settlement of any claims for which the Shareholders may be required to indemnify Buyer pursuant to Article X hereof and (ii) entering into the Escrow Agreement, the Shareholders, by their adoption of this Agreement and the approval of the Merger, and by virtue agree to the appointment of the execution of this Agreement and/or acceptance of Representative. The Representative is hereby authorized to take any benefits thereof, including any consideration payable pursuant and all action as is contemplated to this Agreement, each of be taken by the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to Shareholders by the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary AgreementsEscrow Agreement. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon all of the Securityholders, Shareholders and no Securityholder Shareholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees . By their adoption of this Agreement and the approval of the Merger, the Shareholders further agree that: (ia) Kardigan and its Affiliates Buyer shall be able to rely conclusively exclusively on the instructions and decisions of the Representative as to the determination settlement of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments claims for indemnification by Buyer pursuant to this Agreement Article X hereof, or any other actions required to be taken by the Representative under the Ancillary Agreementshereunder, and no Securityholder party hereunder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person Buyer in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iiib) all actions, decisions and instructions of the Representative shall be final, conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the RepresentativeShareholders; A-10
(ivc) the provisions of this Section 1.4 2.11 are independent and severable, are irrevocable and coupled with an interest interest, and shall be enforceable notwithstanding any rights or remedies that any Securityholder Shareholder may have in connection with the transactions contemplated herebyby this Agreement and the Escrow Agreement; and (vd) the provisions of this Section 1.4 2.11 shall be binding upon the executors, heirs, legal representatives and successors of each SecurityholderShareholder, and any references in this Agreement to a Securityholder Shareholder shall mean and include the successors to such Securityholder’s the Shareholders' rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) By the adoption of In order to efficiently administer the Merger, and by virtue of including (i) the execution of this Agreement and/or acceptance determination of any benefits thereofadjustment pursuant to Section 2.16 and (ii) the dispute, including defense and/or settlement of any consideration payable claims for which the Company Indemnitors may be required to indemnify Parent and/or the Surviving Corporation pursuant to this Agreement, each the Principal Shareholders, by their execution of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreementsthe other Applicable Holders, with full power in its, his or her name by the approval of the Merger and on its, his or her behalf to act according to the terms adoption of this Agreement and/or their acceptance of any consideration pursuant to this Agreement, hereby designate and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by appoint the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholderstheir representative, attorney-in-fact and Shareholder Representative Services LLC hereby accepts such appointmentagent. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more SecurityholdersApplicable Holder, or by operation of applicable lawLaw, whether by death such Applicable Holder’s death, disability, protective supervision or any other event.
(b) All decisions The Principal Shareholders, by their execution of this Agreement, and actions the other Applicable Holders, by the approval of the Merger and adoption of this Agreement and/or their acceptance of any consideration pursuant to this Agreement, hereby authorize the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ : (i) to make all decisions relating to the determination of any adjustments pursuant to Section 2.16, (ii) to take all action necessary in connection with the Merger Consideration waiver of any condition to the obligations of the Company and the determinationApplicable Holders to consummate the transactions contemplated hereby, dispute or the dispute, defense and/or settlement of any claims for which the Applicable Holders may be required to indemnify Parent and/or the Surviving Corporation pursuant to Article 9, (iii) to give and facilitating receive all notices permitted or required to be given under this Agreement, (iv) to execute and deliver the disbursement Escrow Agreement and (v) to take any and all additional action as is contemplated to be taken by or on behalf of the Milestone Payments Applicable Holders by the terms of this Agreement.
(c) If the Representative becomes unable to perform his responsibilities hereunder or resigns from such position, the Applicable Holders (acting by the vote of the Applicable Holders who immediately before the Effective Time held the right to receive at least a majority of the Common Equivalent Merger Consideration) shall select another representative to fill the vacancy of the Representative initially chosen by the Applicable Holders, and such substituted representative shall be deemed to be the Representative for all purposes of this Agreement and the documents delivered pursuant to this Agreement, .
(d) All decisions and actions of the Representative on behalf of the Applicable Holders shall be deemed to be facts ascertainable outside of this Agreement and shall be binding upon the Securityholdersall Applicable Holders, and no Securityholder Applicable Holder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions . A decision, act, consent, instruction or action of the Representative, including any agreement between the Representative as and Parent relating to the determination of the Final Closing Net Working Capital, the Merger Consideration or the dispute, defense or settlement of any claims for which the Applicable Holders may be required to indemnify Parent and/or the Surviving Corporation pursuant to Article 9, shall constitute a decision, act, consent, instruction or action of all Applicable Holders and shall be binding and conclusive upon each of such Applicable Holders and the determinationParties, dispute the Surviving Corporation and facilitating the disbursement Escrow Agent may rely upon any such decision, act, consent, instruction or action as being the decision, act, consent or instructions of each and every such Applicable Holder. Parent, the Surviving Corporation and the Escrow Agent are hereby relieved from any liability to any Applicable Holder for any acts done by them in accordance with such decision, act, consent, instruction or action of the Milestone Payments Representative.
(e) The Representative will receive no compensation for services as the Representative. By his, her or its execution of this Agreement, each Principal Shareholder, and by their approval of the Merger and adoption of this Agreement, and/or their acceptance of any consideration pursuant to this Agreement Agreement, each other Applicable Holder, agrees that the Applicable Holders will pay from the Representative Expense Fund all (i) professional fees and expenses of any attorney, accountant or any other actions required to be taken advisors or expert retained by the Representative under and other reasonable out-of-pocket expenses incurred by the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or Representative in connection with the Ancillary Agreements, including the determination performance of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to duties under this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend Escrow Agreement and hold harmless the Representative from and against (ii) any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including actually incurred or suffered by the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) Representative in connection with this Agreement or the Escrow Agreement as the Representative (collectively, the “Representative LossesExpenses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss Expense is suffered or incurred; provided, that in the event that if any such Representative Loss Expense is finally adjudicated to have been directly caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders Applicable Holders the amount of such indemnified Representative Loss Expense to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Such Representative Losses Expenses may only be recovered by the Representative from (i) the funds in the Representative Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid or from the aforementioned sources of funds, this does not relieve Escrow Fund as provided below or from the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurredApplicable Holders directly. In no event will the Representative be required to advance its his own funds on behalf of the Securityholders Applicable Holders or otherwise. Notwithstanding anything Following the resolution of all pending claims related thereto (and, for the avoidance of doubt, no earlier), the Representative shall have the right to recover Representative Expenses in this Agreement excess of the Representative Expense Fund from the Escrow Fund before any distribution to the contraryApplicable Holders. By his, her or its execution of this Agreement, each Principal Shareholder, and by their approval of the Merger and adoption of this Agreement, and/or their acceptance of any restrictions consideration pursuant to this Agreement, each other Applicable Holder, agrees that the Applicable Holders will on an individual and several basis (and not jointly as to or limitations with any other Applicable Holder) indemnify, defend, hold harmless and reimburse, on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable toa Proceeds Pro Rata Basis, the Securityholders set forth elsewhere Representative for Representative Expenses, in this Agreement each case as such Representative Expenses are not intended to be applicable to the indemnities provided to the Representative hereunderincurred. The foregoing indemnities indemnity will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or the Representative and the Applicable Holders acknowledge and agree that the provisions of this Section 2.18(e) shall impose no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely obligations on the decisions and actions Company, the Surviving Corporation, Parent or any of the prior Representative as described hereintheir respective Affiliates.
(f) Pursuant By his, her or its execution of this Agreement, each Principal Shareholder, and by their approval of the Merger and adoption of this Agreement, and/or their acceptance of any consideration pursuant to this Agreement, each other Applicable Holder, agrees that:
(i) Parent shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of any adjustment pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders2.16, the Expense Fund Amount settlement of any claims for indemnification by Parent and/or the Surviving Corporation pursuant to an account designated Article 9 or any other actions required or permitted to be taken by the Representative (the “Expense Fund”)hereunder, which will be used and no party shall have any cause of action against Parent for any expenses incurred action taken by Parent in reliance upon the Representative. The Securityholders will not receive any interest instructions or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion decisions of the Representative’s responsibilities, ;
(ii) no Applicable Holder shall have any cause of action against the Representative will deliver for, and the Representative shall have no liability to any remaining balance Applicable Holder in connection with, any action taken or omitted, decision made or instruction given by the Representative under this Agreement, except for liability directly resulting from fraud, gross negligence or willful misconduct on the part of the Expense Fund Representative;
(iii) each such Applicable Holder will, on an individual and several basis based on his, her or its Proceeds Pro Rata Basis (and not jointly as to Kardigan for further distribution to or with any other Applicable Holder) indemnify, defend and hold harmless the Securityholders Representative in accordance with Section 2.3(d2.18(e);
(iv) the provisions of this Section 2.18 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Applicable Holder may have in connection with the transactions contemplated by this Agreement;
(v) remedies available at law for any breach of the “Expense Fund Distribution”). For tax purposesprovisions of this Section 2.18 may be inadequate; therefore, Parent and the Surviving Corporation shall be entitled to seek temporary and permanent injunctive relief without the necessity of proving damages if either Parent and/or the Surviving Corporation brings an action to enforce the provisions of this Section 2.18; and
(vi) the provisions of this Section 2.18 shall be binding upon the executors, heirs, legal representatives, personal representatives, successors and permitted assigns of each Applicable Holder, and any references in this Agreement to an Applicable Holder shall mean and include the successors to the Applicable Holder’s rights hereunder, whether pursuant to testamentary disposition, the Expense Fund will be treated as having been received Laws of descent and voluntarily set aside by the Securityholders at the time of Closingdistribution or otherwise.
Appears in 1 contract
Sources: Merger Agreement (ZAGG Inc)
Representative. (a) By the adoption of the Merger, and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in attorney-in-fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements Transaction Documents in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary AgreementsTransaction Documents, (2) waiving rights, (3) discharging liabilities Liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and the Royalty Payments, (5) defending and settling of any claims under Article VII, (6) facilitating the disbursement of the Holdback Fund (or any portion thereof) in accordance with this Agreement and (7) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary AgreementsTransaction Documents. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable lawLaw, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ Buyer relating to the determination of the Merger Consideration and Consideration, the determination, dispute and facilitating the disbursement of the Milestone Payments and Royalty Payments or the defense or settlement of any claims for which the Securityholders may be required to indemnify the Buyer Indemnified Parties pursuant to Article VII hereof as well as facilitating the disbursement of all or any portion of the Holdback Fund pursuant to this AgreementAgreement in respect thereof, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) . Each Securityholder of the Securityholders acknowledges and agrees that: (i) Kardigan and its Affiliates shall that the Representative will be able advised by and/or directed by the Advisory Committee serving as an advisory committee to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.that
Appears in 1 contract
Representative. (a) By the adoption of the Merger, Effective upon and by virtue of the execution of this Agreement and/or acceptance Member Approval, and without any further act of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders Members, Optionholders or Warrantholders, the Representative is hereby irrevocably nominate, constitute and appoint the Representative, as of the Closing, appointed as the true and lawful agent representative, agent, proxy, and attorney in fact of each Securityholder(coupled with an interest) for all the Members, Optionholders and Warrantholders for all purposes under this Agreement including the full power and authority on the Members’, Optionholders’ and Warrantholders’ behalf: (i) to consummate the transactions contemplated under this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (ii) to negotiate claims and disputes arising under, or relating to, this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (including, for the avoidance of doubt, the adjustment of Closing Cash Proceeds contemplated by Section 3.03), (iii) to receive and disburse to, or caused to be received or disbursed to, any Member, Optionholder or Warrantholder any funds received on behalf of such Member, Optionholder or Warrantholder 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 Member, Optionholder or Warrantholder pursuant to this Agreement (including, for the avoidance of doubt, any portion of the Merger Consideration) or to satisfy (on behalf of the Members, Optionholders and Warrantholders) any and all obligations or liabilities of any Member, Optionholder, Warrantholder or the Representative in the performance of any of their commitments hereunder (including, for the avoidance of doubt, the satisfaction of payment obligations (on behalf of the Members, Optionholders and Warrantholders) in connection with the adjustment of Closing Cash Proceeds contemplated by Section 3.03), (v) to execute and deliver any amendment or waiver to this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of any Member, Optionholder or Warrantholder), (vi) to receive and disburse to, or cause to be received or disbursed to, any individual pursuant to any incentive compensation agreement providing for a transaction bonus, in effect as of the Closing and (vii) to take all other actions to be taken by or on behalf of any Member, Optionholder or Warrantholder in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representativeother agreements, instruments, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments documents contemplated by, hereby or deemed advisable executed in connection with, the Ancillary Agreementsherewith. Any Such agency and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is proxy are coupled with an interest, is granted in consideration are therefore irrevocable without the consent of the mutual covenants and agreements made herein, shall be irrevocable Representative and shall not be terminated by any act survive the death, incapacity, bankruptcy, dissolution or liquidation of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) each Member and Optionholder. All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholderseach Member and Optionholder, and no Securityholder Member, Optionholder or Warrantholder 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.
(b) Effective upon and by virtue of the Member Approval, and without any further act of any of the Members, Optionholders or Warrantholders, the Representative and its Non‑Recourse Parties shall be indemnified, held harmless and reimbursed by each Member, Optionholder and Warrantholder severally (based on each Member’s, Optionholders’ and Warrantholder’s Allocation Percentage), and not jointly, against all costs, expenses (including reasonable attorneys’ fees), judgments, fines and 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 (including, for the avoidance of doubt, the satisfaction of payment obligations (on behalf of the Members, Optionholders and Warrantholders) 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 Members, Optionholders and Warrantholders (and, not for the avoidance, on behalf of the Representative in any other capacity, as a Member or otherwise).
(c) Each Securityholder agrees that: (i) Kardigan and Neither the Representative nor any of its Affiliates Non‑Recourse Parties shall be able incur any liability to rely conclusively on any Member, Optionholder or Warrantholder by virtue of the instructions and decisions failure or refusal of the Representative as or any of its Non‑Recourse Parties for any reason to consummate the transactions contemplated hereby or relating to the determination 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 Member, Optionholder or Warrantholder, regardless of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement legal theory under which such liability or any other actions required obligation may be sought to be taken by 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 under the Ancillary Agreements, and no Securityholder shall have pays or causes to be paid any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative amounts (on behalf of the SecurityholdersMembers, Optionholders and Warrantholders) in connection with any obligation or liability of a Member, Optionholder or Warrantholder 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 with each Securityholder; (iii) all actionsso reimbursed from the Representative Holdback Amount, decisions and instructions of the Representative shall be conclusive indemnified, held harmless and reimbursed by each Member, Optionholder and Warrantholder severally (based on each Member’s, Optionholder’s and Warrantholder’s Allocation Percentage), and not jointly, for such amount(s)). The Representative may, in its sole and absolute discretion, distribute, or caused to be distributed, any or all of the funds received or held by it on behalf of the Members, Optionholders and Warrantholders (including, for the avoidance of doubt, any portion of the Merger Consideration) to one or more Members, Optionholders or Warrantholders 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 Member, Optionholder and Warrantholder. 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 caused to be distributed, all remaining funds held by it on behalf of the Members, Optionholders and Warrantholders to the Members, Optionholders and Warrantholders; 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 other Members 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). Notwithstanding the foregoing, any amounts payable to the Members, Optionholders and Warrantholders in respect of this Section 12.13(d) shall be reduced by the respective amount owed to LVP under the Lightspeed Purchase Agreement. In the event that the Representative or its Affiliates becomes subject to any liability or other obligation, or is required to make any payment in connection with the transactions contemplated by the Merger Agreement, then the Representative shall send each Member, Optionholder and Warrantholder a notice setting forth (i) the amount of such Member’s, Optionholder’s or Warrantholder’s proportionate share of such liability or obligation, and (ii) instructions for remittance of such amount to the Representative.
(e) Notwithstanding anything to the contrary set forth herein, the Representative and its Affiliates shall not be liable for any loss to any Member, Optionholder or Warrantholder 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 the Purchaser or the Merger Sub or the Surviving Entity.
(f) Except as may have been expressly and specifically agreed to in writing by a Member, Optionholder or Warrantholder, on the one hand, and ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, on the other hand, and except for the Representative and its Affiliates (i) ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP has not and is not representing, and shall not be deemed to have represented any Member, Optionholder or Warrantholder in connection with the transactions contemplated hereby, and (ii) ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP has not and is not providing any advice or counsel (including legal advice or counsel), and shall not be deemed to have provided counsel or advice, to any Member, Optionholder or Warrantholder in connection with the transactions contemplated hereby. Each Member, Optionholder and Warrantholder agrees that ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP may represent the Representative and its Affiliates in any matter related to the transaction completed hereby including matters which maybe adverse to such Member, Optionholder or Warrantholder and, in furtherance thereof, each Member, Optionholder and Warrantholder consents to, and waives, without limitation, restriction or condition of any kind, any actual or potential conflict or other actual or potential objection with respect to ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP’s representation of the Representative and its Affiliates in any matter related to the transaction completed hereby.
(g) The Purchaser shall be entitled to deal exclusively with the Representative (or any replacement thereof) on all matters relating to this Agreement and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Member, Optionholder or Warrantholder by the Representative, and on any other action taken or purported to be taken on behalf of any Member, Optionholder or Warrantholder by the Representative, as being fully binding upon such Person. Notices or communications to or from the Representative shall constitute notice to or from each of the Members, Optionholders and Warrantholders. Any decision or action by the Representative hereunder, including any agreement between the Representative and the Purchaser relating to the defense, payment or settlement of any claims hereunder, shall constitute a decision or action of all Securityholders Members, Optionholders and no Securityholder Warrantholders and shall be final, binding and conclusive upon each such Person. No Member, Optionholder or Warrantholder shall have any cause of action against the Representative; (iv) right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for terminated by any action act of any one or omission pursuant to the advice of counsel. The Securityholders will indemnifyMembers, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of Optionholders or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations ofWarrantholders, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal by operation of the Representative or the termination of this AgreementLaw.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) By the adoption of the Merger, and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating ▇▇▇▇▇ (the “Representative”) is hereby designated by each of the Shareholders to serve as the representative of the Shareholders with respect to the determination matters expressly set forth in this Agreement to be performed by the Representative. Each of the Merger Consideration and the determinationShareholders, dispute and facilitating the disbursement by execution of the Milestone Payments pursuant to this Agreement, shall be binding upon hereby irrevocably appoints the SecurityholdersRepresentative as the agent, proxy and no Securityholder shall have attorney-in-fact for such Shareholder for all purposes of this Agreement, including full power and authority on such Shareholder’s behalf (a) to consummate the right transactions contemplated herein, (b) to objectpay such Shareholder’s expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: to disburse any funds received hereunder to such Shareholder and to each other Shareholder, (id) Kardigan to execute and its Affiliates deliver any certificates representing the Company’s shares of beneficial interest and execution of such further instruments as Merger Corp. shall be able reasonably request, (e) to rely conclusively execute and deliver on the instructions and decisions behalf of the Representative as such Shareholder any amendment or waiver hereto, (f) to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any take all other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of such Shareholder in connection herewith, (g) to negotiate, settle, compromise and otherwise handle all claims for indemnification made by any Indemnitee pursuant to Section 9.1 hereof and (h) to do each and every act and exercise any and all rights which such Shareholder or Shareholders collectively are permitted or required to do or exercise under this Agreement. Each of the Securityholders) Shareholders agrees that such agency and not proxy are coupled with each Securityholder; (iii) all actionsan interest, decisions and instructions are therefore irrevocable without the consent of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding survive the death, incapacity or bankruptcy of any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) Shareholder. The Representative will has a duty to serve in good faith and to perform its designated role under the Agreement but, neither the Representative nor any agent employed by him shall incur no any liability in connection with its services pursuant to this Agreement and any related agreements except Shareholder relating to the extent resulting from its gross negligence performance of his duties hereunder except for actions or omissions constituting fraud, bad faith or willful misconduct. The Representative shall not be liable for any action Upon the death or omission pursuant to the advice disability of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or the resignation of ▇▇▇▇▇▇▇ ▇▇▇▇▇ as Representative (such resignation shall only be entitled effective upon delivery of written notice to rely on the decisions Shareholders and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(cSurviving Trust), at ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall become the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closinghereunder.
Appears in 1 contract
Sources: Merger Agreement (Broder Bros Co)
Representative. (a) By The Sellers have appointed the adoption Representative as the representative of the Merger, Sellers and by virtue as the attorney-in-fact and agent for and on behalf of the execution each Seller for purposes of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominateEscrow Agreement, constitute the other Transaction Documents and appoint the Representative, as of the Closing, as the true any other agreements and lawful agent and attorney in fact of each Securityholder, for all purposes documents executed or delivered in connection with this AgreementAgreement or the Transactions, in each case other than the Executive Employment Agreements and the agreements with each Affiliated Provider contemplated by Section 6.17 or Section 7.01(d), and any related agreements, with the Representative has the full power in its, his or her name and on its, his or her behalf authority to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all take such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under this Agreement, the Ancillary AgreementsEscrow Agreement, the other Transaction Documents and no Securityholder shall have any cause of action against Kardigan other agreements and documents executed or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or delivered in connection with this Agreement or the Ancillary Agreements, including the determination of the Merger Consideration Transactions and the determination, dispute and disbursement of the Milestone Payments only with the Representative (such other actions on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights such Sellers as it may deem necessary or remedies that any Securityholder may have appropriate in connection with or to consummate the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this AgreementTransactions, in each case other than under the Executive Employment Agreements and the agreements with each Affiliated Provider contemplated by Section 6.17 or Section 7.01(d), but including (i) negotiating and executing such amendments, modifications, waivers or changes to this Agreement, the Escrow Agreement, the other Transaction Documents and any other ancillary documents and as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of which the Representative, in its sole discretion, shall have consented (in each case other than the Representative will reimburse Executive Employment Agreements and the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraudagreements with each Affiliated Provider contemplated by Section 6.17 or Section 7.01(d)), bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds taking all actions and making all filings on behalf of such Sellers with any Governmental Entity or other Person necessary to effect the Securityholders or otherwise. Notwithstanding anything in this Agreement to consummation of the contraryTransactions, any restrictions or limitations on liability or indemnification obligations (iii) agreeing to, negotiating, entering into settlements and compromises of, or provisions limiting the recourse against non-parties otherwise applicable complying with orders of courts with respect to, and otherwise administering and handling any Claims or other matters under this Agreement, the Securityholders set forth elsewhere Escrow Agreement or the other Transaction Documents on behalf of such Sellers (in this Agreement each case other than the Executive Employment Agreements and the agreements with each Affiliated Provider contemplated by Section 6.17 or Section 7.01(d)), and (iv) taking all other actions that are not intended to be applicable to either necessary or appropriate in the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal judgment of the Representative for the accomplishment of the foregoing or contemplated by the termination terms of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; providedEscrow Agreement, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received other Transaction Documents (in each case other than the Executive Employment Agreements and the agreements with each Affiliated Provider contemplated by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c6.17 or Section 7.01(d), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds is the sole and will not voluntarily make these funds available to its creditors in the event exclusive representative of bankruptcy. As soon as practicable following the completion each of the Representative’s responsibilities, the Representative will deliver Sellers for any remaining balance of the Expense Fund to Kardigan purpose provided for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closingthis Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement
Representative. (a) By the adoption of the Merger, execution and by virtue of the execution delivery of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this AgreementVirginia Law, each of the Securityholders Shareholders hereby irrevocably nominate, constitute and appoint the Representative, as of the Closing, Representative as the true and lawful agent representative, agent, proxy, and attorney in fact of each Securityholder, for all the Shareholders for all purposes under this Agreement including the full power and authority to act on the Shareholders ‘ behalf: (i) to consummate the transactions contemplated under this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (including pursuant to Section 4); (ii) to negotiate disputes arising under, or relating to, this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (including pursuant to Section 4 hereof); (iii) to receive and disburse to the Shareholders any funds received on behalf of the Shareholders under this Agreement or otherwise; (iv) to withhold any amounts received on behalf of the Shareholders to this Agreement or otherwise to satisfy any and all obligations or liabilities incurred by the Shareholders or the Representative in the performance of their duties hereunder; (v) to execute and deliver any amendment or waiver to this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of the Stockholders); and (vi) to take all other actions to be taken by or on behalf of the Shareholders in connection with this AgreementAgreement (including pursuant to Section 4 hereof) and the other agreements, instruments, and any related agreementsdocuments contemplated hereby or executed in connection herewith. The Shareholders, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) by executing and delivering all agreementsthis Agreement, certificates, receipts, instructions further agree that such agency and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is proxy are coupled with an interest, is granted in consideration are therefore irrevocable without the consent of the mutual covenants and agreements made herein, shall be irrevocable Representative and shall not be terminated by any act survive the death, incapacity, bankruptcy, dissolution or liquidation of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) Shareholders. All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon all of the SecurityholdersShareholders, and no Securityholder Shareholders shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan . The Representative shall have no duties or obligations hereunder, including any fiduciary duties, except those set forth herein, and its Affiliates such duties and obligations shall be able determined solely by the express provisions of this Agreement. The power of attorney granted by each Stockholder to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and 13.1 is coupled with an interest and is irrevocable and shall not terminate or otherwise be enforceable notwithstanding affected by the death, disability, incompetence, bankruptcy or insolvency of any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseShareholders.
(db) The Representative will incur no liability in connection with its services By the execution and delivery of this Agreement pursuant to this Agreement Virginia Law, each Stockholder hereby severally, for itself only and any related agreements except not jointly, agrees to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend indemnify and hold harmless the Representative from and his agents and other representatives against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees reasonable attorneys’ fees), judgments, fines and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or amounts incurred by such Persons in connection with the Representative’s enforcement of its rights under this Agreement any action, suit or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated proceeding to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of which the Representative or such other Person is made a party by reason of the termination fact that it is or was acting as the Representative pursuant to the terms of this Agreement.
(ec) The Neither the Representative may resign at nor any time upon 30 days’ written notice, and may be removed of his agents or other representatives shall incur any liability to any Shareholders by virtue of the failure or refusal of such Persons for any reason to consummate the transactions contemplated hereby or relating to the performance of their duties hereunder, except for actions or omissions constituting intentional and knowing fraud. The Representative and his representatives shall have no reason liability in respect of any action, claim or proceeding brought against such Persons by approval from and by written consent any Shareholders, regardless of a majority 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 such Persons took or omitted taking any action in good faith.
(d) A majority-in-interest of the Stockholders; providedShareholders may, howeverby written consent, in no event shall Representative be removed without the Stockholders having first appointed appoint a new representative as the Representative, with the prior consent of Buyer, not to be unreasonably withheld; provided that the consent of Buyer shall not be required if the new Representative who shall assume such duties immediately upon is to be an Affiliate of the removal of prior Representative. Notice of such vote or together with a copy of the written consent appointing such new Representative shall representative and bearing the signatures of Shareholders of a majority-in-interest of those Shareholders must be sent delivered to ▇▇▇▇▇▇▇▇, Buyer not less than 10 days prior to such appointment. Such appointment to will be effective upon the later of the date indicated in such the consent or the date such notice consent is received by ▇▇▇▇▇▇▇▇; providedBuyer. For the purposes of this paragraph (d), that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions a “majority-in-interest of the prior Shareholders” shall mean Shareholders representing in the aggregate over 50% of the percentage interests of the Indemnity Holdback Amount.
(e) In the event that the Representative becomes unable or unwilling to continue in his or its capacity as described hereinRepresentative, or if the Representative resigns as the Representative, a majority-in-interest of the Shareholders may, by written consent, appoint a new representative as the Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of a majority-in-interest of the Shareholders must be delivered to Buyer. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer.
(f) Pursuant The Representative shall be entitled to Section 2.2(c)recover from the Shareholders in accordance with their respective Allocation Percentage any fees and expenses that the Representative may incur in his capacity as such pursuant to this Agreement. In that regard, at the Closing, Kardigan Representative shall deposit, on behalf be entitled to retain $200,000 of the Securityholders, the Expense Fund Amount to an account designated by the Representative Preliminary Merger Consideration (the “Expense FundFunds”)) as a reserve against the payment of expenses incurred in his capacity as the Representative, which will to be used for by the Representative to pay any expenses incurred by the RepresentativeRepresentative in such capacity. The Securityholders will not receive any interest or earnings on Upon the Expense Fund and irrevocably transfer and assign to date at which the Representative any ownership right determines, in his sole discretion, that they may otherwise have had in any such interest or earnings. The Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver not incur any additional expenses in his capacity as the Representative, then the Representative will distribute the remaining balance of the unused Expense Fund to Kardigan for further distribution Funds, if any, to the Securityholders Shareholders pro rata in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closingproportion to their respective Allocation Percentages.
Appears in 1 contract
Representative. (a) By Each Stockholder hereby appoints (and each holder of In the adoption Money Options shall appoint in his or her respective Option Cancellation Agreement) the Representative for and on behalf of Stockholders to give and receive notices and communications in connection with this Agreement and the Mergertransactions contemplated hereby, to authorize and by virtue of agree to adjustments to the execution Cash Payment and Earn-Out Payments under Article 1, to modify the Business Plan and other applicable provisions of this Agreement and/or acceptance Agreement, to take all actions on behalf of any benefits thereof, including any consideration payable Stockholders pursuant to this Agreement, each and to take all actions necessary or appropriate in the judgment of the Securityholders irrevocably nominateRepresentative for the accomplishment of the foregoing. More specifically, constitute the Representative shall have the authority to make all decisions and determinations and to take all actions (including giving Consents or agreeing to any amendments to this Agreement or any Ancillary Agreement to which it is a party or to the termination hereof or thereof) required or permitted hereunder on behalf of each such Stockholder, and any such action, decision or determination so made or taken shall be deemed the action, decision or determination of each such Stockholder, and any notice, communication, document, certificate or information required (other than any notice required by Law or under the Company’s Organizational Documents) to be given to any Stockholder hereunder or pursuant to any Ancillary Agreement shall be deemed so given if given to the Representative. Without limiting the generality of the foregoing, the Representative shall be authorized, in connection with the Closing, to execute all certificates, documents and agreements on behalf of and in the name of Stockholders necessary to effectuate the Closing and related transactions. The Representative shall be authorized to take all actions on behalf of the Stockholders in connection with any claims made under Articles 8 or 9 of this Agreement, to defend or settle such claims, and to make payments in respect of such claims on behalf of Stockholders. The Stockholders may remove or replace the Representative by a vote of holders that owned a majority of the Common Stock immediately prior to Closing. If the Representative shall be removed, resign or otherwise be unable to fulfill its responsibilities hereunder, the Stockholders shall appoint a successor to the Representative, as and shall immediately thereafter notify Buyer of the Closing, identity of such successor. Any such successor shall succeed the former Representative as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion Representative hereunder. No bond will be required of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf will receive no compensation for its services. Notices or communications to or from the Representative will constitute notice to or from each of Stockholders. Notwithstanding anything to the Securityholders as provided contrary herein, in the event of a claim hereunder against a single Participating Equityholder, and not any other Participating Equityholders, such affected Participating Equityholder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts entitled to control the defense of such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other eventclaim.
(b) All decisions and actions by The Representative will not be liable for any act done or omitted hereunder as the Representative, including any agreement between except in the Representative and ▇▇▇▇▇▇▇▇ relating to the determination case of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence bad faith or willful misconduct. The Representative may consult with legal counsel, independent public accountants and other experts selected by it and as between the Representative and the Participating Equityholders, shall not be liable for any action taken or omission pursuant omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Securityholders Stockholders will indemnify, defend severally indemnify the Representative and hold harmless the Representative from and harmless against any Adverse Consequences incurred on the part of the Representative and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement acceptance or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct administration of the Representative, ’s duties hereunder. Buyer agrees that except as may be provided in Article 8 if the Representative is also a Participating Equityholder, it will reimburse the Securityholders the amount of such indemnified Representative Loss not look to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination underlying assets of this Agreement.the Representative for the satisfaction of any obligations of the Company or any of the Participating Equityholders
(ec) The A decision, act, consent or instruction of the Representative may resign at any time will constitute a decision of all Stockholders and will be final, binding and conclusive upon 30 days’ written noticeeach such -75- Stockholder, and Buyer may be removed rely upon any such decision, act, consent or instruction of the Representative as being the decision, act, consent or instruction of each such Stockholder. Buyer Indemnitees are hereby relieved from any Adverse Consequences to any Person for any reason or no reason acts done by approval from and by written consent of a majority such Buyer Indemnitees in interest of the Stockholders; providedaccordance with such decision, howeveract, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion instruction of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Sources: Merger Agreement (Allscripts Healthcare Solutions, Inc.)
Representative. (a) By The Representative is hereby irrevocably appointed as the adoption representative, agent, proxy, and attorney in fact (coupled with an interest) for all the equityholders of the MergerCompany for all purposes under this Agreement including the full power and authority on behalf of all the equityholders of the Company: (i) to consummate the transactions contemplated under this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith; (ii) to negotiate claims and disputes arising under, or relating to, this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (including, for the avoidance of doubt, the adjustment of Closing Cash Proceeds contemplated by virtue Section 3.03); (iii) to receive and disburse to, or cause to be received or disbursed to, any equityholder of the execution Company any funds received on behalf of such equityholder under this Agreement and/or acceptance (including, for the avoidance of doubt, any portion of the Merger Consideration) or otherwise; (iv) to withhold any amounts received on behalf of any benefits thereof, including any consideration payable equityholder of the Company pursuant to this AgreementAgreement (including, each for the avoidance of doubt, any portion of the Securityholders irrevocably nominateMerger 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, constitute 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 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 appoint compromise, on behalf of the RepresentativeUnitholder or any Optionholder, any dispute that may arise under, and exercise or refrain from exercising any remedies available under, this Agreement or any other Transaction 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; (vi) to execute and deliver any amendment or waiver to this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of any 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, as ; and (viii) to take all other actions to be taken by or on behalf of any equityholder of the true and lawful agent and attorney in fact of each Securityholder, for all purposes Company in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representativeother agreements, instruments, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments documents contemplated by, hereby or deemed advisable executed in connection with, the Ancillary Agreementsherewith. Any Such agency and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is proxy are coupled with an interest, is granted in consideration are therefore irrevocable without the consent of the mutual covenants and agreements made herein, shall be irrevocable Representative and shall not be terminated by any act survive the death, incapacity, bankruptcy, dissolution or liquidation of any one or more Securityholders, or by operation each equityholder of applicable law, whether by death or other event.
(b) the Company. All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon each equityholder of the SecurityholdersCompany, and no Securityholder 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.
(b) The Representative and its Non-Recourse Parties shall be indemnified, held harmless and reimbursed by each equityholder of the Company severally (based on each equityholder of the Company’s respective Equityholder Allocation Percentage), and not jointly, against all costs, expenses (including reasonable attorneys’ fees), judgments, fines and 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 (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) Each Securityholder agrees that: (i) Kardigan and Neither the Representative nor any of its Affiliates Non-Recourse Parties shall be able incur any liability to rely conclusively on any equityholder of the instructions and decisions Company by virtue of the failure or refusal of the Representative as or any of its Non-Recourse Parties for any reason to consummate the transactions contemplated hereby or relating to the determination 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 Merger Consideration and the determinationCompany, dispute and facilitating the disbursement regardless of the Milestone Payments pursuant to this Agreement legal theory under which such liability or any other actions required obligation may be sought to be taken by 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 under the Ancillary Agreements, and no Securityholder shall have pays or causes to be paid any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or amounts in connection with the Ancillary Agreements, including the determination any obligation or liability of an equityholder of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have Company in connection with the transactions contemplated hereby; 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 (v) and, if not so reimbursed from the provisions of this Section 1.4 Representative Holdback Amount, the Representative shall be binding upon indemnified, held harmless and reimbursed by each equityholder of the executors, heirs, legal representatives and successors Company severally (based on the Equityholder Allocation Percentage of each Securityholdersuch equityholder of the Company), and any references in this Agreement to a Securityholder shall mean and include the successors to not jointly, for such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconductamount(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 liable for entitled to receive any action or omission pursuant payment, and no payment shall be made to the advice of counsel. The Securityholders will indemnifyOptionholders, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement 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 its rights under this Agreement or any other agreement entered into in connection with doubt, amounts that, if paid prior to the transactions contemplated by this Agreementdate which is five (5) years after the Closing Date, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to would have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss paid to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this AgreementOptionholders).
(e) The Notwithstanding anything to the contrary set forth herein, the Representative may resign at and its Affiliates shall not be liable to any time upon 30 days’ written notice, and may be removed equityholder of the Company for any reason action taken or no reason not taken by approval from and by written consent of a majority the Representative or for any act or omission taken or not taken in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately reliance upon the removal of Representative. Notice of such vote actions taken or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇not taken or decisions, such appointment to be effective upon the later of the date indicated in such consent communications or writings made, given or executed by Parent or Merger Sub or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described hereinSurviving Company.
(f) Pursuant All references to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf “Representative” herein mean such Person in its capacity as representative of the Securityholdersequityholders of the Company and not, for the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”)avoidance of doubt, which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had in any such interest other capacity, as the Unitholder or earnings. The Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closingotherwise.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Cognizant Technology Solutions Corp)
Representative. (a) By Each Seller hereby (and each other Seller Party pursuant to the adoption Required Documentation shall thereby) appoints the Representative for and on behalf of the Merger, Seller Parties to give and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute receive notices and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes communications in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in transactions contemplated hereby, to authorize and agree to adjustments to the discretion Buyer Shares, the Cash Consideration, the Option Consideration, the Warrant Shares, the Earnout Shares and the Earnout Funds under Article 1 and other applicable provisions of this Agreement, to authorize distribution of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection withEscrow Shares, the Ancillary Agreements. Any Escrow Funds, the Adjustment Shares and the Adjustment Funds, to take all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services Seller Parties pursuant to this Agreement and any related agreements except Ancillary Agreement to which any Seller Party is a party, and to take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing. More specifically, the Representative shall have the authority to make all decisions and determinations and to take all actions (including giving Consents or agreeing to any amendments to this Agreement or any Ancillary Agreement to which it is a party or to the extent resulting termination hereof or thereof) required or permitted hereunder on behalf of each such Seller (or such other Seller Party), and any such action, decision or determination so made or taken shall be deemed the action, decision or determination of each such Seller (or such other Seller Party), and any notice, communication, document, certificate or information required (other than any notice required by Law or under the Company’s Organizational Documents) to be given to any Seller Party hereunder or pursuant to any Ancillary Agreement shall be deemed so given if given to the Representative. The Representative shall be authorized to take all actions on behalf of the Seller Parties in connection with any claims made under Articles 6 or 7 of this Agreement, to defend or settle such claims, and to authorize payments in respect of such claims on behalf of the Seller Parties. The Representative may resign at any time upon 20 days prior notice. In the event the Representative has given notice of its intent to resign, the Seller Parties shall promptly (and no later than the effective date of the Representative’s resignation) appoint a successor Representative, in accordance with the following sentence. The Seller Parties may remove or replace the Representative by a vote of holders that own a majority of the Company’s capital stock immediately prior to Closing upon not less than ten (10) Business Days’ prior written notice to Buyer. No bond will be required of the Representative. Notices or communications to or from its the Representative will constitute notice to or from each of the Seller Parties.
(b) The Representative will not be liable for any act done or omitted hereunder as the Representative while acting in good faith and not in a manner constituting gross negligence or willful misconduct. The Representative shall not be liable for , and any action act done or omission omitted pursuant to the advice of counselcounsel will be conclusive evidence of such good faith. The Securityholders Seller Parties will indemnify, defend indemnify the Representative and hold harmless the Representative from and harmless against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the acceptance or administration of the Representative’s enforcement of its rights duties hereunder and under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreementagreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders Seller Parties the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. If not paid directly to the Representative by the Seller Parties, any such Representative Losses may be recovered by the Representative from (i) the funds amounts in the Expense Fund Escrow Funds at such time as remaining amounts would otherwise be distributable to the Seller Parties, and (ii) from any other funds that become payable to the Securityholders under this Agreement Earnout Funds at such time as any such amounts would otherwise be distributable to the SecurityholdersSeller Parties; provided, that while this Section allows the Representative may to be paid from the aforementioned sources of fundsEscrow Funds and the Earnout Funds, this it does not relieve the Securityholders Seller Parties 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 Securityholders Seller Parties or otherwise. Notwithstanding anything in The Seller Parties acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Representative or the termination of this Agreement to Agreement. For the contraryavoidance of doubt, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth indemnities contained elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closingunder this Section 9.16(b).
(c) A decision, resignation act, consent or removal instruction of the Representative or the termination will constitute a decision of this Agreement.
(e) The Representative may resign at any time all Seller Parties and will be final, binding and conclusive upon 30 days’ written noticeeach such Seller Party, and Buyer and Merger Sub may be removed rely upon any such decision, act, consent or instruction of the Representative as being the decision, act, consent or instruction of each such Seller Party. Buyer Indemnitees are hereby relieved from any Adverse Consequences to any Person for any reason or no reason acts done by approval from and by written consent of a majority such Buyer Indemnitees in interest of the Stockholders; providedaccordance with such decision, howeveract, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion instruction of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) By the adoption of the Merger, and by virtue of the execution of this Agreement and/or acceptance of Without any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any further act of any one or more SecurityholdersSeller, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating is hereby irrevocably appointed as the agent and attorney-in-fact for each of the Sellers to act as the initial Representative under this Agreement and the other agreements contemplated hereby in accordance with the terms of this Section 12.12. The Representative may resign upon written notice to all Sellers. The Representative may be changed or replaced by vote of a majority of Sellers (computed on the basis of their respective Pro Rata Portions) upon written notice to the determination Representative. The Representative will immediately inform Buyer in the event of the Merger Consideration Representative’s removal or resignation. In the event of the resignation or removal of the Representative, a successor Representative reasonably satisfactory to Buyer shall thereafter be appointed by an instrument in writing signed by Buyer and such successor Representative.
(b) The Representative is hereby authorized and empowered to act for, and on behalf of, any and all of the Sellers (with full power of substitution in the premises) in connection with such matters as are reasonably related to the transactions contemplated in this Agreement and the determination, dispute and facilitating other agreements contemplated hereby including: (i) to receive all payments owing to the disbursement of the Milestone Payments pursuant to Sellers under this Agreement, (ii) to terminate, amend, waive any provision of, or abandon, this Agreement or the other agreements contemplated hereby, (iii) to act as the representative of the Sellers to review and authorize all claims and disputes or question the accuracy thereof, (iv) to negotiate and compromise on their behalf with Buyer any claims asserted hereunder and to authorize payments to be made with respect thereto, (v) to take such further actions as are authorized in this Agreement and the other agreements contemplated hereby, and (vi) in general, do all things and perform all acts, including executing and delivering all agreements (including the Escrow Agreement and the other agreements contemplated in this Agreement), certificates, receipts, consents, elections, instructions and other documents contemplated by, or deemed by the Representative to be necessary or desirable in connection with, this Agreement, the other agreements contemplated hereby and the transactions contemplated herein or therein. Buyer shall be binding upon entitled to rely on such appointment and to treat the SecurityholdersRepresentative as the duly appointed attorney-in-fact of each Seller. Notices given to the Representative in accordance with the provisions of this Agreement shall constitute notice to the Sellers for all purposes under this Agreement. In all matters relating to this Section, the Representative will be the only party entitled to assert the rights of Sellers. The Representative will have no power or authority to bind Buyer, and no Securityholder shall Buyer will not have any liability to any person for any act or omission by the right to object, dissent, protest or otherwise contest the sameRepresentative.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions The appointment of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and is an agency coupled with an interest and is irrevocable and any action taken by the Representative pursuant to the authority granted in this Section 12.12 shall be enforceable effective and absolutely binding on each Seller notwithstanding any rights contrary action of or remedies that direction from such Seller. The death or incapacity, or dissolution or other termination of existence, of any Securityholder may have Seller shall not terminate the authority and agency of the Representative. Buyer and any other party to any document contemplated by this Agreement in connection dealing with the transactions contemplated hereby; Representative may conclusively and absolutely rely, without inquiry, upon any act, statement, action, representation, or decision of the Representative as being the binding acts of all Sellers or any of them, notwithstanding any communication from any Seller to the contrary (v) other than communication regarding the provisions resignation or removal of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether Representative pursuant to testamentary disposition, the laws of descent and distribution or otherwisethis Section).
(d) The Representative will incur no liability shall not be liable to any Seller or any other Person (other than Buyer) with respect to any action taken or omitted to be taken by the Representative in its role as Representative under or in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting Agreement, unless such action or omission results from its or arises out of willful misconduct or gross negligence or willful misconduct. The on the part of the Representative, and the Representative shall not be liable for to any action or omission pursuant to Seller in the advice event that, in the exercise of counsel. The Securityholders will indemnifyits reasonable judgment, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, believes there will not be adequate resources available to cover potential costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or to contest a claim made by Buyer. Sellers shall be responsible to Buyer for any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered breach by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may shall be removed indemnified from the Sellers for any reason and all expenses, charges and liabilities, including reasonable attorneys’ fees, incurred by the Representative in the performance or no reason by approval from and by written consent discharge of a majority in interest of its duties pursuant to this Section 12.12 (the Stockholders; provided“Representative Expenses”). In addition, however, in no event shall the Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on reimbursement from the decisions and actions of Representative Expense Amount for the prior Representative as described hereinExpenses.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable practical following the completion later of (i) the date that is twenty-four (24) months after the Closing Date and (ii) the final resolution of all indemnification claims made under this Agreement that are outstanding as of the Representative’s responsibilitiesdate that is twenty-four (24) months after the Closing Date, the Representative will deliver any remaining balance shall pay or cause to be paid the unused portion of the Representative Expense Fund to Kardigan for further distribution Amount (if any) to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside Sellers by the Securityholders at the time wire transfer of Closingimmediately available funds.
Appears in 1 contract
Representative. (a) By Each THL Entities hereby designates and appoints (and each Permitted Transferee of each such THL Entities is hereby deemed to have so designated and appointed) each of Anthony J. DiNovi, Scott Spe▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ld▇▇, ▇▇ ▇▇▇ ▇▇▇orney-▇▇-▇▇▇▇ ▇▇th full power of substitution for each of them (the adoption "THL Entities' Representative"), to serve as the representative of the Mergereach such person to perform all such acts as are required, and authorized or contemplated by virtue of the execution of this Agreement and/or acceptance to be performed by such person and hereby acknowledges that the THL Entities' Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by each such person. Each such person further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the death or incapacity of such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the other parties hereto to disregard any benefits thereof, including any consideration payable notice or other action taken by such person pursuant to this Agreement, each Agreement except for the THL Entities' Representative. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the THL Entities' Representative and are and will be entitled and authorized to give notices only to the THL Entities' Representative for any notice contemplated by this Agreement to be given to any such person. A successor to the THL Entities' Representative may be chosen by a majority in interest of the Securityholders irrevocably nominateTHL Entities' Shareholders, constitute and appoint provided that notice thereof is given by the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according new THL Entities' Representative to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, Company and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other eventeach Non-THL Shareholder.
(b) All decisions Each DLJ Entities hereby designates and actions appoints (and each Permitted Transferee of each such DLJ Entities' is hereby deemed to have so designated and appointed) DLJ Merchant Banking II, Inc., as his attorney-in-fact with full power of substitution for each of them (the "DLJ Entities' Representative"), to serve as the representative of each such person to perform all such acts (other than voting of shares of Common Stock) as are required, authorized or contemplated by this Agreement to be performed by such person and hereby acknowledges that the DLJ Entities' Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by each such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the other parties hereto to disregard any notice or other action taken by such person pursuant to this Agreement except for the DLJ Entities' Representative. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the Representative, including any agreement between the DLJ Entities' Representative and are and will be entitled and authorized to give notices only to the DLJ Entities' Representative for any notice contemplated by this Agreement to be given to any such person. A successor to the DLJ Entities' Representative may be chosen by a majority in interest of the DLJ Entities' Shareholders, provided that notice thereof is given by the new DLJ Entities' Representative to the Company and to each other DLJ Entity Shareholder.
(c) Each Merrill Lynch Entities hereb▇ ▇▇▇▇▇n▇▇▇▇ and appoints (and each Permitted Transferee of each such Merrill Lynch Entities is he▇▇▇▇ ▇▇e▇▇▇ ▇o have so designated and appointed) KECALP Inc., as his attorney-in-fact with full power of substitution for each of them (the "Merrill Lynch Entities Repre▇▇▇▇▇▇▇▇ relating v▇"), to serve as the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors representative of each Securityholdersuch person to perform all such acts as are required, and any references in authorized or contemplated by this Agreement to a Securityholder shall mean be performed by such person and include hereby acknowledges that the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to Merrill Lynch Entities Repre▇▇▇▇▇▇▇v▇ ▇▇▇ll be the only person authorized to take any action so required, authorized or contemplated by this Agreement by each such person. Each such person further acknowledges that the foregoing appointment and designation shall be deemed to be effective upon coupled with an interest and shall survive the later death or incapacity of such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the date indicated in other parties hereby to disregard any notice or other action taken by such consent or person pursuant to this Agreement except for the date such notice is received by Merrill Lynch Entities Repre▇▇▇▇▇▇▇v▇; provided, that until such . ▇he other parties hereto are and will be entitled to rely on any action so taken or any notice is received, given by the Merrill Lynch Entities Repre▇▇▇▇▇▇▇v▇ ▇▇▇ are and will be entitled and authorized to give notices only to the Merrill Lynch Entities Repre▇▇▇▇▇▇▇v▇ ▇▇▇ any notice contemplated by this Agreement to be given to any such person. A successor to the Merrill Lynch Entities Repre▇▇▇▇▇▇▇v▇ ▇▇▇ be chosen by a majority in interest of the Merrill Lynch Entities' Shar▇▇▇▇▇▇▇s, ▇▇▇vided that notice thereof is given by the new Merrill Lynch Entities Repre▇▇▇▇▇▇▇v▇ ▇▇ the Company and to each other Merrill Lynch Entity Shareho▇▇▇▇.
(d) Each Management Shareholder hereby designates and appoints (and each Permitted Transferee of each such Management Shareholder is hereby deemed to have so designated and appointed) Paul M. Meister, as his atto▇▇▇▇-▇▇-▇▇▇▇ ▇▇th full power of substitution for each of them (the "Management Representative"), to serve as the representative of each such person to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such person and hereby acknowledges that the Management Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by each such person. Each such person further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the death or incapacity of such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the other parties hereby to disregard any notice or other action taken by such person pursuant to this Agreement except for the Management Representative. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the decisions Management Representative and actions are and will be entitled and authorized to give notices only to the Management Representative for any notice contemplated by this Agreement to be given to any such person. A successor to the Management Representative may be chosen by a majority in interest of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c)Management Shareholders, at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated provided that notice thereof is given by the new Management Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds Company and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closingeach other Management Shareholder.
Appears in 1 contract
Sources: Investors' Agreement (Donaldson Lufkin & Jenrette Inc /Ny/)
Representative. (a) By At the adoption of the MergerEffective Time, and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements▇▇▇▇ ▇. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to III will be constituted and appointed as the determination Representative, and the Representative hereby accepts such appointment. Each Indemnifying Securityholder, by virtue of its adoption of this Agreement and approval of the Merger Consideration Merger, will be deemed to have appointed and constituted the determination, dispute Representative as their agent and facilitating true and lawful attorney-in-fact with the disbursement powers and authority as set forth in this Agreement. The Representative will be the exclusive agent for and on behalf of the Milestone Payments pursuant Indemnifying Securityholders to (1) enter into the Escrow Agreement; (2) 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 (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); (3) authorize deliveries to Parent of cash or other property from the Escrow Fund and legally bind each Indemnifying Securityholder thereto; (4) object to such claims in accordance with Section 7.6; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) 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; (7) subject to Section 6.1, execute for and on behalf of each Indemnifying 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), other than any Excluded Agreement; (8) makes adjustments to the Escrow Release Percentages, the Redemption Consideration Percentages or 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 Securityholder or by operation of Law, whether by the death or incapacity of any Indemnifying 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 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 Person serving as the Representative may be replaced from time to time, by the holders of a majority in interest of the Escrow Funding Percentages 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 Representative may be filled by the holders of a majority in interest of the Escrow Funding Percentages. If the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnifying 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. 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 Securityholders at their addresses last known to Parent, which will be the address set forth in the Spreadsheet unless the Representative provides notice to Parent of a different address in the manner described in Section 8.3.
(c) Each The Representative will not be liable to any Indemnifying Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions act done or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or omitted in connection with the Ancillary Agreements, including Representative’s services under this Agreement or the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have Escrow Agreement while acting in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, good faith and any references act done or omitted in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection accordance with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counselcounsel or other expert will be conclusive evidence of such good faith. The Indemnifying Securityholders will indemnifyratably according to their Indemnification Percentages, defend but not jointly and hold harmless severally, indemnify the Representative and its Affiliates and their respective partners, members, officers, managers, directors, employees, agents and representatives (the “Representative Group”) from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the reasonable fees and expenses of counsel and experts and their staffs and all reasonable expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement performance of its rights under this Agreement or any other agreement entered into in connection with and the transactions contemplated by this Escrow Agreement, in each case as such Representative Loss is suffered or incurred; provided, 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 bad faith, fraud, gross negligence or willful misconduct bad faith of the Representative, the Representative will promptly reimburse the Indemnifying Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconductbad 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 Expense Fund and Representative Fund, (ii) any other funds that become payable to the Securityholders under this Agreement amounts in the Adjustment Fund at such time as such 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; provided. Notwithstanding the foregoing, that while this section allows the Representative may to be paid from the aforementioned sources of fundsRepresentative 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. Notwithstanding anything in this Agreement to The Indemnifying Securityholders acknowledge and agree that the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(ed) 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 may resign at any time upon 30 days’ written noticewith reasonable access to, and may be removed for any reason or no reason by approval from the right to inspect and by written consent of a majority in interest copy, all such information about the Surviving Entity and its Subsidiaries and the reasonable assistance of the StockholdersCompany’s former officers and employees for purposes of performing its duties and exercising its rights hereunder; provided that the Representative will treat confidentially and not use or disclose the terms of this Agreement or any nonpublic information from or about Parent, Surviving Entity, or any Indemnified Person to anyone (except to the Indemnifying Securityholders or the Representative’s employees, attorneys, accountants, financial advisors or authorized representatives on a need to know basis, in each case who agree to treat such information confidentially), provided, however, in no event shall Representative that neither Parent nor the Surviving Entity will be removed without obligated to provide such access or information if doing so would violate applicable Law or any Contract to which Parent, the Stockholders having first appointed Surviving Entity or any of their Affiliates is a new Representative who shall assume 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 duties immediately upon as common interest agreements to preserve such privilege) or any rights of Parent or any Indemnified Person under the removal of Representative. Notice of such vote work-product doctrine or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent expose Parent or the date such notice is received by ▇▇▇▇▇▇▇▇; providedSurviving Entity to risk of liability for disclosure of sensitive or personally identifiable information. The Representative acknowledges that, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled as a holder of Company Units immediately prior to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the SecurityholdersEffective Time, the Expense Fund Amount Representative is subject to an account designated by the Representative confidentiality requirements of clause (the “Expense Fund”)iii) of Section 4.1, which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign apply to the Representative any ownership right that they may otherwise have had in any such interest or earningscapacity as well. The Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilitiesIf requested by Parent, the Representative will deliver any remaining balance enter into a separate confidentiality agreement in substantially the form of the Expense Fund Confidentiality Agreement referred to Kardigan for further distribution in Section 4.1, as modified thereby and otherwise as mutually agreeable, prior to being provided access to such information.
(e) 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 Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time terms of Closingthis Agreement.
Appears in 1 contract
Representative. (a) By the adoption of the Merger, and by virtue of the execution approval and adoption of this Agreement and/or acceptance Agreement, the Transaction Merger and the transactions contemplated hereby by the requisite consent of any benefits thereof, including any consideration payable pursuant to this Agreementthe holders of shares of Company Common Stock, each of the Securityholders Stockholders shall be deemed to have irrevocably nominateauthorized, constitute directed and appoint appointed Wayzata Opportunities Fund II, L.P. (the “Representative”) as its agent, proxy, attorney-in-fact and representative for such Stockholder under this Agreement and all of the other Transaction Documents to take such action on behalf of such Stockholder, and to exercise such rights, powers and authority, as are authorized, delegated and granted to the Representative pursuant to this Agreement or any of the Closingother Transaction Documents, or as the true and lawful agent and attorney in fact of each SecurityholderRepresentative shall deem necessary, for all purposes appropriate, advisable or desirable in connection with any of the transactions contemplated by this AgreementAgreement or any of the other Transaction Documents, including, without limitation, the power to (i) execute and any related agreements, with full power in its, his or her name deliver all amendments and on its, his or her behalf waivers to act according to the terms of this Agreement and the Ancillary Agreements other Transaction Documents that the Representative deems necessary or appropriate, (ii) execute and deliver all other amendments and waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the discretion consummation of the Representativetransactions contemplated by this Agreement, (iii) receive funds, make payments of funds, and give receipts for funds, (iv) make disputes regarding, and to do all things and agree to, adjustments to perform all acts, including (1) amending the Ancillary AgreementsMerger Consideration, (2v) waiving rightsengage and retain advisors and consultants with respect to the transactions contemplated by this Agreement and the other Transaction Documents or any disputes or other controversies arising out of any thereof or the subject matter thereof, (3vi) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative act on behalf of the Securityholders as provided hereunder shall be binding on all SecurityholdersStockholders and/or the Optionholders in any litigation, arbitration or other proceeding involving this Agreement or any other Transaction Document (including any proceeding to enforce this Agreement), (vii) act for the Stockholders and/or the Optionholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise or settle any indemnity claim and to transact matters of litigation, (viii) deal with the Administrative Expense Account in accordance with Section 1.15, (ix) distribute any portion of the Administrative Expense Amount to the Exchange Agent (for further distribution to the Stockholders (other than the Specified Stockholders)), to the Specified Stockholders, and Shareholder to the Surviving Company (for further distribution to the Participating Optionholders and the Bonus Payment Recipients), (x) determine whether the conditions to Closing set forth in Article VI have been satisfied and supervise the Closing, including the right to waive any condition, as determined by the Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interestin its sole discretion, is granted in consideration (xi) terminate this Agreement pursuant to Article VIII, (xii) elect, on behalf of the mutual covenants Stockholders and/or Participating Optionholders, in connection with any distribution of the Indemnity Escrow Fund from the Indemnity Escrow Account to Holdco or any of the other Parent Indemnified Parties in accordance with the terms of the Indemnity Escrow Agreement, to substitute any amount of Indemnity Escrow Shares to be so distributed by the Escrow Agent with cash (any such cash, “Substituted Cash”), including cash from the Administrative Expense Account and agreements made herein(xiii) do or refrain from doing any further act or deed on behalf of the Stockholders and/or the Optionholders that the Representative deems necessary, shall be irrevocable appropriate, advisable or desirable in its sole discretion relating to the subject matter of this Agreement or any of the other Transaction Documents as fully and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other eventcompletely as the Stockholders and/or the Optionholders could do if personally present.
(b) If the Person serving as the Representative ceases to serve in such capacity, for any reason, the Majority Stockholders shall promptly select a replacement Representative. Such Person or replacement is intended to be the “Representative” referred to herein and all other Transaction Documents. All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon all of the SecurityholdersStockholders and/or the Optionholders, and no Securityholder Stockholder and/or the Optionholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan . Parent, Holdco and its Affiliates Merger Sub shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination and payment of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required or permitted to be taken by the Representative under the Ancillary Agreementshereunder, and no Securityholder party hereunder or any Stockholder and/or the Optionholder shall have any cause of action against Kardigan Parent, Holdco or its Affiliates Merger Sub for any action taken by such Person Parent, Holdco or Merger Sub in reliance upon the written instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the . The provisions of this Section 1.4 1.12 are independent and severable, are irrevocable and coupled with an interest sufficient in law to support an irrevocable power, shall survive the death, incompetency, disability, incapacity, merger, consolidation, liquidation, bankruptcy, insolvency or dissolution of any Stockholder and/or the Optionholder, and shall be enforceable notwithstanding any rights or remedies that any Securityholder Stockholder and/or the Optionholder may have in connection with the transactions contemplated hereby; and (v) the by this Agreement. The provisions of this Section 1.4 1.12 shall be binding upon the executors, heirs, legal representatives representatives, successors and successors assigns of each SecurityholderStockholder and each Optionholder, and any references in this Agreement to a Securityholder Stockholder or Optionholder shall mean and include the successors to such Securityholder’s the rights of the Stockholders and Optionholders (as applicable) hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(dc) The Representative will incur no liability in connection with its services pursuant By virtue of the approval and adoption of this Agreement, the Transaction Merger and the transactions contemplated hereby by the requisite consent of the holders of shares of Company Common Stock, each of the Stockholders shall be deemed to this Agreement and any related agreements except to have agreed that (i) the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable to the Stockholders or the Optionholders for any action actions taken or omission omitted to be taken by the Representative under or in connection with this Agreement or any of the other Transaction Documents, or any of the transactions contemplated hereby or thereby (including, without limitation, any liability for losses resulting from investment of the Administrative Expense Amount or otherwise dealing with the Administrative Expense Amount); (ii) the Representative will be entitled to reimbursement from the Sellers for its reasonable out-of-pocket fees and expenses in the performance of its obligations as Representative (it being understood and agreed that the Representative will be entitled to receive such reimbursement (without limiting the right of the Representative to pursue any Seller individually for any such reimbursement) (x) directly from the Administrative Expense Account (to the extent of any funds therein) at any time the Representative shall so elect and/or (y) from any Escrow Account at any time when any portion of the Escrow Amount is to be distributed to the Sellers, and the Representative is hereby authorized and empowered to apply any portion of the Administrative Expense Amount and/or to direct the Escrow Agent to release any applicable portion of the Escrow Amount to satisfy such reimbursement obligations; provided, however, that the obligation of the Sellers to reimburse the Representative shall not be altered, impaired, reduced or otherwise diminished if the Administrative Expense Amount and/or the Escrow Amount so distributed is insufficient to reimburse the Representative in full or if the Representative elects not to receive such reimbursement from the Administrative Expense Amount and/or the Escrow Amount); (iii) the Representative shall not owe any fiduciary duty or have any fiduciary responsibility or other obligation or duty of trust to any of the Stockholders, any of the Optionholders, the Company, Parent, Holdco, Merger Sub or any of their respective Affiliates pursuant to this Agreement or any of the advice of counsel. The Securityholders will indemnifyother Transaction Documents; and (iv) it shall, defend jointly and severally with each other Seller, defend, indemnify and hold harmless the Representative and its Affiliates (which shall not include the Company or any of its Subsidiaries for purposes of this Section 1.12(c)) and each of their respective officers, directors, managers, employees, stockholders, members, partners, employers, advisors, attorneys, owners, agents and representatives from and against any all expenses (including fees and all expenses of counsel), losses, claims, fines, liabilities, damages, claimsjudgments or amounts paid in settlement in respect of any threatened, penaltiesasserted, finespending or completed claim, forfeituresaction, actionssuit or proceeding, feeswhether criminal, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document locationcivil, duplication and shipment) (collectivelyadministrative, “Representative Losses”) regulatory or investigative, based on, arising out of or relating to the fact that such Person is or was a Representative hereunder (or is or was an Affiliate of the Representative, or an officer, director, manager, employee, stockholder, member, partner, employer, advisor, attorney, owner, agent or representative of the Representative or any such Affiliate) or arising out of acts or omissions of such Person in such capacity (including in respect of acts or omissions in connection with the Representative’s enforcement of its rights under this Agreement or any of the other agreement entered into in connection with Transaction Documents, and the transactions contemplated by this Agreementhereby or thereby) except for, in each case as such Representative Loss is suffered or incurred; providedany case, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, Representative as determined by a final and non-appealable judgment of a court of competent jurisdiction (it being understood and agreed that the Representative will reimburse be entitled to receive such indemnities (without limiting the Securityholders right of the amount of Representative to pursue any Seller individually for any such indemnified Representative Loss indemnities) (A) directly from the Administrative Expense Account (to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by of any funds therein) at any time the Representative shall so elect and/or (B) from (i) any Escrow Account at any time when any portion of the funds in the Expense Fund and (ii) any other funds that become payable Escrow Amount is to be distributed to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; providedSellers, that while and the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation is hereby authorized and empowered to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf apply any portion of the Securityholders or otherwise. Notwithstanding anything in this Agreement Administrative Expense Amount and/or to direct the contrary, Escrow Agent to release any restrictions or limitations on liability or indemnification obligations of, or provisions limiting applicable portion of the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided Escrow Amount to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholdersto satisfy such indemnification obligations); provided, however, in no event shall Representative be removed without that the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy obligation of the written consent appointing such new Sellers to indemnify the Representative shall not be sent altered, impaired, reduced or otherwise diminished if the Administrative Expense Amount and/or the Escrow Amount so distributed is insufficient to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by indemnify the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest in full or earnings on the Expense Fund and irrevocably transfer and assign to if the Representative elects not to receive such indemnification from the Administrative Expense Account and/or any ownership right that they may otherwise have had in any such interest or earnings. The Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”Escrow Account). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) By In order to efficiently administer certain matters contemplated hereby following the Closing, including any actions that the Representative may, in its sole discretion, determine to be necessary, desirable or appropriate in connection with the matters set forth in this Agreement, the Share Recipients, by the adoption of the Merger, and by virtue of the execution of this Agreement and/or and acceptance of any benefits thereof, including any consideration payable pursuant to under this Agreement, each of the Securityholders irrevocably nominate, constitute hereby designate and appoint the Representative, as of the Closing, empower Shareholder Representative Services LLC as the true and lawful agent and attorney in fact of each Securityholder, Representative for all purposes in connection with this Agreement and the Lock-Up Agreements or any agreements ancillary hereto or thereto.
(b) In the event the Representative dies, becomes unable to perform his, her or its responsibilities hereunder or resigns from such position, the Share Recipients, who together are entitled to a majority of the Total Consideration at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) By their adoption of this Agreement and acceptance of consideration under this Agreement, the Share Recipients hereby agree, in addition to the foregoing, that:
(i) the Representative shall constitute the true and any related agreementslawful representative, agent and attorney-in-fact of each Share Recipients with full power in itshis, his her or her its name and on itshis, his her or her its behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and general to do all things and to perform all actsacts including, including (1) amending the Ancillary Agreementswithout limitation, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all any agreements, certificates, receipts, instructions and other instructions, notices or instruments contemplated by, by or deemed advisable in connection with, with this Agreement. The Representative hereby accepts such appointment;
(ii) the Ancillary Agreements. Any Representative shall take any and all such actions taken by the Representative that it believes are necessary or appropriate under this Agreement for and on behalf of the Securityholders Share Recipients;
(iii) the Representative shall have full authority to (A) execute, deliver, acknowledge, certify and file on behalf of the Share Recipients (in the name of any or all of the Share Recipients or otherwise) any and all documents that the Representative may, in its sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as provided hereunder the Representative may, in its sole discretion, determine to be appropriate, (B) give and receive notices and other communications relating to this Agreement and the transactions contemplated hereby and thereby (except to the extent that this Agreement contemplates that such notice or communication shall be binding on given or received by the Share Recipients individually), (C) take or refrain from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all Securityholdersmatters and disputes arising out of or related to this Agreement and the transactions contemplated hereby and thereby and (D) engage attorneys, accountants, financial and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney other advisors, paying agents and all authority hereby conferred is coupled with an interest, is granted other persons necessary or appropriate in consideration the judgment of the mutual covenants and agreements made herein, Representative for the accomplishment of the foregoing;
(iv) Parent shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able entitled to rely conclusively on the instructions and decisions of given or made by the Representative as to the determination any of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to matters described in this Agreement or any other actions required to be taken by the Representative under the Ancillary AgreementsSection 3.6, and no Securityholder party shall have any cause of action against Kardigan or its Affiliates Parent for any action taken by such Person Parent in reliance upon the any such instructions or decisions of the Representative; decisions;
(ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iiiv) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders each of the Share Recipients and no Securityholder Share Recipient shall have any cause of action against the Representative; Representative for any action taken, decision made or instruction given by the Representative in connection with this Agreement or the agreements, except as otherwise provided in this Section 3.6;
(ivvi) the provisions of this Section 1.4 3.6 are independent and severable, are irrevocable and coupled with an interest interest, and shall be enforceable notwithstanding any rights or remedies that any Securityholder Share Recipient may have in connection with the transactions contemplated hereby; and by this Agreement;
(vvii) the provisions of this Section 1.4 3.6 shall be binding upon the executors, heirs, legal representatives successors and successors assigns of each Securityholder, Share Recipient and any references in this Agreement to a Securityholder any Share Recipient (or them collectively) shall mean and include the successors to such Securityholder’s the Share Recipients’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and
(viii) the Representative shall have no duties or obligations hereunder, except those expressly set forth herein, and such duties and obligations shall be determined solely by the express provisions of this Agreement.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its bad faith, gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnifyShare Recipients shall, defend severally, and hold harmless not jointly, indemnify the Representative from and against any reasonable, documented, and all out-of-pocket losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs liabilities and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or and any other agreement entered into in connection with the transactions contemplated by this Agreementrelated agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders Share Recipients the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders Share Recipients under this Agreement at such time as such amounts would otherwise be distributable to the SecurityholdersShare Recipients; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders Share Recipients from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders Share Recipients or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders Share Recipients set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative. Neither the Company nor Parent shall have any liability to the Representative or in connection with the termination provision of such services under this AgreementSection 3.6.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason On or no reason by approval from and by written consent of a majority in interest of prior to the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the SecurityholdersClosing Date, the Expense Fund Amount to an account designated by the Representative Company will wire $[***] (the “Expense Fund”)) to the Representative, which will be used for any expenses incurred by the Representative. The Securityholders Share Recipients will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver shall cause (at the Share Recipients’ expense) the disbursement of any remaining balance of the Expense Fund to Kardigan the Share Recipients based on such Share Recipients pro rata portions as set forth in Schedule 2 (Pre-Closing Statement), except in the case of payments to employees or former employees of the Company for further distribution which employment tax withholding is required, which such amounts shall be delivered to Parent or the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”)Surviving Corporation and paid through Parent’s or Surviving Corporation’s payroll processing service or system. For tax purposes, the Expense Fund will shall be treated as having been received and voluntarily set aside by the Securityholders Share Recipients at the time of Closing. The parties agree that the Representative is not responsible for any tax reporting or withholding in connection with the distribution of the Expense Fund.
Appears in 1 contract
Sources: Merger Agreement (Athenex, Inc.)
Representative. (a) By Each Shareholder irrevocably appoints Min Juang (the adoption “Representative”) with power of the Mergerdesignation and assignment as its true and lawful attorney-in-fact and agent with full power of substitution, to act solely and exclusively on behalf of, and by virtue in the name of, such Shareholder with the full power, without the consent of such Shareholder, to exercise as the execution Representative in its sole discretion deems appropriate, the powers which such Shareholder could exercise under the provisions of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant and to this Agreement, each take all actions necessary or appropriate in the judgment of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes Representative in connection with this Agreement, which shall include the power and authority to amend, modify, waive or provide consent with respect to, any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms provision of this Agreement and to execute, deliver and accept such waivers and consents and any and all notices, documents, certificates or other papers to be delivered in connection with this Agreement and the Ancillary Agreements in consummation of the discretion of transactions contemplated hereby as the Representative, in its sole discretion, may deem necessary or desirable; provided that the Representative may not amend this Agreement without the consent of such Shareholder if the consideration to be received by such Shareholder pursuant to Article II hereof will be reduced by the proposed amendment or if such Shareholder will be disproportionately and adversely affected by the proposed amendment relative to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement other Shareholders of the Milestone Payments and (5) executing and delivering all agreementssame class. The Representative shall have the power to waive, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholderseach Shareholder, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or attorney-client privileges in connection with communications between such Shareholder and counsel to the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have Acquired Companies in connection with the transactions contemplated hereby; hereunder. The Buyer and (v) the provisions Buyer Indemnitees, if applicable, will be entitled to rely exclusively upon any notices and other acts of this Section 1.4 the Representative as being legally binding acts of each Shareholder individually and the Shareholders collectively. The appointment and power of attorney granted by each Shareholder to the Representative shall be binding upon deemed coupled with an interest and all authority conferred hereby shall be irrevocable whether by death or incapacity of any such Shareholder or the executors, heirs, legal representatives occurrence of any other event or events.
(b) Each Shareholder acknowledges and successors agrees that the Representative will not be liable to such Shareholder for any act done or omitted hereunder as the Representative while acting in good faith and in the exercise of each Securityholderreasonable judgment, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution act done or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission omitted pursuant to the advice of counselcounsel will be conclusive evidence of such good faith. The Securityholders Shareholders will indemnify, defend jointly and severally indemnify the Representative and hold it harmless against any Losses incurred without gross negligence or bad faith on the part of the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement acceptance or administration of its rights duties under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(ec) The Shareholders will reimburse the Representative may resign at for their pro rata share, of any time upon 30 days’ written noticeout-of-pocket, independent, third-party fees and may be removed for any reason or no reason by approval from expenses (including fees and by written consent expenses of a majority in interest of the Stockholders; providedcounsel, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions accountants and actions of the prior Representative as described herein.
(fother advisors) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated incurred by the Representative (that arise out of or are in connection with the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest acceptance or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion administration of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closingduties under this Agreement.
Appears in 1 contract
Sources: Share Purchase Agreement (ALPHA & OMEGA SEMICONDUCTOR LTD)
Representative. (a) By Participant hereby consents to the adoption appointment of Fortis Advisors LLC (the Merger, “Representative”) as his or her agent and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful attorney-in-fact with the powers and authority as set forth in the Merger Agreement. The Representative shall be the exclusive agent for and attorney in fact on behalf of each SecurityholderParticipant to (i) execute, for all purposes as Stockholders’ Agent, the Merger Agreement and any agreement or instrument entered into or delivered in connection with the transactions contemplated thereby; (ii) give and receive notices, instructions, and communications permitted or required under the Merger Agreement or any other agreement, document or instrument entered into or executed in connection therewith, for and on behalf of Participant, to or from Acquiror (on behalf of itself or any other Indemnified Person) relating to the Merger Agreement or any of the transactions and other matters contemplated thereby (except to the extent that the Merger Agreement expressly contemplates that any such notice or communication shall be given or received by each Participant individually); (iii) review, negotiate and agree to and authorize deliveries to Acquiror of from the Holdback Fund in satisfaction of claims asserted by Acquiror (on behalf of itself or any other Indemnified Person, including by not objecting to such claims) pursuant to ARTICLE 8 of the Merger Agreement; (iv) object to such claims pursuant to Section 8.5 of the Merger Agreement; (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated hereby by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of Participant or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of the Merger Agreement; (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Converting Holders and Management Plan Participants; (vii) consent or agree to any amendment to the Merger Agreement or to waive any terms and conditions of the Merger Agreement providing rights or benefits to the Participants (other than with respect to the payment of the Merger Consideration) in accordance with the terms thereof and in the manner provided therein; and (viii) take all actions necessary or appropriate in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. The Representative shall be the sole and exclusive means of asserting or addressing any of the above, and Participant shall not 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 Agreementpower of attorney is coupled with an interest and will be irrevocable and will not be terminated by Participant or by operation of law, whether by the death or incapacity of Participant or the occurrence of any other event, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions action taken by the Representative on behalf of the Securityholders will be as provided hereunder shall be binding on all Securityholdersvalid as if such death, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death incapacity or other eventevent had not occurred, regardless of whether or not any Converting Holder or Management Plan Participant or the Representative will have received any notice thereof.
(b) All decisions and actions expenses, if any, reasonably incurred by the RepresentativeRepresentative in connection with the performance of his duties as the Representative will be borne and paid by the Converting Holders and Management Plan Participants, including any agreement between Participant (the “Stockholder Representative Expenses”). If the Agent Expense Fund is exhausted and if not otherwise paid directly to the Representative and ▇▇▇▇▇▇▇▇ relating by the Converting Holders or Management Plan Participants, the Stockholder Representative Expenses may be recovered by the Representative from the Holdback Fund otherwise distributable to the determination Converting Holders and Management Plan Participants (and not distributed or distributable to an Indemnified Person or subject to a pending indemnification claim of an Indemnified Person) after the expiration of the Holdback Period pursuant to the terms of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon at the Securityholderstime of distribution, and no Securityholder shall have such recovery will be made from the right Converting Holders and Management Plan Participants according to object, dissent, protest or otherwise contest the sametheir respective Pro Rata Shares.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall The Person serving as the Representative may be able replaced from time to rely conclusively on time by the instructions and decisions holders of a majority in interest of the Representative as Holdback Fund upon not less than thirty (30) days’ prior written notice to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseAcquiror.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement Converting Holders and any related agreements except to Management Plan Participants shall severally indemnify the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend Stockholders’ Agent Group and hold harmless the Representative from and Stockholders’ Agent Group against any and all losses, liabilities, claims, damages, claims, penalties, fines, forfeitures, actionscosts, fees, costs and expenses (including fees, disbursements and costs of skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement incurred without gross negligence, willful misconduct or bad faith on the fees part of the Stockholders’ Agent Group and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement acceptance or administration of its rights duties under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Merger Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused including all reasonable out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this AgreementStockholders’ Agent.
(e) The Representative may resign at any time upon 30 days’ written noticeAny notice or communication given or received by, and may be removed for any reason decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or no reason by approval from and by written consent of a majority in interest instruction of, the Representative that is within the scope of the Stockholders; providedRepresentative’s authority under Section 8.7(a) of the Merger Agreement shall constitute a notice or communication to or by, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the written consent appointing such new Representative Converting Holders and Management Plan Participants and shall be sent to ▇▇▇▇▇▇▇▇final, binding and conclusive upon each such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇Converting Holder and Management Plan Participant; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ and each Indemnified Person shall be entitled to rely on exclusively upon any 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 Converting Holder and Management Plan Participant. Acquiror and the decisions and actions of the prior Representative as described herein.
(f) Pursuant other Indemnified Persons have been relieved from any Liability to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used any Person for any expenses incurred acts done by the Representative. The Securityholders will not receive any interest them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion instruction of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) By the adoption of the Merger, and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC I hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇designate ▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, ▇ to act as my “Purchaser Representative” as such appointment to be effective upon term is defined in Rule 501 of Regulation D promulgated under the later Securities Act in connection with evaluating the merits and the risks of an investment in the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇Parent Common Stock. I hereby designate ▇▇▇▇▇▇▇ ▇▇▇▇▇ as my “Representative” as such term is used in the Merger Agreement and I recognize that the Representative is appointed, authorized and empowered to be the exclusive proxy, representative, agent and attorney-in-fact of myself and of each of the Company Holders, with full power of substitution and resubstitution (and such power of attorney being deemed to be an irrevocable power coupled with an interest), to undertake all actions and responsibilities as specified in Section 9.6 of the Merger Agreement. All authority conferred or agreed to be conferred in this Company Holder Agreement and all of my obligations hereunder will be binding upon my successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives (collectively, “Successors-in-Interest”) and will not be affected by, and will survive, my death, incapacity or bankruptcy. I acknowledge and agree that Parent, the Surviving Corporation, and any other person may conclusively and absolutely rely, without inquiry, upon any action of the Representative as my action in all matters referred to in the Merger Agreement. I agree that the Representative shall have full power and authority to represent me with respect to all matters arising under the Merger Agreement and such representation shall be entitled to binding upon me, as if expressly confirmed and ratified in writing by me. The Parent and the Surviving Corporation may rely on the decisions and actions of the prior Representative as described hereinmy exclusive agent and shall incur no liability to any party with respect to any action taken or suffered by it in reliance thereon.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Sources: Company Holder Agreement (ExlService Holdings, Inc.)
Representative. (a) By the adoption of the Merger, and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to executing this Agreement, each of the Securityholders Members shall be deemed to have irrevocably nominateconstituted and appointed [INSIGHT ENTITY] (in the capacity described in this Section 7.18 and each successor as provided below, constitute and appoint the “Representative”) as his, as of the Closing, as the true and lawful her or its agent and attorney in fact with full power of each Securityholdersubstitution to act from and after the date hereof and to do any and all things and execute any and all documents on behalf of such Members which may be necessary, for all purposes in connection with convenient or appropriate to facilitate any matters under this Agreement, including but not limited to: (i) execution of the documents and any related agreements, with full power in its, his or her name and on its, his or her behalf certificates required pursuant to act according this Agreement; (ii) except to the terms extent specifically provided in this Agreement receipt and forwarding of notices and communications pursuant to this Agreement; (iv) administration of the provisions of this Agreement; (v) any and all consents, waivers, amendments or modifications deemed by the Representative, in its sole and absolute discretion, to be necessary or appropriate under this Agreement and the Ancillary Agreements execution or delivery of any documents that may be necessary or appropriate in the discretion connection therewith; (vi) amending this Agreement or any of the Representative, and instruments to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating delivered to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments Corporation pursuant to this Agreement; (vii) taking actions Representative is expressly authorized to take pursuant to the other provisions of this Agreement; (viii) negotiating and compromising, shall be binding upon the Securityholderson behalf of such Members, any dispute that may arise under, and no Securityholder shall have the right to objectexercising or refraining from exercising any remedies available under, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required agreement contemplated hereby and executing, on behalf of such Members, any settlement agreement, release or other document with respect to such dispute or remedy; and (ix) engaging attorneys, accountants, agents or consultants on behalf of such Members in connection with this Agreement or any other agreement contemplated hereby and paying any fees related thereto. The Representative may resign upon [[__] days’] written notice to the Corporation. If the Representative is unable or unwilling to so serve, then the Members, as applicable, holding a majority of the common units owned by such Members outstanding on the date hereof, shall elect a new Representative. All reasonable, documented out-of-pocket costs and expenses incurred by the Representative in its capacity as such shall be promptly reimbursed by the Corporation upon invoice and reasonable support therefor by the Representative. To the fullest extent permitted by law, none of the Representative, any of its Affiliates, or any of the Representative’s or Affiliate’s directors, officers, employees or other agents (each a “Covered Person”) shall be liable, responsible or accountable in damages or otherwise to any Member, the LLC or the Corporation for damages arising from any action taken or omitted to be taken by the Representative under or any other Person with respect to the Ancillary AgreementsLLC or the Corporation, except in the case of any action or omission which constitutes, with respect to such Person, willful misconduct or fraud. Each of the Covered Persons may consult with legal counsel, accountants, and no Securityholder shall have other experts selected by it, and any cause of action against Kardigan act or its Affiliates for any action omission suffered or taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (it on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions LLC or the Corporation or in furtherance of the Representative shall be conclusive interests of the LLC or the Corporation in good faith in reliance upon and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled in accordance with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of such counsel, accountants, or other experts shall create a rebuttable presumption of the good faith and due care of such Covered Person with respect to such act or omission; provided that such counsel, accountants, or other experts were selected with reasonable care. The Securityholders will indemnifyEach of the Covered Persons may rely in good faith upon, defend and hold harmless shall have no liability to the Representative LLC, the Corporation or the Members for acting or refraining from acting upon, any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, or other paper or document reasonably believed by it to be genuine and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused signed or presented by the bad faith, fraud, gross negligence proper party or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreementparties.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) By The Representative is hereby appointed, authorized and empowered to act as a representative by and for the adoption benefit of the MergerSecurityholders, as the exclusive agent and attorney in fact to act on behalf of each Securityholder in connection with, and by virtue to facilitate the consummation of the execution of transactions contemplated hereby, which shall include the power and authority:
(i) to execute and deliver this Agreement and/or acceptance and the Escrow Agreement (with such modifications or changes therein as to which the Representative, in its sole discretion, shall have consented) on behalf of any benefits thereofthe Securityholders and to agree to such amendments or modifications thereto as the Representative, in its sole discretion, determines to be desirable;
(ii) to execute and deliver such waivers and consents in connection with this Agreement, the Escrow Agreement and the consummation of the transactions contemplated hereby and thereby as the Representative, in its sole discretion, may deem necessary or desirable, including any consideration amendments or modifications to this Agreement;
(iii) to collect and receive all moneys and other proceeds and property payable to the Securityholders from the Escrow Account as described herein or otherwise payable to the Securityholders pursuant to this Agreement, including the funds in the Escrow Account and any portion of or earnings accrued thereon which may be distributable to the Securityholders, in accordance with the Escrow Agreement, and, subject to any applicable withholding retention laws, to disburse and pay the same to each Securityholder in accordance with the terms of this Agreement;
(iv) as the Representative, to enforce and protect the rights and interests of the Securityholders irrevocably nominateand to enforce and protect the rights and interests of the Representative arising out of or under or in any manner relating to this Agreement, constitute the Escrow Agreement and appoint each other agreement, document, instrument or certificate referred to herein or the transactions provided for herein, and to take any and all actions which the Representative believes are necessary or appropriate under this Agreement and the Escrow Agreement for and on behalf of the Securityholders, including asserting or pursuing any Claim against Purchaser or the Company, defending any third party Claims or Claims by any Purchaser Indemnified Party, consenting to, compromising or settling any such Claims, conducting negotiations with any Purchaser Indemnified Party or the Company and their respective representatives regarding such Claims, and, in connection therewith, to (A) assert any Claim or institute any action, proceeding or investigation, (B) investigate, defend, contest or litigate any Claim, action, proceeding or investigation initiated by Purchaser or the Company or any other Person, or by any Governmental Authority against the Representative, as any or all of the ClosingSecurityholders, the Escrow Amount or Representative Expense Amount and receive process on behalf of any or all of the Securityholders in any such Claim, action, proceeding or investigation and compromise or settle on such terms as the true Representative shall determine to be appropriate, and lawful agent give receipts, releases and attorney discharges with respect to any such Claim, action, proceeding or investigation, (C) file any proofs of debt, claims and petitions as the Representative may deem advisable or necessary, and (D) file and prosecute appeals from any decision, judgment or award rendered in fact any such action, proceeding or investigation (it being understood that the Representative shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions);
(v) to refrain from enforcing any right of each Securityholderthe Securityholders or any of them and/or the Representative arising out of or under or in any manner relating to this Agreement and the Escrow Agreement, or any other agreement, instrument or document in connection with the foregoing; provided, however, that no such failure to act on the part of the Representative, except as otherwise provided in this Agreement or in the Escrow Agreement, shall be deemed a waiver of any such right or interest by the Representative or by such Securityholders unless such waiver is in writing signed by the waiving party or by the Representative;
(vi) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, unit powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement, the Escrow Agreement and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(vii) to provide notice and instructions to the Escrow Agent and to authorize disbursement of funds from the Escrow Account in accordance with this Agreement; and
(viii) to make any payments or pay any expenses under or in connection with this Agreement or on behalf of the Securityholders.
(b) The Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the payment of all purposes in its third party expenses incurred as the Representative. In connection with this Agreement, and any related agreementsinstrument, agreement or document relating hereto or thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Representative hereunder (i) the Representative shall incur no responsibility whatsoever to any Securityholders by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with full power in itsthe Escrow Agreement or any such other agreement, his instrument or her name and on itsdocument, his excepting only responsibility for any act or her behalf failure to act according which represents willful misconduct and (ii) the Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Representative pursuant to such advice shall in no event subject the Representative to liability to any Securityholder.
(c) In the event that any amount is owed to the terms Representative, whether for fees, expense reimbursement or indemnification, that is in excess of this Agreement the Representative Expense Amount, the Representative shall be entitled to be reimbursed by the Securityholders, and the Ancillary Agreements in the discretion of Securityholders agree to so reimburse the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreementsmade whole for such shortfall. Any and all such actions taken by Upon written notice from the Representative on behalf of to the Securityholders as provided hereunder to the existence of a shortfall, including a reasonably detailed description as to such shortfall, each Securityholder shall be binding on all Securityholders, and Shareholder promptly deliver to the Representative Services LLC hereby accepts such appointment. This power full payment of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration his or her ratable share of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act amount of any one or more Securityholders, or by operation such shortfall based upon such holder’s pro rata portion of applicable law, whether by death or other eventthe Final Merger Consideration.
(bd) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration The Purchaser and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder Surviving Company shall have the right to object, dissent, protest rely upon all actions taken or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required omitted to be taken by the Representative under pursuant to this Agreement (including the Ancillary Agreements, and no Securityholder Escrow Agreement) all of which actions or omissions shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance be legally binding upon the instructions or decisions Securityholders.
(e) The grant of the Representative; authority provided for herein (iii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and is coupled with an interest and shall be enforceable notwithstanding any rights irrevocable and survive the death, incompetency, bankruptcy or remedies that liquidation of any Securityholder may have in connection with and (ii) shall survive the consummation of the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) By the adoption of the Merger, and by virtue of the execution of this Agreement and/or acceptance of Without any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any further act of any one or more SecurityholdersSeller, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇. ▇▇▇▇▇▇ relating is hereby irrevocably appointed as the agent and attorney-in-fact for each Seller to act as the initial representative under this Agreement and the other agreements contemplated hereby in accordance with the terms of this Section 9.12 (the “Representative”). The Representative may resign upon written notice to all Sellers. The Representative may be changed or replaced by vote of a majority of Sellers (computed on the basis of their respective Pro Rata Shares) upon written notice to the determination Representative. The Representative will immediately inform Buyer in the event of the Merger Consideration Representative’s removal or resignation. In the event of the resignation or removal of the Representative, a successor Representative reasonably satisfactory to Buyer shall thereafter be appointed by an instrument in writing signed by Buyer and such successor Representative.
(b) The Representative is hereby authorized and empowered to act for, and on behalf of, any and all Sellers (with full power of substitution in the premises) in connection with such matters as are reasonably related to the transactions contemplated in this Agreement and the determinationTransaction Documents to which any Seller is a party, dispute including: (i) to receive all payments owing to any Seller under this Agreement, (ii) to terminate, amend, waive any provision of, or abandon, this Agreement or the other agreements contemplated hereby, (iii) to act as the representative of each Seller to review and facilitating authorize all claims and disputes or question the disbursement accuracy thereof, (iv) to negotiate and compromise on their behalf with Buyer or any of Buyer’s Affiliates any claims asserted hereunder and to authorize payments to be made with respect thereto, (v) to take such further actions as are authorized in this Agreement and the Milestone Payments pursuant other agreements contemplated hereby, and (vi) in general, do all things and perform all acts, including executing and delivering all agreements (including the Escrow Agreement and the other agreements contemplated in this Agreement), certificates, receipts, consents, elections, instructions and other documents contemplated by, or deemed by the Representative to be necessary or desirable in connection with, this Agreement, the other agreements contemplated hereby and the transactions contemplated herein or therein. Buyer shall be entitled to rely on such appointment and to treat the Representative as the duly appointed attorney-in-fact of each Seller. Notices given to the Representative in accordance with the provisions of this Agreement shall constitute notice to each Seller for all purposes under this Agreement. In all matters relating to this Agreement, shall the Representative will be binding upon the Securityholdersonly party entitled to assert the rights of Sellers. The Representative will have no power or authority to bind Buyer, and no Securityholder shall Buyer will not have any Liability to any person for any act or omission by the right to object, dissent, protest or otherwise contest the sameRepresentative.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions The appointment of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and is an agency coupled with an interest and is irrevocable and any action taken by the Representative pursuant to the authority granted in this Section 9.12 shall be enforceable effective and absolutely binding on each Seller notwithstanding any rights contrary action of or remedies that direction from such Seller. The death or incapacity, or dissolution or other termination of existence, of any Securityholder may have Seller shall not terminate the authority and agency of the Representative. Buyer and any other party to any document contemplated by this Agreement in connection dealing with the transactions contemplated hereby; Representative may conclusively and absolutely rely, without inquiry, upon any act, statement, action, representation, or decision of the Representative as being the binding acts of all Sellers or any of them, notwithstanding any communication from any Seller to the contrary (v) other than communication regarding the provisions resignation or removal of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether Representative pursuant to testamentary disposition, the laws of descent and distribution or otherwisethis Section).
(d) The Representative will incur no liability shall not be liable to any Seller or any other Person (other than Buyer) with respect to any action taken or omitted to be taken by the Representative in his role as Representative under or in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting Agreement, unless such action or omission results from its or arises out of willful misconduct or gross negligence or willful misconduct. The on the part of the Representative, and the Representative shall not be liable for to any action or omission pursuant to Seller in the advice event that, in the exercise of counsel. The Securityholders will indemnifyits reasonable judgment, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, believes there will not be adequate resources available to cover potential costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or to contest a claim made by Buyer. Sellers shall be responsible to Buyer for any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered breach by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, shall be indemnified from and may be removed promptly reimbursed by Sellers for any reason and all expenses, charges and Liabilities, including reasonable attorneys’ fees, incurred by the Representative in the performance or no reason by approval from and by written consent discharge of a majority in interest of its duties pursuant to this Section 9.12 (the Stockholders; provided“Representative Expenses”). In addition, however, in no event shall the Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by reimbursement from the Representative (the “Expense Fund”), which will be used Amount for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of ClosingExpenses.
Appears in 1 contract
Sources: Equity Purchase Agreement (Winnebago Industries Inc)
Representative. (a) By the adoption of the Merger, and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all For purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in Escrow Agreement, each Company Securityholder shall, without any further action on the discretion part of any such Company Securityholder, be deemed (by virtue of the Representative, adoption and to do all things approval of this Agreement and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement approval of the Milestone Payments Merger) to have consented and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable shall agree in connection with, with the Ancillary Agreements. Any execution and all such actions taken by the Representative on behalf delivery of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power Letter of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration Transmittal at the Closing to the appointment of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ relating as the representative of such Company Securityholder, as the attorney-in-fact for and on behalf of each such Company Securityholder, and the taking by the Representative of any and all actions and the making of any decisions required or permitted to be taken by them under or contemplated by this Agreement and the determination other documents contemplated hereby, including the exercise of the power to (i) execute this Agreement, the Escrow Agreement and other Transaction Documents, including all amendments to such agreements, and take all actions required or permitted to be taken under such agreements, (ii) authorize delivery to Buyer of the Escrow Funds or the Representative Amount, or any portion thereof, in satisfaction payment obligations set forth in this Agreement or as provided in the Escrow Agreement, (iii) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to such claims, (iv) resolve any claims, (v) receive and forward notices and communications pursuant to this Agreement and the Escrow Agreement, and (vi) take all actions necessary in the judgment of the Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, the Escrow Agreement and any other Transaction Documents. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ hereby accepts his appointment as the Representative. The Representative is authorized by each Company Securityholder by virtue of the adoption and approval of this Agreement and approval of the Merger Consideration to act on its behalf as required hereunder and under the determinationEscrow Agreement. The Company Securityholders will be bound by all actions taken and documents executed by the Representative in accordance with the terms hereof, dispute and facilitating the disbursement Buyer and its Affiliates will be entitled to rely on any action or decision of the Milestone Payments pursuant Representative. At any time, the Company Securityholders representing a majority of the Pro Rata Portion can appoint a new Representative by written consent by sending notice and a copy of the duly executed written consent appointing such new Representative to this AgreementBuyer and, shall if applicable, the Escrow Agent. Such appointment will be binding effective upon the Securityholderslater of the date indicated in the consent or the date such consent is received by Buyer and, if applicable, the Escrow Agent.
(b) The Parties acknowledge that the Representative’s obligations hereunder are solely as a representative of the Company Securityholder and that all payment obligations of the Company Securityholders are the obligations of the Company Securityholders (and not the Representative), and no Securityholder that the Representative shall have no responsibility for any expenses incurred by it in such capacity. Without limiting the right foregoing, each Company Securityholder agrees to objectreimburse the Representative for such Company Securityholder’s Pro Rata Portion of all reasonable out-of-pocket expenses incurred by the Representative in the performance of his, dissenther or its duties hereunder; provided, protest or otherwise contest that the sameRepresentative shall first utilize the Representative Amount (or, if applicable, Escrow Funds).
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability of any kind with respect to any action or omission by the Representative in connection with its the Representative’s services pursuant to this Agreement and any related agreements the Escrow Agreement, except to in the extent event of liability directly resulting from its the Representative’s fraud, gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Company Securityholders will indemnify, defend and hold harmless the Representative from and against any and all lossesloss, liabilitiesliability, damagesdamage, claimsclaim, penaltiespenalty, finesfine, forfeituresforfeiture, actionsaction, feesfee, costs cost and expenses expense (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement execution and performance of its rights under this Agreement or any other agreement entered into in connection with and the transactions contemplated by this Escrow Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been primarily caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. If not paid directly to the Representative by the Company Securityholder, any such Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement Escrow Funds at such time as such remaining amounts would otherwise be distributable to the Company Securityholders; provided, that while this section allows the Representative may to be paid from the aforementioned sources of fundsEscrow Funds, this does not relieve the Securityholders Company Securityholder from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will , nor does it prevent the Representative be required from seeking any remedies available to advance its own funds on behalf of the Securityholders it at law or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(ed) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of In the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to that ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇ ▇▇▇▇▇▇▇▇ shall be entitled is no longer able to rely perform the duties of the Representative as set forth herein due to his death, incapacity or disability, each Company Securityholder shall, without any further action on the decisions and actions part of any such Company Securityholder, be deemed (by virtue of the prior Representative adoption and approval of this Agreement and approval of the Merger) to have consented and shall agree in connection with the execution and delivery of the Letter of Transmittal at the Closing to the appointment of ▇▇▇▇▇ ▇▇▇▇▇▇ as described the Representative, with the rights, obligations and responsibilities set forth herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Sources: Merger Agreement (SmartRent, Inc.)
Representative. (a) By the adoption approval of the Merger, this Agreement and the transactions contemplated hereby by virtue of the Stockholders, by execution of this Agreement and/or acceptance of any benefits thereofby the Principal Stockholders, including any consideration payable and pursuant to this Agreement, each the terms of the Securityholders Letter of Transmittal, the Stockholders shall and hereby do irrevocably nominatemake, constitute and appoint the Representativeor, as applicable are deemed to have made, constituted or appointed the Representative as their agent, attorney-in-fact and representative and authorize and empower it to fulfill the role of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, Representative contemplated hereunder for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in Escrow Agreement. Notices to or from the discretion Representative shall constitute notice to or from Stockholders (including the Principal Stockholders) and holders of Company Securities. Parent, the Company, Merger Sub and the Surviving Corporation shall be entitled to rely upon the acts, decisions, consents and instructions of the Representative, Representative for all purposes permitted hereunder and to do all things under the Escrow Agreement and to perform all as acts, including (1) amending the Ancillary Agreementsdecisions, (2) waiving rights, (3) discharging liabilities consents and obligations, (4) determining, disputing and facilitating the disbursement instructions of the Milestone Payments and (5) executing and delivering all agreementsStockholders. Parent, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection withMerger Sub, the Ancillary Agreements. Any Surviving Corporation, Disbursing Agent and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder Escrow Agent shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act are relieved of any one liability to any person for any acts done by them in accordance with such decisions, consents or more Securityholders, or by operation of applicable law, whether by death or other eventinstructions.
(b) All decisions The Representative shall have full power of substitution to act and actions by decide to give consent and instruction, as applicable, in the name, place and stead of the Stockholders and each of them in all matters in connection with this Agreement and the Escrow Agreement. The Representative’s power shall include the following powers, including without limitation: give and receive notices and communications; the power to act for the Stockholders and to authorize payment to any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating Indemnified Party with regard to the determination indemnification under Article X; the power to object to such payments, to agree to, negotiate, enter into settlements of or compromise any claim on behalf of the Stockholders or demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims; to authorize agreement to or dispute of the adjustment to the Merger Consideration pursuant to Section 2.6.2; the power to transact or participate in matters of litigation or arbitration in connection with this Agreement or the Escrow Agreement subject to the terms hereof and thereof; the power to do or refrain from doing all such further acts and things on behalf of the Stockholders that the Representative deems necessary or appropriate in its sole discretion, and to execute all such documents as the Representative shall deem necessary or appropriate in connection therewith; and the determinationpower to receive service of process in connection with any claims hereunder. Parent and the Surviving Corporation shall afford the Representative reasonable access to officers, dispute books and facilitating the disbursement records of the Milestone Payments pursuant to Surviving Corporation during regular business hours and as reasonably required in the performance of the Representative’s duties under this Agreement, provided that the Representative shall be binding upon assume and abide by customary confidentiality restrictions in relation to the Securityholdersforegoing, and no Securityholder shall have including entering into a customary confidentiality agreement with Parent or the right to object, dissent, protest Surviving Corporation should Parent or otherwise contest the sameSurviving Corporation so request.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of If the Representative shall be conclusive decease or otherwise becomes incapacitated and binding upon all Securityholders and no Securityholder shall have any cause of action against the unable to serve as Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and his successor shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with appointed by a majority-in-interest of the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseEscrow Amount.
(d) The Representative will incur no liability shall act for the Stockholders hereunder in connection the manner the Representative believes to be in the best interest of the Stockholders and consistent with its services pursuant obligations hereunder, but shall have no duties or obligations except as specifically set forth herein and in the Escrow Agreement. In acting as representative of the Stockholders, the Representative may rely upon, and shall be protected in acting or refraining from acting upon, an opinion or advice of counsel, certificate of auditors or other certificate, statement, instrument, opinion, report, notice, request, consent, order, arbitrator’s award, appraisal, bond or other paper or documents reasonably believed by them to be genuine and to have been signed or presented by the proper party or parties. The Representative shall not be personally liable to the Stockholders for any action taken, suffered or omitted by each of them in good faith and reasonably believed by each of them to be authorized or within the discretion of the rights or powers conferred upon them by this Agreement Section 2.11. The Representative may consult with counsel and any related agreements except advice of such counsel shall be full and complete authorization and protection in respect to any action taken or suffered or omitted by each of them in such capacity in good faith and in accordance with such opinion of counsel. The Representative may perform its duties as the Representative either directly or by or through agents or attorneys, and the Representative shall not be responsible to the extent resulting from its gross Stockholders for any misconduct or negligence on the part of any agent or willful misconductattorney appointed with due care by them hereunder. The Representative shall not be liable for any action taken in the scope of the Representative’s authority hereunder unless such action is finally determined to have been grossly negligent or omission reckless.
(e) Each holder of Series D Shares and shares of Company Common Stock shall, ratably in accordance with his, her or its Escrow Allocation, pay or reimburse the Representative, upon presentation of an invoice, for all fees, costs, expenses and disbursements incurred by or at the direction of the Representative (including, without limitation, fees and expenses of counsel, accountants, and other advisors to or retained by the Representative) in connection with the defense, negotiation and settlement of indemnification claims pursuant to Article X, and any other matters contemplated to be handled by the advice Representative by this Section 2.11. Such amounts shall first be paid out of counselan advance amount equal to Three Hundred and Fifty Thousand Dollars ($350,000) (the “Advance Amount”), which, as contemplated by Section 2.5.1(e), will be delivered by Parent to the Representative at the Closing as a deduction from the Preliminary Merger Consideration and which the Representative shall maintain in a separate account for application under this Section 2.11. The Securityholders will Representative shall be entitled to pay all fees, costs, expenses and disbursements incurred by or at the direction of the Representative in connection with the administration of the Representative’s duties under this Agreement from the Advance Amount. In addition, each holder of Series D Shares and shares of Company Common Stock shall, ratably in accordance with his, her or its Escrow Allocation, indemnify, defend and hold harmless the Representative from and the Representative’s Affiliates and their respective partners, directors, officers, managers, members, agents, attorneys, employees and stockholders of each of the foregoing (to the extent not reimbursed through the Advance Amount or the Escrow Amount) against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of indemnification claim pursuant to Article X hereof that such indemnitees may suffer or incur in connection with its capacity as the Representative’s enforcement of its rights Representative (or a related party thereof), or any action taken or omitted by such indemnitees under this Agreement (except such acts or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as omissions resulting from such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraudindemnitee’s willful misconduct, gross negligence or willful misconduct fraud). The obligations of each holder of Series D Shares and shares of Company Common Stock under this Section 2.11(e) shall not exceed the Merger Consideration actually paid to such Stockholder (less all amounts previously paid or set aside in satisfaction of indemnification claims pursuant to Article X and amounts paid or reimbursed by such Stockholder in accordance with this Section 2.11(e)). The Representative shall not be liable for any act done or omitted hereunder as Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of legal counsel shall be conclusive evidence of such good faith. The Representative shall have the right, at its option at any time and from time to time, to engage a third-party provider of stockholder representative services to replace the Representative as the Representative for any or all purposes hereunder. In any such circumstance, such third-party provider shall have all of the Representative, rights and obligations as the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Sources: Merger Agreement (Drugstore Com Inc)
Representative. (a) By Subject to the adoption of the Merger, terms set forth herein and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, effective as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating Altro is hereby constituted and appointed as the Representative and as agent and true and lawful attorney-in-fact for the Sellers, and the Representative hereby accepts such appointment. Each Seller, by virtue of its adoption of this Agreement and approval of the Transactions, will be deemed to have appointed and constituted the Representative as its agent and true and lawful attorney-in-fact with the powers and authority and discretion as set forth in this Agreement. The Representative will have full power and authority to represent the Sellers and their respective successors with respect to all matters arising under this Agreement and the Escrow Agreement, with full powers of substitution, and all actions taken by the Representative hereunder and thereunder authorized by the Sellers (or if applicable, their respective heirs, legal representatives, successors and permitted assigns) who held a majority of the voting power represented by the Shares issued and outstanding immediately prior to the determination of Closing (the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall “Majority Holders”) will be binding upon the SecurityholdersSellers and their respective executors, heirs, legal representatives and successors as if expressly confirmed and ratified in writing by each of them, and no Securityholder shall Seller will have the right to object, dissent, protest or otherwise contest the same. In furtherance of the foregoing and without limitation of the foregoing, the Representative will be the exclusive agent for and on behalf of the Sellers to (1) enter into the Escrow Agreement; (2) give and receive notices and communications to or from Buyer (on behalf of itself or any other Sellers) or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the other documents contemplated by the Transactions; (3) authorize deliveries to Buyer of cash or other property from the Working Capital Fund upon written authorization by the Majority Holders; (4) 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 unless otherwise specifically set forth in this Section 5.15(a); (5) subject to Section 7.3 and upon written authorization by the Majority Holders, execute for and on behalf of each Sellers 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) and (6) upon written authorization by the Majority Holders, enter into any waiver or extension pursuant to Section 7.4. The Representative will be the sole and exclusive means of asserting or addressing any of the above on behalf of the Sellers, and no Seller 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. 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 Seller or by operation of Law, whether by the death or incapacity of any Seller 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 Seller or the Representative will have received any notice thereof. Each Seller hereby waives any and all defenses which may be available to contest, negate or disaffirm the action of the Representative taken in good faith under the Escrow Agreement or pursuant to the authority granted in this Agreement. Notwithstanding the power of attorney granted in this Section 5.15, no agreement, instrument, acknowledgement or other act or document will be ineffective solely by reason of the Sellers having signed such agreement, instrument, acknowledgement or other act or document directly. Any action taken by the Representative pursuant to the authority granted in this Agreement will be effective and absolutely binding on the Sellers notwithstanding any contrary action of, or direction from, any such Seller, except in the case of fraud by the Representative. Notwithstanding anything else contained herein, Representative may not take any action that would materially and adversely impact any Seller without such Seller’s prior written consent.
(b) In the event that the Representative becomes unable to perform his responsibilities hereunder or resigns from such position, the Majority Holders shall select another representative to fill such vacancy, and such substituted representative shall be deemed to be the Representative for all purposes of this Agreement.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determinationAll expenses, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken if any, incurred by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination performance of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with his duties as the Representative (on behalf of the Securityholders“Representative Expenses”) and not with each Securityholder; (iii) all actions, decisions and instructions in excess of the Representative shall Fund will be conclusive borne and binding upon all Securityholders and no Securityholder shall have any cause paid by the Sellers in accordance with their Pro Rata Share of action against Company Common Stock as of immediately prior to the Closing. No bond will be required of the Representative; (iv) . The Representative will also be entitled to advances against Representative Expenses from the provisions Representative Fund, in the judgment and discretion of this Section 1.4 are independent and severablethe Representative, are irrevocable and coupled with an interest and shall acting reasonably. Representative Expenses will be enforceable notwithstanding any rights or remedies that any Securityholder may have paid first using amounts on deposit in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each SecurityholderRepresentative Fund, and second directly by the Sellers promptly against presentation of an invoice by the Representative. The Representative is hereby authorized to withdraw all or any references in this Agreement portion of the Representative Fund to a Securityholder shall mean and include pay for any Representative Expenses. Notices or communications to or from the successors Representative will constitute notice to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, or from each of the laws of descent and distribution or otherwiseSellers.
(d) The Representative will incur no liability not be liable to any Seller for any act done or omitted hereunder as the Representative while acting in connection with its services pursuant to this Agreement good faith and any related agreements except act done or omitted in accordance with the advice of counsel or other expert will be conclusive evidence of such good faith. In the performance of its duties hereunder, the Representative will be entitled to rely upon any document or instrument reasonably believed by it to be genuine, accurate as to content and signed by the extent resulting from its Sellers or by Buyer or the Escrow Agent. The Representative may assume that any Person purporting to give any notice in accordance with the provisions hereof has been duly authorized to do so. The Sellers will jointly and severally indemnify the Representative and hold the Representative harmless against any loss, Liability or expense incurred without gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to bad faith on the advice part of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement acceptance or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct administration of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative ’s duties hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The By its signature to this Agreement, the initial Representative may resign at any time upon 30 days’ written noticehereby accepts the appointment contained in this Agreement, as confirmed and extended by this Agreement, and may be removed for any reason or no reason by approval from agrees to act as the Representative and by written consent of a majority in interest to discharge the duties and responsibilities of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign pursuant to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event terms of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closingthis Agreement.
Appears in 1 contract
Representative. (a) By the adoption The Partnership, on behalf of the Mergeritself and on behalf of each Existing Holder, shall be deemed to have irrevocably constituted, appointed, authorized, directed and by virtue of the execution of this Agreement and/or acceptance of any benefits thereofempowered, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, effective as of the ClosingClosing (and without regard to whether such holder has delivered a duly executed Letter of Transmittal) the Representative to act as sole and exclusive agent, as the true attorney-in-fact and lawful agent and attorney in fact representative of each Securityholder, for all purposes in connection with this Agreement, and any related agreementssuch Existing Holder, with full power in itsof substitution, his or her name and on its, his or her behalf with respect to act according to the terms of all matters under this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all actsagreements ancillary hereto, including (1) amending the Ancillary Agreementsgiving and receiving notices hereunder, (2) waiving rightsentering into any amendment or modification hereof, (3) discharging liabilities and obligationsengaging special counsel, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and accountants or other instruments contemplated by, advisors or deemed advisable in connection with, the Ancillary Agreements. Any and all incurring such actions taken by the Representative other expenses on behalf of the Securityholders as provided Existing Holders, holding back from disbursement to any Existing Holder any such funds to the extent it reasonably determines may be necessary or required under the terms and conditions of this Agreement or applicable Law, negotiating, settling, compromising or otherwise resolving any dispute hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney (including any disputes relating to the Adjustment Escrow Amount) or doing any and all authority hereby conferred is coupled things and taking any and all actions, in each case that the Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with an interest, is granted or to carry out the transactions contemplated by this Agreement or any other documents or instruments entered into in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other eventconnection herewith.
(b) All decisions and actions by the Representative, including any agreement between Neither the Representative and ▇▇▇▇▇▇▇▇ relating nor any of its officers, directors, managers, employees, agents or representatives shall incur any responsibility or liability whatsoever to the determination any Existing Holder by reason of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest any error in judgment or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to other act or omission performed or omitted hereunder or in connection with this Agreement or any such other actions required to be taken by the Representative under the Ancillary Agreementsagreement, and no Securityholder shall have any cause of action against Kardigan instrument or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreementsdocument, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence any act or failure to act constitutes fraud or willful misconduct. The Representative shall not be liable for any action or omission pursuant entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue. The Securityholders will Representative shall not be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement. Each Existing Holder shall, severally and not jointly, indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement execution and performance of its rights under this Agreement or any other agreement entered into in connection with and the transactions contemplated by this Agreementagreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the bad faith, fraud, gross negligence fraud or willful misconduct of the Representative, the Representative will reimburse the Securityholders Existing Holders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence fraud or willful misconduct. If not paid directly to the Representative by the Existing Holders, any such Representative Losses may be recovered by the Representative from (i) the funds in the Representative Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement amounts in the Adjustment Escrow Account at such time as such remaining amounts would otherwise be distributable to the SecurityholdersExisting Holders; provided, that while this section allows the Representative may to be paid from the aforementioned sources of fundsRepresentative Expense Fund and the Adjustment Escrow Account, this does not relieve the Securityholders from Existing Holders of their obligation to promptly pay such Representative Losses L▇▇▇▇▇ as they are suffered or incurredincurred (consistent with the allocation in the immediately preceding sentence), nor does it prevent the Representative from seeking any remedies available to it at law or otherwise. In Notwithstanding anything to the contrary in this Agreement, in no event will the Representative be required to advance its own funds on behalf of the Securityholders Existing Holders or otherwise. Notwithstanding anything The Representative may consult with counsel of its own choice and will have full and complete authorization and protection for any action taken and suffered by it in this Agreement to good faith and in accordance with the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunderopinion of such counsel. The foregoing indemnities will indemnity obligations of this Section 10.21(b) shall survive the Closing, the resignation or removal of the Representative or the any termination of this AgreementAgreement pursuant to Section 9.02.
(ec) The Representative may resign at any time upon 30 days’ written notice, Each of Parent and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇M▇▇▇▇▇ Sub shall have the right to rely upon all actions taken or omitted to be taken by the Representative hereunder or in connection with this Agreement. All decisions, actions, consents and instructions of the Representative authorized to be made, taken or given pursuant to this Section 10.21(c) shall be entitled final and binding upon all the Existing Holders, and no Existing Holder shall have any right to rely on object, dissent, protest or otherwise contest the decisions and actions of the prior Representative as described hereinsame.
(fd) Pursuant to Section 2.2(c), at At the Closing, Kardigan Parent shall depositdeliver to the Representative the Representative Expense Fund, on behalf of to be held to cover and reimburse the Securityholdersfees, the Expense Fund Amount to an account designated expenses and other monetary obligations incurred by the Representative (in connection with the “carrying out by the Representative of its duties under this Agreement. The Representative Expense Fund”), which Fund will be used for the purposes of paying directly, or reimbursing the Representative for, any expenses incurred by the Representativethird party expenses, charges or liabilities pursuant to this Agreement and any agreements ancillary hereto. The Securityholders Existing Holders 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 fraud or willful misconduct. 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. .
(e) As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining (or will cause to be delivered) the balance of the Representative Expense Fund to Kardigan for further distribution the Existing Holders the portion of the balance of the Representative Expense Fund such holder is entitled to receive. In the event that any amount is owed to the Securityholders Representative, whether for fees, expense reimbursement or indemnification, that is in accordance excess of the amounts remaining in the Representative’s Expense Fund, the Representative shall be entitled to be reimbursed by the Existing Holders on a pro rata basis (consistent with the allocation in the immediately preceding sentence), and the Existing Holders shall so reimburse the Representative; provided, that for the avoidance of doubt, the aggregate of the applicable pro rata shares of all of the Existing Holders shall in all cases sum to 100%. Upon written notice from the Representative to the Existing Holders as to any such owed amount, including a reasonably detailed description as to such owed amount, each Existing Holder shall promptly deliver to the Representative full payment of his, her or its pro rata share of such owed amount (determined on a basis consistent with the allocation in the first sentence of this Section 2.3(d) (the “Expense Fund Distribution”10.21(e)). For tax Tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders Existing Holders at the time of Closing.
Appears in 1 contract
Sources: Merger Agreement (Heico Corp)
Representative. (a) By The Representative is hereby irrevocably appointed as the adoption representative, agent, proxy, and attorney-in-fact for all the Company Securityholders for all purposes under this Agreement including the full power and authority on the Company Securityholders’ behalf: (i) to consummate the transactions contemplated under this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (ii) to negotiate and settle disputes arising under, or relating to, this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (iii) to receive and disburse to the Company Securityholders any funds received on behalf of the MergerCompany Securityholders under this Agreement or otherwise, and by virtue (iv) to withhold any amounts received on behalf of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable Company Securityholders pursuant to this Agreement, each including the Representative Holdback Amount, or otherwise to satisfy any and all obligations or liabilities incurred by the Company Securityholders or the Representative in the performance of their duties hereunder, (v) to direct the distribution of funds, designate or engage a paying agent to distribute funds (including, the Closing Date Cash Merger Consideration, the Adjustment Amount payable in accordance with Section 3.6 (Post-Closing Merger Consideration Adjustment and Payments), the determination and distribution of the Securityholders irrevocably nominatePerformance Transaction Bonus payable as provided for herein, constitute and appoint funds from the RepresentativeEscrow Account and the Representative Holdback Amount), as make or direct payments of funds from the Representative Holdback Amount, give receipts for funds, authorize deliveries to Parent of cash from the Escrow Account in satisfaction of claims asserted by Parent, and object to any claims by any Person against the Escrow Account, (vi) to execute and deliver any amendment or waiver to this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of the Closing, as Company Securityholders) and (vii) to take all other actions to be taken by or on behalf of the true and lawful agent and attorney in fact of each Securityholder, for all purposes Company Securityholders in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representativeother agreements, instruments, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments documents contemplated by, hereby or deemed advisable executed in connection with, the Ancillary Agreementsherewith. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all The Company Securityholders, by approving this Agreement (whether by vote or by execution of a Letter of Transmittal), further agree that such agency and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is proxy are coupled with an interest, is granted in consideration are therefore irrevocable without the consent of the mutual covenants and agreements made herein, shall be irrevocable Representative and shall not be terminated by any act survive the death, incapacity, bankruptcy, dissolution or liquidation of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) Company Securityholder. All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon all of the Securityholders, Company Securityholders and no Company Securityholder shall have the right to object, dissent, protest or otherwise contest the same. If an allocation is not otherwise provided for in this Agreement, the Representative shall distribute funds to the Company Securityholders in accordance with their respective Pro Rata Share. Parent may conclusively rely, without independent verification or investigation, upon any such decision or action of the Representative as being the binding decision or action of every Company Securityholder, and Parent shall not be liable to any Company Securityholder or any other Persons for any actions taken or omitted from being taken by them or by Parent in accordance with or reliance upon any such decision or action of the Representative. The Representative shall act by a majority in interest of Oak Hill Capital Partners III, L.P. and Oak Hill Capital Management Partners III, L.P. The Representative shall have no duties or obligations to the Company Securityholders hereunder, except as expressly set forth in this Agreement.
(b) By the approval of this Agreement, each Company Securityholder hereby severally, for itself only and not jointly and up to its Pro Rata Share, agrees to indemnify and hold harmless the Representative and its partners, managers, officers, agents and other representatives against all expenses (including reasonable attorneys’ fees), judgments, fines and amounts incurred by such Persons in connection with any 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, other than as a result of the Representative’s bad faith or willful misconduct.
(c) Each Neither the Representative nor any of its members, managers, officers, agents or other representatives shall incur any liability to any Company Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions by virtue of the Representative as to the determination failure or refusal of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates such Persons for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required reason to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with consummate the transactions contemplated hereby; hereby or relating to the performance of their duties hereunder, except for actions or omissions constituting bad faith or willful misconduct. The Representative and (v) the provisions of this Section 1.4 shall be binding upon the executorsits members, heirsmanagers, legal officers, agents and other representatives and successors their respective Affiliates shall have no liability in respect of each any Proceeding brought against such Persons by any Company Securityholder, and any references in this Agreement regardless of the legal theory under which such liability or obligation may be sought to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunderbe imposed, whether pursuant to testamentary dispositionsounding in contract or tort, the laws of descent and distribution or whether at law or in equity, or otherwise, unless such Persons took or omitted taking any action in bad faith or as result of willful misconduct.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to shall have the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreementright, in each case as such Representative Loss is suffered or incurred; providedits sole discretion, that in the event that to recover from any such Representative Loss is finally adjudicated to have been caused amounts withheld by the bad faith, fraud, gross negligence or willful misconduct of the Representative, including without limitation, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraudHoldback Amount, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds its reasonable out-of-pocket expenses incurred in the Expense Fund and performance of its duties hereunder (ii) any other funds that become payable to the Securityholders under this Agreement at such time as “Charges”). In the event such amounts would otherwise be distributable are insufficient to satisfy the Securityholders; providedCharges, that while then the Representative may be paid from direct the aforementioned sources of funds, this does not relieve the Securityholders from their obligation Escrow Agent to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereundersuch deficit from the Escrow Amount. The foregoing indemnities In event the Escrow Amount is insufficient to satisfy such deficit, each Company Securityholder will survive the Closing, resignation or removal of be obligated to pay any remaining unpaid amounts to the Representative or the termination of this Agreementon a several, and not joint, basis, up to each such Company Securityholder’s Pro Rata Share.
(e) In furtherance of, and without limiting any rights of the Representative set forth in, Sections 10.15(a)(iv), 10.15(a)(v) and 10.15(d), the Representative shall have the right and the Company Securityholders hereby authorize the Representative, to withhold from the Closing Date Merger Consideration the Representative Holdback Amount (in connection with the allocation and distribution of the Closing Date Merger Consideration in accordance with Article III (Merger Consideration; Conversion of Securities; Exchange of Certificates)) to satisfy potential future obligations of the Company Securityholders and expenses incurred by the Representative in connection with performing its obligations under this Agreement and the Escrow Agreement. The Representative may resign at any Holdback Amount shall be retained by the Representative until such time upon 30 days’ written noticeas the Representative shall determine, and may be removed for any reason or no reason by approval from and by written consent and, subject to the terms of a majority in interest this Agreement, the balance of the Stockholders; providedRepresentative Holdback Amount, howeverif any, in no event shall be delivered by the Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account paying agent designated by the Representative to the Company Securityholders as if such amounts were being distributed pursuant to Section 3.7(a)(i) (the “Expense Fund”Positive Adjustment Amount), which will be used for any expenses incurred by the Representative. The Company Securityholders will not receive any interest or earnings on the Expense Fund Representative Holdback Amount 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 hold these funds separate from not be liable for any loss of principal of the Representative Holdback Amount other than as a result of its corporate funds bad faith or willful misconduct. The Representative Holdback Amount shall be held in an FDIC-insured account or accounts at a nationally recognized financial institution.
(f) In the event that the Representative becomes unable or unwilling to continue in its capacity as Representative, or if the Representative resigns as the Representative, a majority-in-interest of the Company Securityholders may by written consent appoint a new representative as the Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of a majority-in-interest of the Company Securityholders must be delivered to Parent. Such appointment will not voluntarily make these funds available to its creditors be effective upon the later of the date indicated in the event of bankruptcy. As soon as practicable following consent or the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been date such consent is received and voluntarily set aside by the Securityholders at the time of ClosingParent.
Appears in 1 contract
Representative. (a) By In order to efficiently administer the adoption transactions contemplated hereby, including (i) the determination of the MergerFinal Closing Adjustment and the Adjusted Transaction Consideration, and by virtue (ii) the waiver of any condition to the obligations of the execution of this Agreement Equity Holders to consummate the transactions contemplated hereby and (iii) the dispute, defense and/or acceptance settlement of any benefits thereof, including any consideration payable claims for which the Equity Holders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to this Agreement, each the Principal Stockholders, by their execution of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and the other Equity Holders, by the approval of the Merger and adoption of this Agreement and/or their acceptance of any related agreementsconsideration pursuant to this Agreement, with full power in itshereby designate the Representative as their representative, his or her name attorney-in-fact and on itsagent.
(b) The Principal Stockholders, his or her behalf by their execution of this Agreement, and the other Equity Holders, by the approval of the Merger and adoption of this Agreement and/or their acceptance of any consideration pursuant to act according this Agreement, hereby authorize the Representative (i) to make all decisions relating to the determination of the Final Closing Adjustment and the Adjusted Transaction Consideration pursuant to Section 1.9, (ii) to take all action necessary in connection with the waiver of any condition to the obligations of the Company and the Equity Holders to consummate the transactions contemplated hereby, or the dispute, defense and/or settlement of any claims for which the Equity Holders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, (iii) to give and receive all notices permitted or required to be given under this Agreement, (iv) to execute and deliver the Escrow Agreement and (v) to take any and all additional action as is contemplated to be taken by or on behalf of the Equity Holders by the terms of this Agreement.
(c) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Equity Holders (acting by the vote of the Company Stockholders who immediately prior to the Effective Time held at least a majority of the outstanding Company Shares held by all Company Stockholders (voting on an as-converted to Common Share basis)) shall select another representative to fill the vacancy of the Representative initially chosen by the Company Stockholders, and such substituted representative shall be deemed to be the Representative for all purposes of this Agreement and the Ancillary Agreements in the discretion documents delivered pursuant hereto.
(d) All decisions and actions of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder Equity Holders shall be binding on all Securityholders, deemed to be facts ascertainable outside of this Agreement and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholdersall Equity Holders, and no Securityholder Equity Holder shall have the right to object, dissent, protest or otherwise contest the same. A decision, act, consent, instruction or action of the Representative, including any agreement between the Representative and the Buyer relating to the determination of the Final Closing Adjustment, the Adjusted Transaction Consideration or the dispute, defense or settlement of any claims for which the Equity Holders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, shall constitute a decision, act, consent, instruction or action of all Equity Holders and shall be binding and conclusive upon each of such Equity Holders and the Parties, the Surviving Corporation and the Escrow Agent may rely upon any such decision, act, consent, instruction or action as being the decision, act, consent or instructions of each and every such Equity Holder. The Buyer, the Surviving Corporation and the Escrow Agent are hereby relieved from any liability to any Equity Holder for any acts done by them in accordance with such decision, act, consent, instruction or action of the Representative.
(ce) Each Securityholder agrees that: The Representative will receive no compensation for services as the Representative except as set forth in that certain Engagement Agreement to be entered into among the Representative and certain Company Stockholders. The Equity Holders will pay all (i) Kardigan professional fees and expenses of any attorney, accountant or other advisors or expert retained by the Representative and other reasonable out-of-pocket expenses incurred by the Representative in connection with the performance of the Representative’s duties under this Agreement and the Escrow Agreement and (ii) any and all losses, liabilities, damages, claims, penalties, fines, forefeitures, actions, fees, costs and expenses actually incurred or suffered by the Representative in connection with this Agreement or the Escrow Agreement as the Representative (collectively, the “Representative Expenses”) in each case as such Representative Expense is suffered or incurred; provided, that in the event any such Representative Expense is finally adjudicated to have been directly caused by the fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Equity Holders the amount of such indemnified Representative Expense to the extent attributable to such fraud, gross negligence or willful misconduct. Such Representative Expenses may only be recovered by the Representative from (i) the Representative Expense Fund, (ii) the Escrow Fund (as set forth below) and (iii) the Equity Holders directly; 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 Equity Holders from their obligation to promptly pay such Representative Expenses as such Representative Expenses are actually suffered or incurred, nor does it prevent the Representative from seeking any remedies against the Equity Holders available to it at law or otherwise. In no event will the Representative be required to advance its Affiliates own funds on behalf of the Equity Holders or otherwise. Following the exhaustion of the Representative Expense Fund and the expiration of the Representative Period and the resolutions of all pending claims related thereto (and, for the avoidance of doubt, at no time prior thereto), the Representative shall have the right to recover Representative Expenses from the Escrow Fund prior to any distribution to the Equity Holders. The Equity Holders will on an individual and several basis (and not jointly as to or with any other Equity Holder) indemnify, defend, hold harmless and reimburse, on an Equity Holder Pro Rata Basis, the Representative for Representative Expenses, in each case as such Representative Expenses are incurred. Notwithstanding the foregoing, the Representative shall first seek reimbursement and recovery from the Representative Expense Fund, and only thereafter directly from the Equity Holders in accordance with the terms of this Agreement. The Equity Holders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Representative or the termination of this Agreement, and the Representative and the Equity Holders acknowledge and agree that the provisions of this paragraph (e) shall impose no obligations on the Company, the Surviving Corporation, the Buyer or any of their respective Affiliates.
(f) By his, her or its execution of this Agreement, each Principal Stockholder, and by their approval of the Merger and adoption of this Agreement, and/or their acceptance of any consideration pursuant to this Agreement, each other Equity Holder, agrees that:
(i) the Buyer shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration Final Closing Adjustment and the determinationAdjusted Transaction Consideration, dispute and facilitating the disbursement settlement of any claims for indemnification by the Milestone Payments Buyer and/or the Surviving Corporation pursuant to this Agreement Article VI or any other actions required or permitted to be taken by the Representative under the Ancillary Agreementshereunder, and no Securityholder party shall have any cause of action against Kardigan or its Affiliates the Buyer for any action taken by such Person the Buyer in reliance upon the instructions or decisions of the Representative; ;
(ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder Equity Holder shall have any cause of action against the Representative for, and the Representative shall have no liability to any Equity Holder in connection with, any action taken or omitted, decision made or instruction given by the Representative under this Agreement, except in the event of liability directly resulting from fraud, gross negligence or willful misconduct on the part of the Representative;
(iii) each such Equity Holder will, on an individual and several basis based on their Equity Holder Pro Rata Basis (and not jointly as to or with any other Equity Holder) indemnify, defend and hold harmless the Representative in accordance with Section 1.11(e) above; provided, that that Representative shall first seek recovery from the Representative Expense Fund;
(iv) the provisions of this Section 1.4 1.11 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder Equity Holder may have in connection with the transactions contemplated hereby; and by this Agreement;
(v) remedies available at Law for any breach of the provisions of this Section 1.11 are inadequate; therefore, the Buyer and the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either the Buyer and/or the Surviving Corporation brings an action to enforce the provisions of this Section 1.11; and
(vi) the provisions of this Section 1.4 1.11 shall be binding upon the executors, heirs, legal representatives representatives, personal representatives, successors and successors permitted assigns of each SecurityholderEquity Holder, and any references in this Agreement to a Securityholder an Equity Holder or the Equity Holders shall mean and include the successors to such Securityholderthe Equity Holder’s rights hereunder, whether pursuant to testamentary disposition, the laws Laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) By Each Seller hereby irrevocably constitutes and appoints Sh▇▇▇▇ ▇▇▇▇▇▇▇ ▇s the adoption Representative, for the purpose of performing and consummating the transactions contemplated by this Agreement. The appointment of Sh▇▇▇▇ ▇▇▇▇▇▇▇ ▇s the Representative is coupled with an interest and all authority hereby conferred shall be irrevocable and the Representative is hereby authorized and directed to perform and consummate on behalf of Sellers all of the Merger, transactions contemplated by this Agreement.
(b) The Representative shall pay all costs and expenses incurred by virtue or on behalf of the execution of this Agreement and/or acceptance of any benefits thereofRepresentative, in his capacity as such, including costs and expenses incurred in connection with any consideration payable pending or threatened dispute or claim with respect to this Agreement, any other Transaction Document or any agreement, document or instrument entered into pursuant to this Agreement, each or the transactions contemplated hereby. The Representative shall be reimbursed for all such fees, costs and expenses (including reasonable attorneys’ fees, costs and expenses) first from the Representative Expense Fund Amount and thereafter from the Sellers pro rata in accordance with their Ownership Percentages. In connection with the foregoing, at the Closing, the Representative Expense Fund Amount shall be transferred by or on behalf of the Securityholders irrevocably nominate, constitute and appoint Buyer to the Representative, to be used by the Representative to pay expenses incurred by the Representative in his or her capacity as the Representative. Once the Representative determines, in his or her sole discretion, that the Representative will not incur any additional expenses in its capacity as the Representative, then the Representative will distribute the remaining unused Representative Expense Fund Amount, if any, to the Sellers in amounts proportionate to their respective Ownership Percentages.
(c) Not by way of limiting the authority of the ClosingRepresentative, as the true each and lawful agent and attorney in fact all of each SecurityholderSellers, for themselves and their respective heirs, executors, administrators, successors and assigns, hereby authorize the Representative to:
(i) waive any provision of this Agreement which the Representative deems necessary or desirable;
(ii) execute and deliver on Sellers’ behalf all purposes documents and instruments which may be executed and delivered pursuant to this Agreement, including without limitation the Acquired Shares and any transfer documentation with respect thereto;
(iii) calculate, negotiate and agree to any adjustments to the Purchase Price;
(iv) make and receive notices and other communications pursuant to this Agreement and service of process in any legal action or other Proceeding arising out of or related to this Agreement or any of the transactions contemplated hereunder;
(v) contest, negotiate, defend, compromise or settle any action, claims or disputes arising out of or related to this Agreement or any of the transactions contemplated hereunder through counsel selected by the Representative and solely at the cost, risk and expense of Sellers;
(vi) satisfy any indemnification amounts owed pursuant to the terms herein;
(vii) agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to such indemnification obligations or actions, claims or disputes;
(viii) resolve any actions, claims or disputes arising from Sellers indemnification obligations hereunder;
(ix) take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated hereby by arbitration, settlement or otherwise;
(x) receive and distribute all or any portion of the Purchase Price or any other payment owing to Sellers hereunder in accordance with the terms herein or therein;
(xi) appoint or provide for successor agents;
(xii) select, retain, hire and consult with legal counsel, independent public accountants and other experts, solely at the cost and expense of Sellers;
(xiii) pay expenses incurred or which may be incurred by or on behalf of Sellers in connection with this Agreement; and
(xiv) take or forego any or all actions permitted or required of any Sellers or necessary in the judgment of the Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement.
(d) Each Seller agrees that the Representative shall have no Liability to Sellers for any act or omission by the Representative as permitted under this Section, excepting only actions taken in bad faith, and each Seller hereby irrevocably waives and releases any related agreementsclaims it may have against the Representative for his acts and omissions hereunder other than any actions taken in bad faith.
(e) EACH SELLER UNDERSTANDS AND ACKNOWLEDGES THAT HE OR SHE IS: (A) AUTHORIZING THE REPRESENTATIVE TO ACT FOR THE SELLERS, with full power in itsCOLLECTIVELY AND INDIVIDUALLY, his WITH BROAD POWERS; AND (B) AGREEING THAT THE REPRESENTATIVE WILL NOT BE LIABLE TO THE SELLERS, COLLECTIVELY OR INDIVIDUALLY, UNLESS THE REPRESENTATIVE ACTS IN BAD FAITH. EACH SELLER FURTHER ACKNOWLEDGES THAT HE OR SHE HAS BEEN ADVISED TO SEEK INDEPENDENT AND SEPARATE COUNSEL PRIOR TO SIGNING THIS AGREEMENT AND HAS HAD THE OPPORTUNITY TO DO SO.
(f) In the event of the failure or her name and on itsrefusal of Sh▇▇▇▇ ▇▇▇▇▇▇▇ ▇o act as the Representative (or upon the death or incapacity (mental or physical) for more than 14 days of Sh▇▇▇▇ ▇▇▇▇▇▇▇ ▇r any successor), his or her behalf to act according to the terms remaining Seller that is an individual shall be deemed the Representative for purposes of this Agreement Section 11.17 and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including Agreement.
(1g) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such All actions taken by the Representative on behalf of the Securityholders as provided hereunder under this Agreement shall be binding on all Securityholders, upon each Seller and Shareholder Representative Services LLC hereby accepts such appointment. This power its successors as if expressly confirmed and ratified in writing by each of attorney them and all authority hereby conferred is coupled with an interestdefenses which may be available to any Seller to contest, is granted in consideration negate or disaffirm the action of the mutual covenants Representative taken in good faith under this Agreement or any other Transaction Document are waived. Buyer shall serve notice to the Representative with respect to any and agreements made hereinall matters concerning any Seller arising out of or related to this Agreement, shall be irrevocable and shall not be terminated by any act of any one the Transaction Documents or more Securityholders, or by operation of applicable law, whether by death or other eventthe Transaction.
(bh) Buyer shall be entitled to rely conclusively (without further evidence of any kind whatsoever) upon any document or other paper delivered by the Representative as being authorized by each Seller, as applicable. All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ Buyer relating to (i) the determination of the Merger Consideration Estimated Cash Purchase Price and the determination, dispute and facilitating the disbursement of the Milestone Payments Final Cash Purchase Price pursuant to Section 1.3 (ii) the defense or settlement of any claims for which Sellers, as applicable, may be required to indemnify Buyer Indemnified Parties pursuant to Article 9 hereof, (iii) any amendment, supplement, or modification of this Agreement and any waiver of any claim or right arising out of this Agreement, discharging Liabilities and obligations, and (iv) the performance of all things and acts, including executing and delivering all agreements, certificates, receipts, instructions, and other instruments contemplated by or deemed advisable to effectuate the provisions of this Section 11.17, shall be binding upon the Securityholderseach Seller, and no Securityholder Seller shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) By At the adoption Effective Time, and without further act of any Equityholder, Representative shall be appointed as the exclusive agent and attorney-in-fact to act on behalf of each Equityholder, in connection with and to facilitate the consummation of the Mergertransactions contemplated hereby, which shall include the power and by virtue authority to (i) negotiate, execute and deliver such waivers, consents and amendments under this Agreement and the consummation of the execution transactions contemplated hereby as Representative, in its sole discretion, may deem necessary or desirable, (ii) enforce and protect the rights and interests of the Equityholders, (iii) take any and all actions, or waive or refrain from enforcing any and all rights, which Representative believes are necessary, reasonable or appropriate under this Agreement and/or acceptance for and on behalf of the Equityholders including, consenting to, compromising or settling any benefits thereofsuch claims, including conducting negotiations with Parent, the Surviving Corporation and their respective Agents regarding such claims and any consideration payable pursuant other actions that Representative may consider necessary or proper or convenient in connection with, or to carry out the transactions contemplated by, this Agreement, each (iv) engage outside counsel, accountants and other advisors and incur such other expenses on behalf of the Securityholders irrevocably nominateEquityholders in connection with any matter arising under this Agreement and (v) collect, constitute hold and appoint disburse the RepresentativeIndemnity Escrow Amount, as of Adjustment Escrow Amount, the Expense Holdback Amount and, solely to the extent the matter set forth on Schedule 6.2(a) is not resolved and all claims related thereto satisfied or released prior to the Closing, as the true and lawful agent and attorney Special Indemnity Escrow Amount in fact of each Securityholder, for all purposes in connection accordance with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion Agreement. The grant of the Representative, and to do all things and to perform all acts, including authority provided for herein (1A) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding irrevocable and survive the death, incompetency, bankruptcy or liquidation of any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; Equityholder and (vB) shall survive the provisions consummation of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each SecurityholderMerger, and any references action taken by Representative pursuant to the authority granted in this Agreement to a Securityholder shall mean be effective and include the successors to binding on each Equityholder notwithstanding any contrary action of or direction from such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseEquityholder.
(db) The Representative will shall be entitled to receive reimbursement from, and be indemnified by, the Equityholders for certain expenses, charges and liabilities as provided below. In connection with this Agreement, and in exercising or failing to exercise all or any of the powers conferred upon Representative hereunder, (i) Representative shall incur no liability responsibility whatsoever to any Equityholders by reason of any act or omission performed or omitted hereunder, excepting only responsibility for any act or failure to act which represents willful misconduct in connection with its services pursuant to this Agreement bad faith and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The (ii) Representative shall not be liable for any action or omission pursuant entitled to rely on the advice of counsel, accountants or other independent experts experienced in the matter at issue, and any act or omission of Representative pursuant to such advice shall in no event subject Representative to liability to any Equityholder. The Securityholders will Each Equityholder shall indemnify, defend severally and hold harmless not jointly, based on such Equityholder's portion of the Merger Consideration, Representative from and against any and all lossesLosses, damages, liabilities, damages, claims, penalties, fines, forfeitures, actions, feesobligations, costs and expenses (expenses, including the reasonable attorneys', accountants' and other experts' fees and expenses the amount of counsel and experts and their staffs and all expense any judgment against them, of document locationany nature whatsoever, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement relating to any acts or omissions of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will indemnification shall not apply in the event of any lawsuit which finally adjudicates the liability of Representative hereunder for its willful misconduct in bad faith. Representative shall have the right to recover, at its sole discretion, from the Expense Holdback Amount, prior to any distribution to the Equityholders, any amounts to which it is entitled pursuant to the expense reimbursement and indemnification provisions of this Section 8.10(b). All of the indemnities, immunities and powers granted to Representative under this Agreement shall survive the Closing, resignation Effective Time or removal of the Representative or the any termination of this Agreement.
(ec) The Parent and the Surviving Corporation shall have the right to conclusively rely upon all actions taken or omitted to be taken by Representative may resign at pursuant to this Agreement, all of which actions or omissions shall be legally binding upon the Equityholders. Parent, Merger Sub and the Surviving Corporation are hereby relieved from any time upon 30 days’ liability to any Person (including any Equityholder) for any acts done by them in accordance with any written notice, and may be removed for any reason consent or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal instruction of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(fd) Pursuant Notwithstanding anything to Section 2.2(c)the contrary herein, at the Closing, Kardigan shall deposit, on behalf each of the SecurityholdersCompany, Merger Sub and Parent acknowledges and agrees that Representative is a party to this Agreement solely to perform certain administrative functions in connection with the Expense Fund Amount to an account designated by consummation of the transactions contemplated hereby. Accordingly, Representative (the “Expense Fund”)shall have no liability to, which will and shall not be used liable for any expenses incurred by Losses of, any of the Company, Parent or Merger Sub in connection with any obligations of Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby, in each case, in its capacity as Representative. The Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign , except to the Representative any ownership right that they may otherwise have had in any extent such interest or earnings. The Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available Losses shall be proven to its creditors in be the event of bankruptcy. As soon as practicable following the completion direct result of the Representative’s responsibilities, knowing and willful breach of this Agreement by Representative or willful misconduct in bad faith by Representative in connection with the Representative will deliver any remaining balance performance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closingits obligations hereunder.
Appears in 1 contract
Sources: Merger Agreement (HMS Holdings Corp)
Representative. For purposes of this Agreement, the Demi▇▇ ▇▇▇reholders, without any further act of any Demi▇▇ ▇▇▇reholder, shall be deemed to have consented to and approved (a) By the adoption use of the Merger, and by virtue Escrow Shares as collateral for Demi▇▇'▇ ▇▇▇ the Demi▇▇ ▇▇▇reholders' indemnification obligations under Section 10 of the execution Plan of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to Reorganization in the manner set forth in this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and appointment of Robe▇▇ ▇. ▇▇▇▇▇▇▇▇▇ relating to ▇▇▇ as the determination Representative of the Merger Consideration Demi▇▇ ▇▇▇reholders under this Agreement and as the attorney-in-fact and agent for and on behalf of each Demi▇▇ ▇▇▇reholder, and the determinationtaking by the Representative of any and all actions and the making of any decisions required or permitted to be taken by him under this Agreement (including, dispute and facilitating without limitation, the disbursement exercise of the Milestone Payments power to: authorize delivery to Worldtalk of Escrow Shares in satisfaction of claims by Worldtalk; agree to, negotiate, enter into settlements and compromises of and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims; resolve any claim made pursuant to Section 10 of the Plan of Reorganization; and take all actions necessary in the judgment of the Representative for the accomplishment of the foregoing) and (c) all of the other terms, conditions and limitations in the Escrow Agreement. Accordingly, the Representative has unlimited authority and power to act on behalf of each Demi▇▇ ▇▇▇reholder with respect to this Agreement and the disposition, settlement or other handling of all claims, rights or obligations arising under this Agreement, so long as all Demi▇▇ ▇▇▇reholders are treated in material respects in the same manner. The Demi▇▇ ▇▇▇reholders will be bound by all actions taken by the Representative in connection with this Agreement, and Worldtalk and the Escrow Agent shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able entitled to rely conclusively on the instructions and decisions any action or decision of the Representative as constituting the actions of the Demi▇▇ ▇▇▇reholders. In performing such functions, the Representative will not be liable to the determination Demi▇▇ ▇▇▇reholders in the absence of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend All actions and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered notices by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative hereunder shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred signed by the Representative. The Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign Representative may resign from such position, effective upon a new Representative being appointed to the Representative any ownership right that they may otherwise have had in any such interest or earnings. The Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon act as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.the
Appears in 1 contract
Representative. (a) By the adoption Each THL Entity hereby designates and appoints (and each Permitted Transferee of the Merger, each such THL Entities is hereby deemed to have so designated and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, appointed) each of the Securityholders irrevocably nominateAnth▇▇▇ ▇. ▇▇▇▇▇▇, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇ot▇ ▇▇▇▇▇▇▇▇ relating ▇▇▇ 71 76 Kent ▇▇▇▇▇▇, ▇▇ his attorney-in-fact with full power of substitution for each of them (the "THL Entities' Representative"), to serve as the determination representative of each such person to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such person and hereby acknowledges that the Merger Consideration THL Entities' Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by each such person. Each such person further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the determination, dispute death or incapacity of such person. Each such person hereby authorizes (and facilitating each such Permitted Transferee shall be deemed to have authorized) the disbursement of the Milestone Payments other parties hereto to disregard any notice or other action taken by such person pursuant to this AgreementAgreement except for the THL Entities' Representative. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the THL Entities' Representative and are and will be entitled and authorized to give notices only to the THL Entities' Representative for any notice contemplated by this Agreement to be given to any such person. A successor to the THL Entities' Representative may be chosen by a majority in interest of the THL Entities' Shareholders, provided that notice thereof is given by the new THL Entities' Representative to the Company and to each Non-THL Shareholder.
(b) Each DLJ Entity hereby designates and appoints (and each Permitted Transferee of each such DLJ Entities' is hereby deemed to have so designated and appointed) DLJ Merchant Banking II, Inc., as his attorney-in-fact with full power of substitution for each of them (the "DLJ Entities' Representative"), to serve as the representative of each such person to perform all such acts (other than voting of shares of Common Stock) as are required, authorized or contemplated by this 72 77 Agreement to be performed by such person and hereby acknowledges that the DLJ Entities' Representative shall be binding upon the Securityholdersonly person authorized to take any action so required, authorized or contemplated by this Agreement by each such person. Each such person hereby authorizes (and no Securityholder each such Permitted Transferee shall be deemed to have authorized) the right other parties hereto to objectdisregard any notice or other action taken by such person pursuant to this Agreement except for the DLJ Entities' Representative. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the DLJ Entities' Representative and are and will be entitled and authorized to give notices only to the DLJ Entities' Representative for any notice contemplated by this Agreement to be given to any such person. A successor to the DLJ Entities' Representative may be chosen by a majority in interest of the DLJ Entities' Shareholders, dissent, protest or otherwise contest provided that notice thereof is given by the samenew DLJ Entities' Representative to the Company and to each other DLJ Entity Shareholder.
(c) Each Securityholder agrees that: Merr▇▇▇ ▇▇▇c▇ ▇▇▇ity hereby designates and appoints (iand each Permitted Transferee of each such Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities is hereby deemed to have so designated and appointed) Kardigan and its Affiliates shall be able KECALP Inc., as his attorney-in-fact with full power of substitution for each of them (the "Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities Representative"), to rely conclusively on serve as the instructions and decisions representative of the Representative each such person to perform all such acts as to the determination of the Merger Consideration and the determinationare required, dispute and facilitating the disbursement of the Milestone Payments pursuant to authorized or contemplated by this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken performed by such Person in reliance upon person and hereby acknowledges that the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities Representative shall be conclusive the only person authorized to take any action so required, authorized or contemplated by this Agreement by each such person. Each such person further acknowledges that the foregoing appointment and binding upon all Securityholders and no Securityholder designation shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and be deemed to be coupled with an interest and shall survive the death or incapacity of such person. Each such person hereby authorizes (and each such Permitted Transferee shall be enforceable notwithstanding any rights or remedies that any Securityholder may deemed to have in connection with the transactions contemplated hereby; and (vauthorized) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and other parties hereby to disregard any references in this Agreement to a Securityholder shall mean and include the successors to notice or other action taken by such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services person pursuant to this Agreement except for the Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities Representative. The other parties hereto are and will be entitled to rely on any related agreements except action so taken or any notice given by the Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities Representative and are and will be entitled and authorized to give notices only to the extent resulting from its gross negligence or willful misconduct. The Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions notice contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that Agreement to be given to any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss person. A successor to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason chosen by approval from and by written consent of a majority in interest of the Stockholders; providedMerr▇▇▇ ▇▇▇c▇ ▇▇▇ities' Shareholders, however, in no event shall provided that notice thereof is given by the new Merr▇▇▇ ▇▇▇c▇ ▇▇▇ities Representative be removed without to the Stockholders having first appointed a new Representative who shall assume Company and to each other Merr▇▇▇ ▇▇▇c▇ ▇▇▇ity Shareholder.
(d) Each Management Shareholder hereby designates and appoints (and each Permitted Transferee of each such duties immediately upon the removal of RepresentativeManagement Shareholder is hereby deemed to have so designated and appointed) Paul ▇. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, ▇▇ his attorney-in-fact with full power of substitution for each of them (the "Management Representative"), to serve as the representative of each such appointment person to perform all such acts as are required, authorized or contemplated by this Agreement to be effective upon performed by such person and hereby acknowledges that the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ Management Representative shall be entitled the only person authorized to rely on take any action so required, authorized or contemplated by this Agreement by each such person. Each such person further acknowledges that the decisions foregoing appointment and actions designation shall be deemed to be coupled with an interest and shall survive the death or incapacity of such person. Each such person hereby authorizes (and each such Permitted Transferee shall be deemed to have authorized) the prior Representative as described herein.
(f) Pursuant other parties hereby to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount disregard any notice or other action taken by such person pursuant to an account designated by the Representative (the “Expense Fund”), which will be used this Agreement except for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.the
Appears in 1 contract
Sources: Investors' Agreement (Fisher Scientific International Inc)
Representative. (a) By At the adoption Closing, Silver Knot, LLC shall be constituted and appointed as the Representative. For purposes of the Merger, and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominateterm “Representative” shall mean the representative, constitute and appoint the Representative, as of the Closing, as the true and lawful agent agent, proxy and attorney in fact of each Securityholder, Parent for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in Escrow Agreement, with full power and authority on Parent’s behalf (i) to consummate the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreementstransactions contemplated herein, (2ii) waiving rightsto pay Parent’s expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (3iii) discharging liabilities to receive, give receipt and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative disburse any funds received hereunder on behalf of or to Parent and to holdback from disbursement any such funds to the Securityholders extent it reasonably determines may be necessary, (iv) to execute and deliver any certificates representing the Units and execution of such further instruments as provided hereunder Buyer shall reasonably request, (v) to execute and deliver on behalf of Parent all documents contemplated herein and any amendment or waiver hereto, (vi) to take all other actions to be binding taken by or on behalf of Parent in connection herewith, (vii) to negotiate, settle, compromise and otherwise handle all Securityholdersdisputes under this Agreement, including without limitation, disputes regarding any adjustment pursuant to Section 2.4, (viii) to waive any condition to the obligation of Parent to consummate the transactions contemplated herein, (ix) to give and Shareholder Representative Services LLC hereby accepts such appointment. This power receive notices on behalf of attorney Parent and (x) to do each and every act and exercise any and all rights which Parent is permitted or required to do or exercise under this Agreement. Parent, by executing this Agreement, irrevocably grants unto said attorney-in-fact and agent full power and authority hereby conferred is to do and perform each and every act and thing necessary or desirable to be done in connection with the transactions contemplated by this Agreement, as fully to all intents and purposes as Parent might or could do itself. Parent agrees that such agency and proxy are coupled with an interest, is granted in consideration are therefore irrevocable without the consent of the mutual covenants and agreements made herein, shall be irrevocable Representative and shall not be terminated by any act survive the liquidation, winding up and dissolution of any one or more Securityholders, or by operation of applicable law, whether by death or other eventParent.
(b) All decisions decisions, actions, consents and actions by the Representative, including any agreement between instructions of the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be final and binding upon the Securityholders, Parent and no Securityholder Parent shall not have the any right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of , except for fraud, bad faith or willful misconduct. Neither the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or nor any other actions required to be taken agent employed by the Representative under the Ancillary Agreements, and no Securityholder shall have incur any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required liability to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except Parent relating to the extent resulting from performance of its gross negligence duties hereunder except for actions or omissions constituting fraud, bad faith or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice have by reason of counselthis Agreement a fiduciary relationship in respect of Parent, except in respect of amounts actually received on behalf of Parent. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does shall not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf make any inquiry concerning either the performance or observance of any of the Securityholders terms, provisions or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination conditions of this Agreement.
(ec) The Parent shall cooperate with the Representative and any accountants, attorneys or other agents whom the Representative may resign at any time upon 30 days’ written noticeretain to assist in carrying out Representative’s duties hereunder. Parent shall reimburse the Representative for all costs and expenses, including professional fees, incurred.
(d) In the event that the Representative becomes unable to perform the Representative’s responsibilities or resigns from such position, Parent, or if Parent has been previously dissolved or liquidated the members of Parent holding, prior to such dissolution or liquidation, a majority of the issued and outstanding membership interests of Parent, shall select another representative to fill such vacancy and such substituted representative shall (i) be deemed to be the Representative for all purposes of this Agreement and (ii) exercise the rights and powers of, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions indemnity, reimbursement and actions of other benefits of, the prior Representative as described hereinRepresentative.
(fe) Pursuant to Section 2.2(c), at Upon the Closing, Kardigan Parent shall deposit, on behalf of deliver to the Securityholders, the Expense Fund Amount Representative an amount to an account designated be determined by the Representative Representative, at its reasonable discretion (the “Representative’s Expense Fund”), which will ) to be used for any held in trust to cover and reimburse the fees and expenses incurred by the RepresentativeRepresentative for its obligations in connection with this Agreement and the transactions contemplated herein. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion Any balance of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund not incurred for such purposes shall be returned to Kardigan for further distribution Parent, or if Parent has been dissolved or liquidated, to the Securityholders members of Parent in accordance with Section 2.3(d) (their respective ownership of the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received issued and voluntarily set aside by the Securityholders outstanding membership interests of Parent at the time of Closingsuch liquidation or dissolution.
Appears in 1 contract
Representative. (a) The Company hereby irrevocably appoints the Representative as each Unitholder’s true and lawful representative, attorney-in-fact and agent of the Unitholders in connection with the transactions contemplated by this Agreement and in any litigation or arbitration involving this Agreement. By its approval of the Merger and the adoption of the Merger, and by virtue of the execution of this Agreement and/or its acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each Unitholder hereby irrevocably approve and adopt the appointment of the Securityholders irrevocably nominateRepresentative. In connection therewith, constitute the Representative is authorized to do or refrain from doing all further acts and appoint things, and to execute all such documents as the RepresentativeRepresentative shall deem necessary or appropriate, as and shall have the power and authority to:
(i) act for some or all of the ClosingUnitholders with regard to all matters pertaining to this Agreement;
(ii) act for the Unitholders to transact matters relating to Proceedings;
(iii) execute and deliver all amendments, as waivers, ancillary agreements, certificates and documents that the true and lawful agent and attorney in fact of each Securityholder, for all purposes Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iv) receive funds, make payments of funds, and give receipts for funds;
(v) do or refrain from doing, on behalf of the Unitholders, any further act or deed that the Representative deems necessary or appropriate in the Representative’s discretion relating to the subject matter of this Agreement, in each case as fully and completely as the Unitholders could do if personally present;
(vi) give and receive all notices required to be given or received by the Unitholders under this Agreement;
(vii) give any related agreements, with full power in its, his or her name and on its, his or her behalf to act according written direction to the terms of this Agreement and Paying Agent or the Ancillary Agreements in the discretion Escrow Agent on behalf of the Representative, and to do all things and to perform all acts, including Unitholders; and
(1viii) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement receive service of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable process in connection with, the Ancillary Agreementswith any claims under this Agreement. Any All decisions and all such actions taken by of the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, Unitholders shall be binding upon the Securityholdersall Unitholders, and no Securityholder Unitholder shall have the right to object, dissent, protest or otherwise contest the same.
(b) The Representative shall act for the Unitholders on all of the matters set forth in this Agreement in the manner the Representative believes to be in the best interest of the Unitholders. The Representative is authorized to act on behalf of the Unitholders notwithstanding any dispute or disagreement among the Unitholders. In taking any action as Representative, the Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any person whom the Representative reasonably believes to be authorized thereunto. The Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Representative shall not be liable to any of the parties hereto or to any Unitholder for anything done, omitted or suffered in good faith by the Representative based on such advice. The 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 Representative shall not have any liability to any of the parties hereto or the Unitholders for any act done or omitted hereunder as Representative while acting in good faith. To the extent not satisfied from the Representative Account, the Representative shall be entitled to reimbursement, from the Unitholders for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Representative in such capacity, and for indemnification against any loss, liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Representative (except for those arising out of the Representative’s bad faith or willful misconduct), including the costs and expenses of investigation and defense of claims.
(c) Each Securityholder agrees that: The Representative shall have reasonable access to relevant information about the Company for purposes of performing the Representative’s duties and exercising the Representative’s rights hereunder; provided that the Representative shall treat confidentially and not disclose any nonpublic information from or about the Company to anyone except (i) Kardigan in connection with any disputes arising out of or in connection with this Agreement and (ii) as required by law or to its Affiliates employees, advisors or consultants and to the Unitholders, in each case who have a need to know such information, provided that such persons are bound by obligations of confidentiality to the Representative of at least as high a standard as those imposed on the Representative under this Agreement.
(d) In the event the Representative becomes unable to perform the Representative’s responsibilities hereunder or resigns from such position, the Unitholders (acting by a written instrument signed by Unitholders who held, as of immediately prior to the Effective Time, a majority (measured on an as-exercised and as-converted basis) of the then outstanding Units) shall select another representative to fill the vacancy of the Representative, and such substituted representative shall be able deemed to be the Representative for all purposes of this Agreement. The Representative may be removed only upon delivery of written notice to Parent signed by persons who, as of immediately prior to the Effective Time, held a majority (measured on an as-exercised and as-converted basis) of the then outstanding Units.
(e) For all purposes of this Agreement:
(i) Parent shall be entitled to rely conclusively on the instructions and decisions of the Representative as to the determination settlement of the Merger Consideration and the determinationany disputes or claims under this Agreement, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required or permitted to be taken by the Representative under the Ancillary Agreementshereunder, and no Securityholder party hereunder or any Unitholder shall have any cause of action against Kardigan or its Affiliates Parent for any action taken by such Person Parent in reliance upon the instructions or decisions of the Representative; ;
(ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 9.19 are independent and severable, are irrevocable (subject only to Section 9.19(e)) and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder Unitholder may have in connection with the transactions contemplated herebyby this Agreement; and and
(vi) the provisions of this Section 1.4 9.19 shall be binding upon the executors, heirs, legal representatives representatives, personal representatives, successor trustees and successors of each SecurityholderUnitholder, and any references in this Agreement to a Securityholder Unitholder shall mean and include the successors to such Securityholder’s the rights of each applicable Unitholder hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) By the adoption of the Merger, Effective upon and by virtue of the execution of this Agreement and/or acceptance Member Approval, and without any further act of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders Members or Optionholders, the Representative is hereby irrevocably nominate, constitute and appoint the Representative, as of the Closing, appointed as the true and lawful agent representative, agent, proxy, and attorney in fact of each Securityholder, (coupled with an interest) for all the Members and Optionholders for all purposes under this Agreement including the full power and authority on the Members’ and Optionholders’ behalf, subject to the terms and conditions of this Agreement: (i) to consummate the transactions contemplated under this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (ii) to negotiate claims and disputes arising under, or relating to, this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (including, for the avoidance of doubt, the adjustment of Closing Cash Proceeds contemplated by Section 3.03), (iii) to receive and disburse to, or caused to be received or disbursed to, any Member or Optionholder any funds received on behalf of such Member or Optionholder under this Agreement (including, for the avoidance of doubt, any portion of the Merger Consideration) or otherwise, (iv) to withhold any amounts received on behalf of any Member or Optionholder pursuant to this Agreement (including, for the avoidance of doubt, any portion of the Merger Consideration) or to satisfy (on behalf of the Members and Optionholders) any and all obligations or liabilities of any Member, Optionholder or the Representative in the performance of any of their commitments hereunder (including, for the avoidance of doubt, the satisfaction of payment obligations (on behalf of the Members and Optionholders) in connection with the adjustment of Closing Cash Proceeds contemplated by Section 3.03), (v) to execute and deliver any amendment or waiver to this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of any Member or Optionholder), (vi) to receive and disburse to, or cause to be received or disbursed to, any individual pursuant to any incentive compensation agreement providing for a transaction bonus, in effect as of the Closing and (vii) to take all other actions to be taken by or on behalf of any Member or Optionholder in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representativeother agreements, instruments, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments documents contemplated by, hereby or deemed advisable executed in connection with, the Ancillary Agreementsherewith. Any Such agency and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is proxy are coupled with an interest, is granted in consideration are therefore irrevocable without the consent of the mutual covenants and agreements made herein, shall be irrevocable Representative and shall not be terminated by any act survive the death, incapacity, bankruptcy, dissolution or liquidation of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) each Member and Optionholder. All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholderseach Member and Optionholder, and no Securityholder Member or Optionholder 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.
(b) Effective upon and by virtue of the Member Approval, and without any further act of any of the Members or Optionholders, the Representative and its Non-Recourse Parties shall be indemnified, held harmless and reimbursed by each Member and Optionholder severally (based on each Member’s and Optionholder’s Allocation Percentage), and not jointly, against all costs, expenses (including reasonable attorneys’ fees), judgments, fines and 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 (including, for the avoidance of doubt, the satisfaction of payment obligations (on behalf of the Members and Optionholders) 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 Members and Optionholders (and, not for the avoidance, on behalf of the Representative in any other capacity, as a Member or otherwise).
(c) Each Securityholder agrees that: (i) Kardigan and Neither the Representative nor any of its Affiliates Non-Recourse Parties shall be able incur any liability to rely conclusively on any Member or Optionholder by virtue of the instructions and decisions failure or refusal of the Representative as or any of its Non-Recourse Parties for any reason to consummate the transactions contemplated hereby or relating to the determination 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 Member or Optionholder, regardless of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement legal theory under which such liability or any other actions required obligation may be sought to be taken by 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 under the Ancillary Agreements, and no Securityholder shall have pays or causes to be paid any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative amounts (on behalf of the SecurityholdersMembers and Optionholders) in connection with any obligation or liability of a Member or Optionholder 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 with each Securityholder; (iii) all actionsso reimbursed from the Representative Holdback Amount, decisions and instructions of the Representative shall be conclusive indemnified, held harmless and binding upon reimbursed by each Member and Optionholder severally (based on each Member’s and Optionholder’s Allocation Percentage), and not jointly, for such amount(s)). The Representative may, in its sole and absolute discretion, distribute, or caused to be distributed, any or all Securityholders of the funds received or held by it on behalf of the Members and Optionholders (including, for the avoidance of doubt, any portion of the Merger Consideration) to one or more Members or Optionholders at any time after the date hereof, which such distribution(s) of funds may be different (i.e., with respect to amount, timing, conditionality or otherwise) for each Member and Optionholder. 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 caused to be distributed, all remaining funds held by it on behalf of the Members and Optionholders to the Members and Optionholders; provided, that to ensure compliance with Treasury Regulations Section 1.409A-3(i)(5)(iv), the Optionholders shall not be entitled to receive any payment, and no Securityholder 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 other Members 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 for any cause of loss to any Member or Optionholder for any action against 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 the Purchaser or the Merger Sub or the Surviving Entity.
(f) Except as may have been expressly and specifically agreed to in writing by a Member or Optionholder, on the one hand, and ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, on the other hand, and except for the Representative; , Sun Capital Partners, Inc. and their respective Affiliates (ivi) the provisions of this Section 1.4 are independent ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP has not and severableis not representing, are irrevocable and coupled with an interest and shall not be enforceable notwithstanding deemed to have represented any rights Member or remedies that any Securityholder may have Optionholder in connection with the transactions contemplated hereby; , and (vii) the provisions of this Section 1.4 shall be binding upon the executors▇▇▇▇▇▇, heirs, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP has not and is not providing any advice or counsel (including legal representatives and successors of each Securityholderadvice or counsel), and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for deemed to have provided counsel or advice, to any action Member or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into Optionholder in connection with the transactions contemplated by this Agreementhereby. Each Member and Optionholder agrees that ▇▇▇▇▇▇, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of ▇▇▇▇▇ & Bockius LLP may represent the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss Sun Capital Partners, Inc., and their respective Affiliates in any matter related to the extent attributable transaction completed hereby including matters which maybe adverse to such fraudMember or Optionholder and, bad faithin furtherance thereof, gross negligence each Member and Optionholder consents to, and waives, without limitation, restriction or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) condition of any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrarykind, any restrictions actual or limitations on liability potential conflict or indemnification obligations of, other actual or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent potential objection with respect to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇ & ▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion LLP’s representation of the Representative’s responsibilities, the Representative will deliver Sun Capital Partners, Inc., and their respective Affiliates in any remaining balance of the Expense Fund to Kardigan for further distribution matter related to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closingtransaction completed hereby.
Appears in 1 contract
Sources: Merger Agreement (Hubbell Inc)
Representative. (ai) By Berliner hereby irrevocably appoints New Valley as its agent hereunder (the adoption of the Merger, and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection "Agent") with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according respect to the terms assertion or contest of indemnity claims hereunder and authorizes New Valley to take such actions on its behalf and to exercise such powers as are reasonably incidental thereto.
(ii) In acting as Agent, New Valley shall have the rights and powers in its capacity as a Seller as stated in this Agreement and the Ancillary Agreements other Transaction Documents and may exercise the same as though it were not the Agent, and may engage in any kind of business with the discretion Purchaser or any Subsidiary or other Affiliate thereof as if it were not the Agent hereunder.
(iii) The Agent shall not have any duties or obligations except those expressly set forth in this Section 7.3(d). Without limiting the generality of the Representativeforegoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, and (c) the Agent shall not have any duty to do all things and to perform all actsdisclose, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by liable for the failure to disclose, any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ information relating to the determination Purchaser or any of the Merger Consideration and the determination, dispute and facilitating the disbursement its subsidiaries that is communicated to or obtained by it or any of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or in any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconductcapacity. The Representative Agent shall not be liable for any action taken or omission pursuant to the advice of counselnot taken by it. The Securityholders will indemnifyAgent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of warranty or representation made in or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into Transaction Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection with herewith or therewith, (iii) the transactions contemplated by performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, or (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; providedTransaction Document or any other agreement, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered instrument or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreementdocument.
(eiv) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ Agent shall be entitled to rely on upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the decisions proper Person. The Agent also may rely upon any statement made to it orally or by telephone and actions believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for the Purchaser), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of the prior Representative as described hereinany such counsel, accountants or experts.
(fv) Pursuant to Section 2.2(c), at The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Closing, Kardigan shall deposit, on behalf Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Affiliates. The exculpatory provisions of the Securityholderspreceding paragraphs shall apply to any such sub-agent and to the Affiliates of the Agent and any such sub-agent.
(vi) To the extent that the Purchaser fails to pay any such amount, Berliner agrees to pay to the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any Agent 19.9% of all out-of-pocket expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on Agent (including the Expense Fund fees, expenses and irrevocably transfer disbursements of its Affiliates and assign to the Representative any ownership right that they may otherwise have had its Representatives) in any such interest or earnings. The Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon capacity as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closingsuch.
Appears in 1 contract
Sources: Stock Purchase Agreement (Gbi Capital Management Corp)
Representative. (a) By the adoption of the Merger, and by virtue of the execution of executing this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreementand the Transaction Documents, each of the Securityholders irrevocably nominate, constitute CanvasRx Shareholders hereby appoints and appoint constitutes ▇▇▇▇▇ ▇▇▇▇ (together with his/her permitted successors) (the "Representative, ") as of the Closing, as the his/her/its true and lawful agent and attorney attorney-in-fact to act for and on behalf of such Party for the purpose of taking any and all actions by such Party specified in or contemplated by this Agreement or any of the Transaction Documents, including as agent and attorney-in-fact of each Securityholder, for all purposes such party:
(i) in connection with this Agreement, and any related agreements, with full power in its, his amendment or her name and on its, his or her behalf to act according to the terms waiver of any provision of this Agreement and or the Ancillary Agreements in the discretion Transaction Documents;
(ii) with respect to any other matter that requires an action of any of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement CanvasRx Shareholders under this Agreement or any of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other eventTransaction Documents.
(b) All decisions In his capacity as such, the Representative shall be authorized, at his sole discretion to:
(i) give and receive notices and communications (on behalf of any of the CanvasRx Shareholders) relating to this Agreement or any of the transactions and other matters contemplated hereby;
(ii) if applicable, authorize deliveries on behalf of the CanvasRx Shareholders to the Aurora Company of cash from the CanvasRx Shareholders in satisfaction of Claims asserted by the Aurora Companies;
(iii) object to any Claims made by the Aurora Companies against the CanvasRx Shareholders;
(iv) consent or agree to, negotiate, enter into settlements and compromises of, and/or agree to arbitration and comply with orders of courts and awards of arbitrators with respect to, any Claims (other than any Claim by the Aurora Companies against a CanvasRx Shareholder for fraud, intentional misrepresentation or wilful breach), including with respect to any dispute between the Aurora Companies and a CanvasRx Shareholders relating to this Agreement, the Transaction Documents or the transactions contemplated hereby or thereby; and
(v) 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.
(c) Any decision, act, consent or instruction of the Representative under this Agreement or the Transaction Documents shall constitute a decision of each of the CanvasRx Shareholders and shall be final, binding and conclusive upon each of the CanvasRx Shareholders, and the Aurora Companies shall be entitled to rely upon any such decision, act, consent or instruction of the Representative as being the decision, act, consent or instruction of each of the CanvasRx Shareholders. The Representative shall not bear any personal liability in connection with his actions as the Representative, except for personal liability arising out of or in connection with wilful breach, intentional misrepresentation or fraud by the Representative.
(d) The limited power of attorney granted hereby is coupled with an interest and shall:
(i) survive and not be affected by the subsequent death, including incapacity, disability bankruptcy, liquidation or dissolution as applicable, of any agreement between CanvasRx Shareholder, and
(ii) extend to each of the CanvasRx Shareholders' successors, permitted assigns, heirs, executors and legal representatives, as applicable.
(e) The Representative may at any time resign from his position upon delivery of notice in writing to the Aurora Companies and each of the CanvasRx Shareholders, which resignation shall be effective only upon the appointment or deemed appointment of a replacement Representative in accordance with the terms hereof.
(f) The Representative may be replaced from time to time by a Majority of the CanvasRx Shareholders upon not less than ten (10) days' prior written notice to the Aurora Companies and only with the Aurora Companies' prior written consent, which consent shall not be unreasonably withheld; provided, however, that no removal of the Representative and shall be effective until such time as a replacement Representative has been appointed in accordance with the terms hereof. For the purposes hereof.
(g) If ▇▇▇▇▇ ▇▇▇▇ resigns from his position as the Representative, or is unable or unwilling to serve as the Representative for any reason, and no other representative is elected in writing by the Majority of the CanvasRx Shareholders prior to such resignation taking effect, then ▇▇▇▇▇▇ relating to the determination Fleiman shall, effective as of the Merger Consideration and date on which ▇▇▇▇▇ ▇▇▇▇ ceased as the determinationRepresentative, dispute and facilitating be deemed to be the disbursement substituted Representative for all purposes of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(ch) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions The each of the CanvasRx Shareholders, jointly and not severally, hereby agree to hold the Representative as to the determination harmless each of the Merger Consideration CanvasRx Shareholders, in accordance with such CanvasRx Shareholder's pro rata interest as forth in the Direction, agree to indemnify and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) Losses arising out of or in connection with any act or failure to act of the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with Representative hereunder, except to the transactions contemplated by this Agreement, in each case as extent that such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to Losses have been caused by the bad faithwilful breach, fraud, gross negligence intentional misrepresentation or willful misconduct of fraud by the Representative, . Each CanvasRx Shareholder hereby acknowledges and agrees that the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund foregoing hold harmless and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will indemnity shall survive the Closing, Closing and shall survive the resignation or removal of the Representative. The Representative may arrange to receive reimbursement directly from the CanvasRx Shareholders for any and all expenses, charges and liabilities, including attorneys' fees, reasonably incurred by Representative in the performance or the termination discharge of his rights and obligations under this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) By the adoption of the Merger, and by virtue of the execution Written Consent, Support Agreement or the delivery of a Letter of Transmittal, and/or other approval of this Agreement and/or acceptance by any Stockholder, and without any further action by any such Stockholder or the Company, the Representative is hereby irrevocably appointed, authorized and empowered to act as a representative, for the benefit of any benefits thereofall Stockholders, and as the exclusive agent and true and lawful attorney-in-fact of the Stockholders under this Agreement and the Escrow Agreement, including any consideration payable pursuant with all power and authority to this Agreement, each take or refrain from taking action in connection with and to facilitate the consummation of the Securityholders irrevocably nominateMerger and the other transactions contemplated by this Agreement and the other Transaction Agreements, constitute which shall include the power and appoint authority, including power of substitution:
(i) to execute and deliver such Transaction Agreements (with such modifications or changes therein as to which the Representative, as of the Closingin its sole discretion, shall have consented) and to agree to such amendments or modifications thereto as the true Representative, in its sole discretion, determines to be desirable;
(ii) to execute and lawful agent deliver such amendments, waivers, Consents, notices and attorney in fact of each Securityholder, for all purposes instructions in connection with this Agreement and any other Transaction Agreement, and any related agreements, with full power in its, his or her name the consummation of the Merger and on its, his or her behalf to act according to the terms of other transactions contemplated by this Agreement and the Ancillary other Transaction Agreements in the discretion of as the Representative, and to do all things and to perform all actsin its sole discretion, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, may deem necessary or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.desirable;
(biii) All decisions to administer and actions by the Representativeresolve, including settle or compromise any agreement between the Representative and disputes with ▇▇▇▇▇▇▇▇ relating , on the Stockholders’ behalf;
(iv) to take any and all actions that the determination Representative believes are necessary or appropriate under this Agreement or the other Transaction Agreements or to effectuate the Merger or the other transactions contemplated hereby or thereby, for and on behalf of Stockholders and to resolve any dispute with Parent or any of its Affiliates over any aspect of this Agreement or the other Transaction Agreements and, on behalf of the Merger Consideration and the determinationStockholders, dispute and facilitating the disbursement to enter into any agreement to effectuate any of the Milestone Payments pursuant foregoing that shall have the effect of binding the Stockholders as if the Stockholders had personally entered into such an agreement; provided, that no such failure to act on the part of the Representative, except as otherwise provided in this Agreement, shall be binding upon deemed a waiver of any such right or interest by the SecurityholdersRepresentative or by Stockholders unless such waiver is in writing signed by the waiving party or by the Representative;
(v) to take or refrain from taking action as it determines to be applicable in connection with all moneys and other proceeds and property payable to the Representative or the Stockholders as described herein;
(vi) to, after the Closing, determine, from time to time, the allocation and no Securityholder shall have distribution of any amounts payable to the right Stockholders and amend the Closing Spreadsheet accordingly; and
(vii) to objecttake or refrain from taking the foregoing actions, dissentmake, protest execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, unit and/or stock powers, letters and other writings, and, in general, to do or otherwise contest refrain from doing any and all things and to take any and all action that the sameRepresentative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement, the Transaction Agreements and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith.
(cviii) Each Securityholder agrees that: (i) Kardigan Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Stockholders, except as expressly provided herein, in the Escrow Agreement and its Affiliates shall be able to rely conclusively on in the instructions Representative Engagement Agreement, in the Paying Agent Agreement and decisions for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative shall act as a representative and agent only, and shall not owe any fiduciary duty to the determination Stockholders or any Party/Person.
(b) Certain Stockholders have entered into an engagement agreement (the “Representative Engagement Agreement”) with the Representative to provide direction to the Representative in connection with its services under this Agreement, the Escrow Agreement, the Paying Agent Agreement and the Representative Engagement Agreement (such Stockholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Merger Consideration and Advisory Group (collectively, the determination, dispute and facilitating “Representative Group”) will incur Liability of any kind or otherwise be liable to any Stockholder for any action or failure to act in connection with the disbursement acceptance or administration of the Milestone Payments pursuant Representative’s responsibilities hereunder, under the Escrow Agreement, under the Paying Agent Agreement or under the Representative Engagement Agreement, including with respect to any action or omission by the Representative in connection with this Agreement or any other actions required to be taken by the Representative under the Ancillary AgreementsTransaction Agreement, except and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence such action or failure to act constitutes willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will Each Stockholder shall indemnify, defend and hold harmless harmless, on a pro rata basis (based on such Stockholder’s Pro Rata Share), the Representative Group from and against any and all losses, liabilitiesLiabilities, claims, damages, claimsfees, penaltiescosts, judgments, fines, forfeitures, actions, fees, costs amounts paid in settlement and expenses (including the fees and expenses of counsel and experts and their staffs any and all expense of document locationexpenses whatsoever reasonably incurred in investigating, duplication and shipment) preparing or defending against any litigation, commenced or threatened or any claims whatsoever), (collectively, the “Representative LossesExpenses”) arising out of or in connection with the acceptance or administration of the Representative’s enforcement of its rights duties hereunder, under this the Escrow Agreement, under the Paying Agent Agreement or under the Representative Engagement Agreement, including any other agreement entered into arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the transactions contemplated by this Agreement, in each case as such acts or omissions of the Representative Loss is suffered hereunder or incurredotherwise; provided, that in the event that any such indemnified Representative Loss Expense is finally adjudicated to have been primarily caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders Stockholders the amount of such indemnified Representative Loss to the extent Expense attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses Expenses may be recovered by the Representative first, from (i) the funds in the Expense Fund and (ii) Fund, second, from any other distribution of funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; providedStockholders at the time of distribution, that while the Representative may be paid and third, directly from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwiseStockholders. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability Liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders of Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunderGroup under this Section. The foregoing indemnities will In the event of any indemnification hereunder and without limitation of the other rights and remedies of the Representative Group hereunder or otherwise, upon written notice from the Representative to the Stockholders as to the existence of a deficiency toward the payment of any Representative Expenses, each Stockholder shall promptly deliver to the Representative full payment of his, her or its ratable share of the amount of such deficiency (based on such Stockholder’s Pro Rata Share).
(c) All of the indemnities, immunities and powers granted to the Representative Group under this Agreement shall survive the ClosingClosing Date, any termination of this Agreement or any other Transaction Agreement, and/or any resignation or removal of the Representative or any member of the termination Advisory Group. Parent and ▇▇▇▇▇▇ Sub shall have the right to conclusively rely upon all actions taken or omitted to be taken by the Representative pursuant to this Agreement and any other Transaction Agreement and the transactions contemplated hereby and thereby, all of which actions or omissions shall be legally binding upon all Stockholders and each such Stockholder’s successors as if expressly confirmed and ratified in writing by each such Stockholder. All defenses which may be available to any Stockholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement, the Paying Agent Agreement or the Representative Engagement Agreement are waived. The powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Stockholders and shall be binding on any successor thereto, (ii) shall survive the Closing and (iii) shall survive the delivery of an assignment by any Stockholder of the whole or any fraction of his, her or its interest in the Escrow Account.
(d) The Representative may resign at any time. The Representative may be replaced at any time by Stockholders representing a Pro Rata Share in excess of 50% subject to Parent's prior written consent. If no successor to the Representative shall have been appointed, and shall have accepted such appointment, within 30 days after the Representative gives notice of resignation, then the Advisory Group, may, on behalf of the Stockholders appoint its successor. Upon the acceptance of its appointment as the Representative hereunder by such successor, such successor shall thereupon succeed to and become vested with all the rights and duties of the Representative. After the Representative’s resignation or removal hereunder, the provisions of this Agreement shall continue to inure to its benefit and without limitation of the Representative Group’s continuing rights and remedies with respect to the Stockholders hereunder, under the Representative Engagement Agreement and otherwise. Notwithstanding anything to the contrary in this Agreement or any Transaction Agreement, none of Parent, Merger Sub or the Surviving Entity, or any of their respective Affiliates, shall have any Liability whatsoever to any Stockholder in connection with or related to this Section 9.14.
(e) The Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement, the Paying Agent Agreement, the Representative Engagement Agreement or the transactions contemplated hereby or thereby. Furthermore, the Representative shall not be required to take any action unless the Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and liabilities which may resign at be incurred by the Representative in performing such actions. If Parent is entitled to recovery of any time upon 30 days’ written noticeamount exceeding the available balance of the Escrow Account, it must proceed directly against each Stockholder from whom it seeks recovery. The Representative shall have no role, nor shall Parent involve it, in the recovery effort. The foregoing includes, but is not limited to, recovery for claims that are not limited by the Escrow Account, and may be removed for fee shifting and/or prevailing party provisions in connection with any reason dispute. Absent gross negligence or no reason willful misconduct by approval the Representative that is finally adjudicated by a court of competent jurisdiction, Parent shall never seek to collect or recover any amount directly from and by written consent of a majority in interest the Representative, rather than from any available amount of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of RepresentativeEscrow Account. Notice of such vote or a copy of the written consent appointing such new The Representative shall be sent to ▇▇▇▇▇▇▇▇entitled to: (i) rely upon the Closing Spreadsheet, such appointment (ii) rely upon any signature believed by it to be effective upon the later genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the date indicated in such consent applicable Stockholder or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described hereinother party.
(f) Pursuant to Section 2.2(c), at Upon the Closing, Kardigan Parent shall deposit, on behalf of wire to the Securityholders, Representative $2,500,000 (the “Expense Fund Amount”). The Expense Fund Amount to an account designated shall be held by the Representative in a segregated client account and shall be used (i) for the purposes of paying directly or reimbursing the Representative for any Representative Expenses incurred pursuant to this Agreement, the Escrow Agreement, the Paying Agent Agreement or the Representative Engagement Agreement, or (ii) as otherwise determined by the Advisory Group (the “Expense Fund”). The Representative is not providing any investment supervision, which will be used recommendations or advice and shall have no responsibility or liability for any expenses incurred by loss of principal of the RepresentativeExpense Fund other than as a result of its gross negligence or willful misconduct. The Securityholders Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund and has no tax reporting or income distribution obligations. The Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they such interest. Subject to Advisory Group approval, the Representative may contribute funds to the Expense Fund from any consideration otherwise have had in any such interest or earnings. The Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available distributable to its creditors in the event of bankruptcyStockholders. As soon as practicable following reasonably determined by the completion of Representative that the Representative’s responsibilitiesExpense Fund is no longer required to be withheld, the Representative will deliver any shall distribute the remaining balance of the Expense Fund (if any) to Kardigan the Paying Agent for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of ClosingStockholders.
Appears in 1 contract
Sources: Merger Agreement (Ondas Inc.)
Representative. (a) By The Shareholders each irrevocably initially appoints ▇▇▇▇▇▇▇ ▇▇▇▇▇ as the adoption Representative with power of designation and assignment as its true and lawful proxy and attorney-in-fact and agent with full power of substitution, to act solely and exclusively on behalf of, and in the name of, each Shareholder with the full power, without the consent of the MergerShareholders, and by virtue to exercise the powers of the execution Representative under the provisions of this Agreement and/or acceptance of any benefits thereof, or the Ancillary Agreements (including any consideration payable pursuant the Escrow Agreement) and to this Agreement, each take all actions necessary or appropriate in the judgment of the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes Representative in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements (including the Escrow Agreement), which shall include the power and authority to (i) amend, modify, waive or provide consent with respect to, any provision of this Agreement or the Ancillary Agreements (including the Escrow Agreement), (ii) to execute, deliver and accept such waivers and consents and to endorse and deliver any and all notices, documents, certificates or other papers to be delivered in connection with this Agreement and the discretion of Ancillary Agreements (including the Escrow Agreement), (iii) to disburse any funds received hereunder or under the Escrow Agreement to each Shareholders, and (iv) to consummate the transactions contemplated hereby and thereby as the Representative, and to do all things and to perform all actsin its sole discretion, including (1) amending may deem necessary or desirable. In the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement event of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, death or deemed advisable in connection withincapacity of ▇▇▇▇▇▇▇ ▇▇▇▇▇, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders Shareholders each irrevocably appoints ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between without the Representative consent of the Shareholders, and ▇▇▇▇▇▇▇▇ relating to ▇▇▇▇▇’▇ appointment as the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, Representative shall be binding effective upon notification in writing to Buyer. In any Third Party Defense in which more than one Shareholder is an Indemnitor, the SecurityholdersRepresentative shall act on behalf of all Shareholder Indemnitors, and no Securityholder shall have it being agreed that in the right event of a post-Closing Action, Buyer is entitled to objectdiscovery of documents from the Shareholders relevant to such Action as if such Shareholders were parties to such Action, dissent, protest or otherwise contest notwithstanding the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions appointment of the Representative as the sole intermediary for other purposes. The Buyer and the Buyer Indemnitees, if applicable, will be entitled to the determination rely exclusively upon any notices and other acts of the Merger Consideration and the determination, dispute and facilitating the disbursement Representative as being legally binding acts of the Milestone Payments pursuant to this Agreement or any other actions required to be taken Shareholders individually and collectively. The appointment and power of attorney granted by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required Shareholders to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and deemed coupled with an interest and all authority conferred hereby shall be enforceable notwithstanding irrevocable whether by death or incapacity of any rights the Shareholders or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions occurrence of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered event or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreementevents.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) By the adoption of the Merger, and by virtue of the execution and delivery of a Joinder Agreement, and the adoption of this Agreement and/or acceptance and approval of any benefits thereof, including any consideration payable pursuant to this Agreementthe Mergers by the Stockholders, each of the Securityholders irrevocably nominate, constitute Indemnifying Parties shall be deemed to have agreed to appoint Fortis Advisors LLC as its exclusive agent and appoint the Representative, as of the Closingattorney-in-fact, as the true Representative for and lawful agent on behalf of the Indemnifying Parties to give and attorney receive notices and communications in fact respect of each Securityholderindemnification claims under this Agreement to be recovered against the Escrow Fund, for all purposes to authorize payment to any Indemnified Party from the Escrow Fund in connection with this Agreementsatisfaction of any indemnification claims hereunder by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to any related agreementssuch indemnification claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with full power orders of courts and awards of arbitrators with respect to, any such indemnification claim by any Indemnified Party hereunder against any Indemnifying Party or by any such Indemnifying Party against any Indemnified Party or any dispute between any Indemnified Party and any such Indemnifying Party, in itseach case relating to this Agreement or the Transactions, his and to take all other actions that are either (i) necessary or her name and on its, his appropriate in the judgment of the Representative for the accomplishment of the foregoing or her behalf to act according to (ii) specifically mandated by the terms of this Agreement and Agreement. Notwithstanding the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection withforegoing, the Ancillary Agreements. Any and all such actions taken by the Representative shall have no obligation to act on behalf of the Securityholders Indemnifying Parties, except as expressly provided hereunder herein, in the Escrow Agreement and in the Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The Representative may resign at any time or such agency may be changed by the Stockholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity 84 of the substituted agent. Notwithstanding the foregoing, in the event of a resignation of the Representative or other vacancy in the position of Representative, such vacancy may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration required of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one Representative. Notices or more Securityholders, communications to or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between from the Representative after the Closing shall constitute notice to or from the Indemnifying Parties. The powers, immunities and ▇▇▇▇▇▇▇▇ relating rights to indemnification granted to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees thatRepresentative Group hereunder: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding irrevocable and survive the death, incompetence, bankruptcy or liquidation of any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; Indemnifying Party and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholderon any successor thereto, and (ii) shall survive the delivery of an assignment by any references Indemnifying Party of the whole or any fraction of his, her or its interest in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseEscrow Fund.
(db) The Representative will incur no shall be entitled to: (i) rely upon the Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Indemnifying Party or other party. A decision, act, consent or instruction of the Representative, including an amendment of any provision of this Agreement pursuant to Section 10.2 hereof, shall constitute a decision of the Indemnifying Parties and shall be final, binding and conclusive upon the Indemnifying Parties and each such Indemnifying Party’s successors as if expressly confirmed in writing by such Indemnifying Party, and all defenses which may be available to any Indemnifying Party to contest, negate, or disaffirm the actions of the Representative taken in good faith under this Agreement are waived. Parent may rely upon any such decision, act, consent or instruction of the Representative as being the decision, act, consent or instruction of the Indemnifying Parties. Parent is hereby relieved from any liability to any person for any acts done by Parent in accordance with such decision, act, consent or instruction of the Representative.
(c) Certain Indemnifying Parties have entered into an engagement agreement (the “Representative Engagement Agreement”) with the Representative to provide direction to the Representative in connection with its services pursuant to under this Agreement, the Escrow Agreement and the Representative Engagement Agreement (such Indemnifying Parties, including their individual representatives, collectively the “Advisory Group”). Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees nor any related agreements except to member of the extent resulting from its gross negligence or willful misconduct. The Advisory Group (collectively, the “Representative Group”) shall not be liable for any action act done or omission pursuant to omitted hereunder, under the advice of counselEscrow Agreement and under the Representative Engagement Agreement as Representative while acting in good faith. The Securityholders will indemnify, Indemnifying Parties shall indemnify the Representative Group and defend and hold harmless the Representative from and Group harmless against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs costs, judgments, amounts paid in settlement and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the acceptance or administration of the Representative’s enforcement of its rights duties hereunder, under this the Representative Engagement Agreement or under any other agreement entered into agreements ancillary hereto, including the fees and expenses of any legal counsel or experts retained by the Representative, costs incurred in connection with seeking recovery from insurers, and any amounts required to be paid by the transactions contemplated by this Agreement, Representative to the Escrow Agent pursuant to the Escrow Agreement (“Representative Expenses”) in each case as such Representative Loss Expense is suffered or incurred; provided, that in the event that any such Representative Loss Expense is finally adjudicated to have been directly caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders Holders the amount of such indemnified Representative Loss Expense to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. If not paid directly to the Representative Losses by the Indemnifying Parties, any such Representative Expenses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement amounts in the Escrow Fund at such time as such remaining amounts would otherwise then be distributable to the SecurityholdersIndemnifying Parties (which, for the avoidance of doubt, shall not include any amounts that remain held in the Escrow Fund subject to the resolution of any pending indemnification claims); provided, that while this section allows the Representative may to be paid from the aforementioned sources of fundsExpense Fund and the Escrow Fund, this does not relieve the Securityholders Indemnifying Parties from their obligation to promptly pay such Representative Losses 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 Securityholders Indemnifying Parties or otherwise. Notwithstanding anything in this Agreement to The Indemnifying Parties acknowledge and agree that the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities and immunities will survive the Closing, resignation or removal of the Representative or any member of the Advisory Group and the Closing and/or the termination of this Agreement and the Escrow Agreement.
(e) . The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, use the Expense Fund Amount in order to an account designated by fund all Representative Expenses. Following the Expiration Date, the resolution of all indemnification claims made under this Agreement and the satisfaction of all such indemnification claims, the Representative (shall have the “Expense Fund”), which will be used for any expenses right to recover Representative Expenses incurred by in excess of the Representative. The Securityholders will not receive any interest or earnings on amounts in the Expense Fund and irrevocably transfer and assign not previously recovered directly from the Indemnifying Parties from the Escrow Fund, prior to any distribution to the Representative any ownership right that they may otherwise have had in Indemnifying Parties, and prior to any such interest distribution, shall deliver to the Escrow Agent a certificate setting forth the Representative Expenses actually incurred and not previously recovered. For the avoidance of doubt, while this section allows the Representative to be paid from the Escrow Fund, this Section 8.7(c) shall not limit the obligation of any Indemnifying Party to promptly pay such Representative Expenses as they are incurred, to the extent the Expense Fund is insufficient or earningsunavailable. The Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion A decision, act, consent or instruction of the Representative’s responsibilities, including an amendment, extension or waiver of this Agreement pursuant to Section 10.2 or Section 10.3, shall constitute a decision of the Indemnifying Parties and shall be final, conclusive and binding upon the Indemnifying Parties; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Representative will deliver any remaining balance as being the decision, act, consent or instruction of the Expense Fund Indemnifying Parties. The Escrow Agent and Parent are hereby relieved from any liability to Kardigan any person for further distribution to the Securityholders any acts done by them in accordance with Section 2.3(d) (such decision, act, consent or instruction of the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of ClosingRepresentative.
Appears in 1 contract
Representative. (a) By the adoption of the Merger, and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of the Securityholders irrevocably nominate, constitute and appoint The Sellers will act through the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in its, his or her name and on its, his or her behalf who is deemed authorized to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of Sellers in the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointmentmanner set forth in this Section 23. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇Sellers have selected Lars ▇▇▇▇▇▇ relating ▇▇ the initial Representative.
(b) A Representative may resign at any time effective upon giving written notice to the determination each of the Merger Consideration parties hereto. The Sellers may at any time remove a Representative by giving thirty (30) days' written notice to him. If a Representative shall resign or be removed, the Sellers may by written election appoint any number of successor Representatives and will so appoint a successor if the determination, dispute and facilitating Representative in question was the disbursement only Representative in office. The Representative will promptly notify Purchaser in writing of the Milestone Payments pursuant to this Agreement, shall be binding upon resignation or removal of any Representative and of the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the sameappointment of any successor Representative.
(c) Each Securityholder agrees that: (i) Kardigan With respect to matters involving the Sellers, Purchaser and its Affiliates shall be able to Escrow Agent must rely conclusively upon any written instruction of a Representative. Purchaser and Escrow Agent must rely conclusively on the instructions authority of a Representative designated herein or by the Sellers until Purchaser and decisions Escrow Agent receive a written instruction naming another person as Representative to succeed to that position in the place of the Representative as to the determination of the Merger Consideration and the determinationexisting Representative, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to which instruction must be taken signed by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseSellers.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for may take any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement Sellers which it deems appropriate to the contrary, take with respect to any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended Claim for Losses received by it pursuant to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal Article 11 of the Representative or the termination of this Purchase Agreement.
(e) The Representative may resign on behalf of the Sellers, at any time upon 30 days’ written noticeand without regard to whether or not proceedings for the resolution or determination thereof have commenced, and may be removed for agree upon, resolve, settle or compromise any reason or no reason by approval from and by written consent of a majority in interest Claim under Article 11 of the Stockholders; provided, however, Purchase Agreement in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy sole and absolute discretion of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described hereinRepresentative.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, The Representative may on behalf of the SecurityholdersSellers, in its sole and absolute discretion, pursue, elect not to pursue, or terminate the Expense Fund Amount pursuit of any Claim or issue under Article 11 of the Purchase Agreement, including the conduct of arbitration or litigation of third-party claims, as provided herein and in the Agreement.
(g) Under no circumstances will the Representative be liable to an account designated Sellers for any act it may take in its capacity as Representative, or for the failure to take any action, or for the actions of Sellers, or for any damage, loss of expense suffered or incurred resulting from the exercise of the Representative's sole and absolute discretion in acting hereunder, except only for acts of gross negligence, bad faith or willful misconduct.
(h) The Representative shall be and hereby is authorized to retain counsel, accountants, or other professional assistants to assist in determining the validity of claims or in otherwise acting hereunder as a Representative. Any such expenses will be borne by the Sellers and may be taken from the proceeds of the Escrow Fund to be delivered to such Sellers.
(i) The Representative (the “Expense Fund”), which will not be used liable for any expense incurred on behalf of the Sellers or any of them in protesting, analyzing, resisting, arbitrating, litigating, negotiating with respect to, or defending any claim made in connection with this Agreement, or for any amounts otherwise expended in acting hereunder.
(j) On demand by the Representative, Sellers will contribute all sums demanded to pay the fees and expenses incurred by the Representative. The Securityholders will not receive any interest or earnings Representative on behalf of the Expense Fund and irrevocably transfer and assign to the Representative any ownership right that they may otherwise have had Sellers in any such interest or earnings. acting hereunder.
(k) The Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors keep the Sellers reasonably informed of actions taken by it in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closingacting hereunder.
Appears in 1 contract
Sources: Stock Purchase Agreement (South Texas Drilling & Exploration Inc)
Representative. (a) By the adoption of the Merger, and by virtue of the execution of this Agreement and/or or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, each of Unitholder irrevocably nominates, constitutes and appoints the Securityholders irrevocably nominate, constitute and appoint the Representative, as of the Closing, Representative as the true and lawful agent and attorney in fact attorney‑in‑fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreementssuch Unitholder, with full power in itshis, his her or her its name and on itshis, his her or her its behalf to act according to the terms of this Agreement and the Ancillary Agreements Transaction Documents 39881135.1 ACTIVE/118012393.3 in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary AgreementsTransaction Documents, (2) waiving rights, (3) discharging liabilities and obligations, (4) making all decisions relating to the determination of the Definitive Initial Purchase Consideration pursuant to Section 1.3, (5) determining, disputing and facilitating the disbursement of the Milestone Payments Payments, the Priority Review Voucher Payments, or Royalty Payments, (6) defending and settling of any claims under Section 7.6, (7) facilitating the disbursement of the Escrow Amount (or any portion thereof) in accordance with this Agreement and the Escrow Agreement, (8) receiving from Buyer and distributing to the respective Unitholders any written reports delivered by Buyer pursuant to Section 1.6(h), and (59) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary AgreementsTransaction Documents. Any and all such actions taken by the Representative on behalf of the Securityholders Unitholders as provided hereunder shall be binding on all SecurityholdersUnitholders, and Shareholder Representative Services LLC D▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more SecurityholdersUnitholders, or by operation of applicable lawLaw, whether by death or other event. As to TAMUS, the Representative must obtain written approval to defend or settle any claims of TAMUS. Furthermore, the power of attorney provided to the Representative by TAMUS is revocable and subject to termination.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ Buyer relating to the determination of the Merger Definitive Initial Purchase Consideration and pursuant to Section 1.3, the determination, dispute and facilitating the disbursement of the Milestone Payments Payments, the Priority Review Voucher Payments, or Royalty Payments, or the defense or settlement of any claims for which the Unitholders may be required to indemnify the Buyer Indemnified Parties pursuant to Section 7.6 hereof as well as facilitating the disbursement of all or any portion of the Escrow Amount pursuant to this AgreementAgreement and the Escrow Agreement in respect thereof, shall be binding upon the SecurityholdersUnitholders, and no Securityholder Unitholder shall have the right to object, dissent, protest or otherwise contest the same. As to TAMUS, the Representative must obtain written approval to defend or settle any claims of TAMUS.
(c) Each Securityholder Unitholder agrees that: (i) Kardigan Buyer and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Definitive Initial Purchase Consideration and pursuant to Section 1.3, the determination, dispute and facilitating the disbursement of the Milestone Payments Payments, the Priority Review Voucher Payments, or Royalty Payments, and the settlement of any claims for indemnification by a Buyer Indemnified Party pursuant to this Section 7.6 hereof, facilitating the disbursement of the Escrow Amount (or any portion thereof) via the Representative pursuant to the Escrow Agreement or any other actions required to be taken by the Representative under the Ancillary AgreementsTransaction Documents, and no Securityholder Unitholder shall have any cause of action against Kardigan or its Affiliates any Buyer Indemnified Party for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan Buyer shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary AgreementsTransaction Documents, including the determination of the Merger Estimated Initial Purchase Consideration and Definitive Initial Purchase Consideration pursuant to Section 1.3, the determination, dispute and disbursement of the Milestone Payments Payments, the Priority Review Voucher Payments, or Royalty Payments, or indemnification by the Unitholders pursuant to Section 7.6 hereof, only with the Representative (on behalf of the SecurityholdersUnitholders) and not with each Securityholderany Unitholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders Unitholders and no Securityholder Unitholder shall have any cause of action against the Representative, and the Representative shall have no liability to any Unitholder for any action taken or omitted, decision made or 39881135.1 ACTIVE/118012393.3 instruction given by the Representative under or in connection with this Agreement, the Escrow Agreement or any other agreements entered into in connection with the transactions contemplated by this Agreement, except for fraud, bad faith, gross negligence or willful misconduct by the Representative; (iv) the provisions of this Section 1.4 1.8 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder Unitholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 1.7 shall be binding upon the executors, heirs, legal representatives and successors of each SecurityholderUnitholder, and any references in this Agreement to a Securityholder Unitholder shall mean and include the successors to such SecurityholderUnitholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise. As to TAMUS, the Representative must obtain written approval to defend or settle any claims of TAMUS.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders Unitholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement, the Escrow Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss incurred and (i) is finally adjudicated to have been actually caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, Unitholders or the Company or (ii) relates directly to a dispute (including a claim for indemnification) between Buyer and the Unitholders. If not paid directly to the Representative will reimburse by the Securityholders the amount of Unitholders, any such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and Representative’s Fund; (ii) any other funds that become payable to the Securityholders under this Agreement Escrow Amounts at such time as any such amounts would otherwise be distributable to the SecurityholdersUnitholders; and (iii) any Milestone Payments, Priority Review Voucher Payments, or Royalty Payments at such time as any such amounts would otherwise be distributable to the Unitholders; provided, that while this Section 1.7 allows the Representative may to be paid from each of the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will prevent the Representative be required from seeking any remedies available to advance its own funds on behalf of the Securityholders it at law or otherwise. Notwithstanding anything in this Agreement to The Unitholders acknowledge and agree that the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at At the Closing, Kardigan Buyer shall deposit, on behalf of the Securityholders, the Expense Fund Amount deliver [***] Dollars ($[***]) to an account designated by the Representative (the “Expense Representative’s Fund”), which will Representative’s Fund shall be maintained by the Representative in a segregated client account. The Representative’s Fund shall be used for the purposes of paying directly, or reimbursing the Representative for, any Third Party expenses incurred in connection with the transactions contemplated by the Representativethis Agreement. The Securityholders Unitholders will not receive any interest or earnings on the Expense Representative’s 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 hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining distribute the balance of the Expense Representative’s Fund to Kardigan for further distribution to the Securityholders Unitholders in accordance with Section 2.3(d) (the “Expense Allocation Schedule. The Representative may make earlier distributions of such portions of the Representative’s Fund Distribution”)to the Unitholders to the extent the Representative determines, in its sole discretion, such portions are no longer required to be retained. In the event the Representative determines, in its sole discretion, that the Representative’s Fund is insufficient to satisfy expenses that are reasonably likely to be incurred, each Unitholder hereby authorizes the Representative to withhold 39881135.1 ACTIVE/118012393.3 amounts reasonably anticipated to be required from the disbursement of Milestone Payments, Priority Review Voucher Payments, and Royalty Payments. The Unitholders acknowledge that the Representative is not providing any investment supervision, recommendations or advice. The Representative shall have no responsibility or liability for any loss of principal of the Representative’s Fund other than as a result of its bad faith or fraud. For tax Tax purposes, the Expense Representative’s Fund will shall be treated as having been received and voluntarily set aside by the Securityholders Unitholders at the time of the Closing. Notwithstanding anything to the contrary herein, Buyer shall have no liability or obligation to any Person in connection with, or relating to, the Representative’s Fund.
(f) If D▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ resigns or subsequently becomes unable to serve as the Representative, the successor determined by operation of the next sentence shall, upon written notice to Buyer, become the Representative for all purposes hereunder. If, at any time, there is no Representative hereunder, the written agreement of Unitholders representing at least fifty-one percent (51%) of the outstanding Voting Units (as defined in the Operating Agreement) as of immediately prior to the Closing shall be sufficient to appoint a new Representative, and upon the approval by Buyer of such Representative, such appointment will be binding on all Unitholders, provided that Buyer may, after a reasonable time period during which there is no Representative hereunder, appoint a Person as Representative upon written notice to the Unitholders. If the Buyer appoints a Person as Representative in such fashion, the Unitholders may replace such Representative at any time (i) by the written agreement of Unitholders representing at least fifty-one percent (51%) of the outstanding Voting Units (as defined in the Operating Agreement) as of immediately prior to the Closing and (ii) upon the approval by the Buyer of such Representative (not to be unreasonably withheld). Notwithstanding anything to the contrary in this Agreement, no change in the identity of the Representative shall be effective unless and until Buyer receives notice of such change in accordance with Section 9.1.
Appears in 1 contract
Sources: Unit Purchase Agreement (Ultragenyx Pharmaceutical Inc.)
Representative. (a) By In order to efficiently administer the adoption transactions contemplated hereby, the Stockholders hereby designate the Representative as their representative, attorney-in-fact and agent for all purposes set forth herein and hereby exclusively authorize the Representative to:
(i) take all actions required or permitted by, and exercise all rights granted to, the Representative in this Agreement or the Escrow Agreement;
(ii) review all Contingent Payment Statements, deliver any Contingent Payment Objection Notice and discuss, negotiate, resolve and fully and finally settle on behalf of the MergerStockholders or Key Personnel, as applicable, any disputes with respect to the determination of each Final Contingent Payment Statement and the final determination of the amounts therein pursuant to Section 1.4;
(iii) review the Closing Statement, deliver any Objection Notice with respect thereto, and by virtue discuss, negotiate, resolve and fully and finally settle on behalf of the execution Stockholders, any Objection Items or other disputes with respect to the determination of this Agreement and/or acceptance Closing Net Working Capital and the final determination of any benefits thereofadjustment to the Purchase Price pursuant to Section 1.3;
(iv) take all action necessary in connection with the waiver of any condition to the obligations of the Company or the Stockholders to consummate the transactions contemplated hereby;
(v) discuss, including negotiate, resolve and fully and finally settle on behalf of the Stockholders any consideration payable claims for indemnification by any Buyer Indemnified Party pursuant to this Agreement;
(vi) give and receive notices and communications to or from Buyer (on behalf of itself or any other Buyer Indemnified Party) and/or the Escrow Agent relating to this Agreement, each the Escrow Agreement or any of the Securityholders irrevocably nominate, constitute transactions and appoint the Representative, as other matters contemplated hereby or thereby;
(vii) receive and accept service of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes legal process in connection with this Agreement, and any related agreements, with full power in its, his claim or her name and on its, his other proceeding against the Stockholders or her behalf to act according to the terms of Company arising under this Agreement or the Escrow Agreement;
(viii) negotiate, undertake, compromise, defend, resolve and settle any suit, proceeding or dispute under this Agreement or the Ancillary Agreements in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative Escrow Agreement on behalf of the Securityholders as provided hereunder shall be binding on Stockholders; execute and deliver all Securityholdersagreements, certificates and documents required or deemed appropriate by the Representative in connection with any of the transactions contemplated by this Agreement (including executing and delivering the Escrow Agreement);
(ix) execute and deliver all agreements, certificates and documents required or deemed appropriate by the Representative in connection with any of the transactions contemplated by this Agreement (including executing and delivering the Escrow Agreement);
(x) engage special counsel, accountants and other advisors and incur such other expenses in connection with any of the transactions contemplated by this Agreement or the Escrow Agreement;
(xi) agree to and approve of modifications or amendments to this Agreement or to the Escrow Agreement, and Shareholder Representative Services LLC hereby accepts executing and delivering agreements of such appointment. This power of attorney modification or amendment;
(xii) take all other actions (including defending or enforcing any actions, and all authority hereby conferred is coupled with an interestto make, is granted deliver and sign any certificate, notice, consent or instrument required or permitted to be made or delivered under this Agreement or under the documents referred to in consideration this Agreement) necessary or appropriate in the reasonable judgment of the mutual covenants and agreements made hereinRepresentative in connection with any transaction contemplated hereunder or for the accomplishment of the foregoing, shall be irrevocable and shall not be terminated by any act in each case without having to seek or obtain the consent of any one or more Securityholders, or by operation of applicable law, whether by death or other eventPerson under any circumstance.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ relating to hereby accepts his appointment as the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the sameinitial Representative.
(c) Each Securityholder agrees that: (i) Kardigan Any notice or communication given or received by, and its Affiliates any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Representative 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 the Stockholders and shall be able final, binding and conclusive upon each such Stockholder; and Buyer, each Buyer Indemnified Party and the Escrow Agent shall be entitled to rely conclusively upon any 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 Stockholder. Buyer, each Buyer Indemnified Party and the Escrow Agent are hereby relieved from any liability to any Person for any acts done by them in accordance with any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Representative.
(d) The Representative shall not be liable to any Stockholder for any act done or omitted under this Agreement, the Escrow Agreement, any other Ancillary Agreement or certificate or instrument contemplated hereunder while acting in good faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. Each Stockholder, severally and not jointly, in accordance with his Pro Rata Basis, shall indemnify the Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the instructions and decisions part of the Representative as to the determination and arising out of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the acceptance or administration of its duties under this Agreement, the Escrow Agreement, any other Ancillary AgreementsAgreement or certificate or instrument contemplated hereunder. To the extent that any distributions of the Escrow Amount are being made to the Stockholders pursuant to the terms of the Escrow Agreement, the Representative may, upon written notice to Buyer and the Stockholders, receive reimbursement from the Stockholders directly out of any such distributions that are being made to the Stockholders for any and all expenses, charges and liabilities, including the determination of the Merger Consideration and the determinationattorneys’ fees, dispute and disbursement of the Milestone Payments only with reasonably incurred by the Representative (on behalf in the performance or discharge of his rights and obligations under this Agreement; provided, however, that neither Buyer nor the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder Company shall have any cause liability with respect to such items.
(e) The Stockholders hereby agree that:
(i) remedies available at Law for any breach of the provisions of this Section 1.5 are inadequate; therefore, the Buyer shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if the Buyer brings an action against to enforce the Representativeprovisions of this Section 1.5; and
(ivii) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 1.5 shall be binding upon the executors, heirs, legal representatives representatives, personal representatives, successors and successors permitted assigns of the Buyer, the Representative, and each SecurityholderStockholder, and any references in this Agreement to a Securityholder Stockholder or the Stockholders shall mean and include the successors to such Securityholder’s the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws Laws of descent and distribution or otherwise.
(df) The Representative will incur no liability in connection with its services pursuant to this Agreement Stockholders and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend Buyer acknowledge and hold harmless agree that the Representative from and against any and all lossescan be removed and/or replaced upon the affirmative written consent of Stockholders holding a majority of the aggregate Pro Rata Basis percentages set forth on Exhibit A hereto, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses upon not less than ten (including 10) days’ prior written notice to Buyer. Upon the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct due removal and/or replacement of the Representative, Buyer and the newly appointed Representative will reimburse the Securityholders the amount of such indemnified Representative Loss shall provide prompt written notice to the extent attributable to Escrow Agent concerning such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreementreplacement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Representative. (a) By the adoption of the MergerMich▇▇▇ ▇. ▇▇▇▇ ▇▇▇ll, and by virtue of the execution of this Agreement and/or acceptance Merger and the resolutions to be adopted by the Shareholders, be irrevocably appointed attorney-in-fact and authorized and empowered to act, for and on behalf of any benefits thereof, including any consideration payable pursuant to this Agreement, each or all of the Securityholders irrevocably nominate, constitute and appoint Shareholders (with full power of substitution in the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, for all purposes 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 any related agreementssuch other matters as are reasonably necessary for the consummation of the Transactions including, with full power in itswithout limitation, his or her name and on its, his or her behalf to act according 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 terms of this Agreement and Merger, being referred to herein as the Ancillary Agreements in the discretion of the "Representative, and to do all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements"). Any and all such actions taken by the The Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by liable, in his capacity as representative of such Shareholders, to any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions Shareholders and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement their respective affiliates or any other actions required person with respect to any action taken or omitted to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include or the successors to Escrow Agreement in his capacity as representative of such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any Shareholders unless such action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative results from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising or arises out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or negligence, willful misconduct or bad faith on the part of the Representative, . Compuware and the Representative will reimburse the Securityholders the amount Surviving Corporations and each of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ respective affiliates shall be entitled to rely on such appointment and treat such Representative as the decisions and actions duly appointed attorney-in-fact of each Shareholder. Each Shareholder who votes in favor of the prior Representative as described herein.
(f) Pursuant Merger pursuant to Section 2.2(c)the terms hereof, at by such vote, without any further action, and each Shareholder who receives any shares of Compuware Stock in connection with the ClosingMerger, Kardigan shall depositby acceptance 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 Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the 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 hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of ClosingShareholders.
Appears in 1 contract
Representative. (a) By voting in favor of the adoption of this Agreement, the approval of the principal terms of the Merger, and by virtue the consummation of the execution of this Agreement and/or acceptance of any Merger or participating in the Merger and receiving the benefits thereof, including any the right to receive the consideration payable pursuant to this Agreementin connection with the Merger, each of Equityholder shall be deemed to have approved the Securityholders irrevocably nominatedesignation of, constitute and appoint the Representativehereby designates, as of the Closing, Shareholder Representative Services LLC as the true and lawful agent and attorney in fact of each Securityholder, Representative for all purposes in connection with this Agreement and any Ancillary Agreement, including to give and any related agreements, receive notices and communications in connection with full power in its, his or her name and on its, his or her behalf to act according to the terms of this Agreement and the Ancillary Agreements in transactions contemplated hereby, to authorize and agree to adjustments to the discretion Cash Payment and Earn-Out Amount under Article 1 and other applicable provisions of this Agreement, to authorize distribution of the RepresentativeAmount, and to do take all things and to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments Equityholders pursuant to this Agreement, shall be binding upon the SecurityholdersEscrow Agreement and any Ancillary Agreement to which such Equityholder is a party, and no Securityholder to take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing. More specifically, the Representative shall have the right authority to object, dissent, protest make all decisions and determinations and to take all actions (including giving Consents or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able agreeing to rely conclusively on the instructions and decisions of the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant any amendments to this Agreement, Escrow Agreement or any Ancillary Agreement to which it is a party or to the termination hereof or thereof) required or permitted hereunder on behalf of each such Equityholder, and any such action, decision or determination so made or taken shall be deemed the action, decision or determination of each such Equityholder, and any notice, communication, document, certificate or information required (other actions than any notice required by Law or under the Company’s Organizational Documents) to be taken by given to any Equityholder hereunder or pursuant to any Ancillary Agreement shall be deemed so given if given to the Representative. Without limiting the generality of the foregoing, the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or authorized, in connection with the Ancillary AgreementsClosing, including to execute all certificates, documents and agreements on behalf of and in the determination name of the Merger Consideration Equityholders necessary to effectuate the Closing and the determination, dispute and disbursement of the Milestone Payments only with the related transactions. The Representative (shall be authorized to take all actions on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have Equityholders in connection with the transactions contemplated hereby; and (v) the provisions any claims made under Articles 8 or 9 of this Section 1.4 shall be binding upon the executorsAgreement (including Equityholder Specific Claims), heirs, legal representatives and successors of each Securityholderto defend or settle such claims, and to make payments in respect of such claims on behalf of the Equityholders. The Representative may resign at any references in this Agreement time. The Equityholders may remove or replace the Representative by a vote of holders that own a majority of the Common Stock immediately prior to a Securityholder shall mean Closing upon not less than ten (10) Business Days’ prior written notice to Buyer. No bond will be required of the Representative. Notices or communications to or from the Representative from and include after Closing will constitute notice to or from each of the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseEquityholders.
(db) The Representative will incur no liability of any kind with respect to any action or omission by the Representative in connection with its the Representative’s services pursuant to this Agreement and any related agreements Ancillary Agreement, except to in the extent event of liability directly resulting from its the Representative’s gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders Equityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement execution and performance of its rights under this Agreement or and any other agreement entered into in connection with the transactions contemplated by this Agreementagreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders Equityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. If not paid directly to the Representative by the Equityholder, any such Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and Fund, (ii) any other funds that become payable to the Securityholders under this Agreement amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Equityholders, and (iii) from any Earn-out Payments at such time as any such amounts would otherwise be distributable to the SecurityholdersEquityholders; provided, that while this section allows the Representative may to be paid from the aforementioned sources of funds, this does not relieve the Securityholders Equityholders 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 Securityholders Equityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders Equityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunderunder this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(c) A decision, act, consent or instruction of the Representative will constitute a decision of all the Equityholders and will be final, binding and conclusive upon each such Equityholder, and Buyer may rely upon any such decision, act, consent or instruction of the Representative as being the decision, act, consent or instruction of each such Equityholder. Buyer Indemnitees are hereby relieved from any Adverse Consequences to any Person for any acts done by such Buyer Indemnitees in accordance with such decision, act, consent or instruction of the Representative.
(d) Notwithstanding anything in this Section 12.15 to the contrary, the Representative shall have no power or authority to act on behalf of any Equityholder with respect to any Equityholder Specific Claim.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent of a majority in interest of the Stockholders; provided, however, in no event shall Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled to rely on the decisions and actions of the prior Representative as described herein.
(f) Pursuant to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for any expenses incurred by the Representative. The Securityholders Equityholders will not receive any interest or earnings on the 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 Expense Fund other than as a result of its gross negligence or willful misconduct. 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. As soon as practicable following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Expense Fund to Kardigan the Exchange Agent for further distribution to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”)Equityholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders Shareholders at the time of Closing.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Livongo Health, Inc.)
Representative. (a) By the adoption For purposes of the Merger, and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreement, immediately and automatically upon the Required Vote, and without further action on the part of any Company Securityholder, each Company Securityholder shall be deemed to have consented to the appointment of ▇▇▇▇▇▇ Cell as his, her or its representative and the Securityholders irrevocably nominate, constitute attorney-in-fact for and appoint the Representative, as of the Closing, as the true and lawful agent and attorney in fact on behalf of each such Company Securityholder, for and the taking by the Representative of any and all purposes actions and the making of any decisions required or permitted to be taken by him or her under this Agreement, including the disposition, settlement or other handling of all Liability Claims. The Company Securityholders will be bound by all actions taken by the Representative in connection with this Agreement, and Parent shall be entitled to rely on any related agreementsnotice or communication to or by, or decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Representative. Without limiting the generality of the foregoing, each decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Representative will constitute a decision of all of the Indemnifying Securityholders and any other Company Securityholders, and will be final, binding and conclusive upon each ***CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THIS OMITTED INFORMATION.*** Indemnifying Securityholder and any other Company Securityholder, and Parent may rely upon any such decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Representative as being that of each and every such Indemnifying Securityholder and Company Securityholder. Parent is hereby relieved from any liability to any Indemnifying Securityholder or other Company Securityholder for any acts done by it in accordance with full power such decision, act, consent or instruction of the Representative. All expenses, if any, incurred by the Representative in its, connection with the performance of his or her name duties as the Representative will be borne and on its, his or her behalf to act paid by the Indemnifying Securityholders according to their Holdback Percentages (the terms “Representative Expenses”). With respect to any Claims Notice delivered to the Representative that states a claim under Section 4.3(a)(9) with respect to an individual Indemnifying Securityholder or group of this Agreement Indemnifying Securityholders, the Representative shall be entitled to rely on the directions of such Indemnifying Securityholder or Indemnifying Securityholders, as applicable, with no liability for any acts done in accordance with such direction. Following the termination of the Claim Period, the resolution of all Liability Claims and the Ancillary Agreements in satisfaction of all claims made by Indemnified Parties for Losses, the discretion Representative shall have the right to recover Representative Expenses from the remaining Indemnification Holdback Shares prior to any distribution to the Indemnifying Securityholders. No bond will be required of the Representative, and the Representative will not receive any compensation for its services. Notices or communications to do all things and or from the Representative shall constitute notice to perform all acts, including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement or from each of the Milestone Payments and (5) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Ancillary Agreements. Any and all such actions taken by the Representative on behalf of the Securityholders as provided hereunder shall be binding on all Indemnifying Securityholders, and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be irrevocable and shall not be terminated by any act of any one or more Securityholders, or by operation of applicable law, whether by death or other event.
(b) All decisions and actions by In the Representative, including any agreement between event of a vacancy in the position of Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest (or otherwise contest the same.
(c) Each Securityholder agrees that: (i) Kardigan and its Affiliates shall be able to rely conclusively on the instructions and decisions refusal or incapability of the Representative as to the determination of the Merger Consideration and the determinationserve), dispute and facilitating the disbursement of the Milestone Payments pursuant to this Agreement or any other actions required to be taken by the Representative under the Ancillary Agreements, and no Securityholder shall have any cause of action against Kardigan or its Affiliates for any action taken by such Person in reliance upon the instructions or decisions of the Representative; (ii) Kardigan shall be required to file and negotiate any claims or disputes related to or in connection with the Ancillary Agreements, including the determination of the Merger Consideration and the determination, dispute and disbursement of the Milestone Payments only with the Representative (on behalf of the Securityholders) and not with each Securityholder; (iii) all actions, decisions and instructions of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause of action against the Representative; (iv) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Securityholder, and any references in this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) The Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s enforcement of its rights under this Agreement or any other agreement entered into in connection with the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, the Representative will reimburse the Securityholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Representative be required to advance its own funds on behalf of the Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunder. The foregoing indemnities will survive the Closing, resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 days’ written notice, and may be removed for any reason or no reason by approval from and by written consent holders of a majority in interest of the Stockholders; provided, however, in no event remaining Indemnification Holdback Shares shall Representative be removed without the Stockholders having first appointed appoint a new Representative who shall assume by written consent within ten days after such duties vacancy and immediately upon the removal of Representative. Notice of such vote or thereafter send to Parent notice and a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇, signed by such appointment to be effective upon the later holders of a majority in interest of the date indicated in such consent or remaining Indemnification Holdback Shares; except that if the date vacancy continues for more than ten 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 received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled delivered to rely on the decisions and actions each of the prior Representative as described herein.
(f) Pursuant Indemnifying Securityholders at their addresses last known to Section 2.2(c), at the Closing, Kardigan shall deposit, on behalf of the Securityholders, the Expense Fund Amount to an account designated by the Representative (the “Expense Fund”)Parent, which will be used the address set forth in the Spreadsheet unless Representative provides notice to Parent of a different address in the manner described in Section 6.3. Any successor Representative appointed by the holders of a majority interest of the remaining Indemnification Holdback Shares must have been a securityholder of the Company prior to the Effective Time or, in the case of a securityholder that is an entity, a partner, employee or affiliate of a securityholder of the Company prior to the Effective Time. The appointment of any successor Representative shall be subject to the approval of Parent, which shall not be unreasonably withheld.
(c) The Representative shall not be liable to any Indemnifying Securityholder for any expenses incurred by act done or omitted hereunder as the RepresentativeRepresentative while acting in good faith and any act done or omitted in accordance with the advice of counsel or other ***CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THIS OMITTED INFORMATION.*** expert shall be conclusive evidence of such good faith. The Indemnifying Securityholders will not receive shall jointly and severally indemnify the Representative and hold him harmless against any interest loss, liability or earnings expense incurred without gross negligence or bad faith on the Expense Fund and irrevocably transfer and assign to part of the Representative any ownership right that they may otherwise and arising out of or in connection with the acceptance or administration of his or her duties hereunder.
(d) The Representative shall have had in any such interest reasonable access to information about the Interim Surviving Entity and the Surviving Entity and the reasonable assistance of the Company’s former officers and employees who are employed by Parent or earningsits Affiliates for purposes of performing his or her duties and exercising his or her rights hereunder. The Representative will hold these funds separate shall treat confidentially and not use or disclose the terms of this Agreement or any nonpublic information from its corporate funds or about the Parent, the Interim Surviving Entity and will not voluntarily make these funds available the Surviving Entity, or any Indemnified Person to its creditors in anyone (except to the event of bankruptcy. As soon as practicable following the completion of Indemnifying Securityholders or the Representative’s responsibilitiesemployees, attorneys, accountants, financial advisors or authorized representatives on a need to know basis, in each case who agree to treat such information confidentially). The Representative shall enter into a separate confidentiality agreement prior to being provided access to such information if requested by Parent.
(e) By its signature to this Agreement, subject to the occurrence of the Required Vote, the initial Representative will deliver any remaining balance 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 Expense Fund to Kardigan for further distribution Representative pursuant to the Securityholders in accordance with Section 2.3(d) (the “Expense Fund Distribution”). For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time terms of Closingthis Agreement.
Appears in 1 contract